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U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:17-cv-09447-JPO

Richardson et al v. City of New York Assigned to: Judge J. Paul Oetken Cause: 42:1981ra Race Discrimination

Date Filed: 12/01/2017 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff
Annette Richardson on behalf of themselves and all others similarly situated

represented by Aisha Rich Mehri & Skalet PLLC 1250 Connecticut Ave, NW Suite 300 Suite 300 Washington, DC 20036 202-822-5100 Email: arich@findjustice.com ATTORNEY TO BE NOTICED

Ezra Bronstein Mehri & Skalet, PLLC 1250 Connecticut Avenue, N.W., Suite 300 Washington, DC 20036 202-822-5100 Fax: 202-822-4997 Email: ebronstein@findjustice.com ATTORNEY TO BE NOTICED

Lauren Nussbaum Mehri & Skalet, PLLC 1250 Connecticut Avenue, N.W., Suite 300 Washington, DC 20036 202-822-5100 Fax: 202-822-4997 Email: lnussbaum@findjustice.com TERMINATED: 09/10/2020

Plaintiff
Deborah Bowman on behalf of themselves and all others similarly situated

Matthew L. Berman Valli Kane & Vagnini, LLP 600 Old Country Rd., Ste. 519 Garden City, NY 11530 (516)-203-7180 Fax: (516)-706-0248 Email: mberman@vkvlawyers.com ATTORNEY TO BE NOTICED
Michael Lieder Mehri & Skalet, PLLC 1250 Connecticut Avenue, N.W., Suite 300 Washington, DC 20036 (202)-822-5100 Email: mlieder@findjustice.com ATTORNEY TO BE NOTICED
Robert John Valli , Jr Valli Kane & Vagnini, LLP 600 Old Country Rd., Ste. 519 Garden City, NY 11530 516-203-7180 Fax: 516-706-0248 Email: rvalli@vkvlawyers.com ATTORNEY TO BE NOTICED
Sara Wyn Kane Valli Kane & Vagnini, LLP 600 Old Country Rd., Ste. 519 Garden City, NY 11530 (516) 203-7180 Fax: (516) 706-0248 Email: skane@vkvlawyers.com ATTORNEY TO BE NOTICED
represented by Aisha Rich (See above for address) ATTORNEY TO BE NOTICED
Ezra Bronstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Liza Horsley on behalf of themselves and all others similarly situated TERMINATED: 04/26/2019
Plaintiff

Lauren Nussbaum (See above for address) TERMINATED: 09/10/2020
Matthew L. Berman (See above for address) ATTORNEY TO BE NOTICED
Michael Lieder (See above for address) ATTORNEY TO BE NOTICED
Robert John Valli , Jr (See above for address) ATTORNEY TO BE NOTICED
Sara Wyn Kane (See above for address) ATTORNEY TO BE NOTICED
represented by Aisha Rich (See above for address) ATTORNEY TO BE NOTICED
Ezra Bronstein (See above for address) ATTORNEY TO BE NOTICED
Matthew L. Berman (See above for address) ATTORNEY TO BE NOTICED
Michael Lieder (See above for address) ATTORNEY TO BE NOTICED
Robert John Valli , Jr (See above for address) ATTORNEY TO BE NOTICED
Sara Wyn Kane (See above for address) ATTORNEY TO BE NOTICED

Debra Poe on behalf of themselves and all others similarly situated
Plaintiff Dino Riojas on behalf of themselves and all others similarly situated

represented by Aisha Rich (See above for address) ATTORNEY TO BE NOTICED
Ezra Bronstein (See above for address) ATTORNEY TO BE NOTICED
Lauren Nussbaum (See above for address) TERMINATED: 09/10/2020
Matthew L. Berman (See above for address) ATTORNEY TO BE NOTICED
Michael Lieder (See above for address) ATTORNEY TO BE NOTICED
Robert John Valli , Jr (See above for address) ATTORNEY TO BE NOTICED
Sara Wyn Kane (See above for address) ATTORNEY TO BE NOTICED
represented by Aisha Rich (See above for address) ATTORNEY TO BE NOTICED
Ezra Bronstein (See above for address) ATTORNEY TO BE NOTICED
Lauren Nussbaum (See above for address) TERMINATED: 09/10/2020
Matthew L. Berman (See above for address) ATTORNEY TO BE NOTICED
Michael Lieder

Plaintiff Arlene Simmons on behalf of themselves and all others similarly situated TERMINATED: 01/09/2018
Plaintiff Stephanie Thomas on behalf of themselves and all others similarly situated

(See above for address) ATTORNEY TO BE NOTICED
Robert John Valli , Jr (See above for address) ATTORNEY TO BE NOTICED
Sara Wyn Kane (See above for address) ATTORNEY TO BE NOTICED
represented by Aisha Rich (See above for address) ATTORNEY TO BE NOTICED
Ezra Bronstein (See above for address) ATTORNEY TO BE NOTICED
Matthew L. Berman (See above for address) ATTORNEY TO BE NOTICED
Michael Lieder (See above for address) ATTORNEY TO BE NOTICED
Robert John Valli , Jr (See above for address) ATTORNEY TO BE NOTICED
Sara Wyn Kane (See above for address) ATTORNEY TO BE NOTICED
represented by Aisha Rich (See above for address) ATTORNEY TO BE NOTICED
Ezra Bronstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jon Watson
Plaintiff Brenda McKiver

Lauren Nussbaum (See above for address) TERMINATED: 09/10/2020
Matthew L. Berman (See above for address) ATTORNEY TO BE NOTICED
Michael Lieder (See above for address) ATTORNEY TO BE NOTICED
Robert John Valli , Jr (See above for address) ATTORNEY TO BE NOTICED
Sara Wyn Kane (See above for address) ATTORNEY TO BE NOTICED
represented by Aisha Rich (See above for address) ATTORNEY TO BE NOTICED
Ezra Bronstein (See above for address) ATTORNEY TO BE NOTICED
Lauren Nussbaum (See above for address) TERMINATED: 09/10/2020
Michael Lieder (See above for address) ATTORNEY TO BE NOTICED
represented by Aisha Rich (See above for address) ATTORNEY TO BE NOTICED
Ezra Bronstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Erica Richardson
V. Defendant City of New York

Lauren Nussbaum (See above for address) TERMINATED: 09/10/2020
Michael Lieder (See above for address) ATTORNEY TO BE NOTICED
represented by Aisha Rich (See above for address) ATTORNEY TO BE NOTICED
Ezra Bronstein (See above for address) ATTORNEY TO BE NOTICED
Lauren Nussbaum (See above for address) TERMINATED: 09/10/2020
Michael Lieder (See above for address) ATTORNEY TO BE NOTICED
represented by Yuval Rubinstein New York City Law Department 100 Church Street New York, NY 10007 (212)-788-8682 Fax: (212)-341-3934 Email: yrubinst@law.nyc.gov ATTORNEY TO BE NOTICED

Date Filed 12/01/2017

# Docket Text
1 FILING ERROR - DEFICIENT PLEADING - SIGNATURE ERROR - COMPLAINT against City of New York. (Filing Fee $ 400.00, Receipt Number 0208-14426682)Document filed by Arlene

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Simmons, Annette Richardson, Debra Poe, Liza Horsley, Stephanie Thomas, Deborah Bowman, Dino Riojas.(Kane, Sara) Modified on 12/4/2017 (sj). (Entered: 12/01/2017)
2 CIVIL COVER SHEET filed. (Kane, Sara) (Entered: 12/01/2017)
3 NOTICE OF APPEARANCE by Robert John Valli, Jr on behalf of Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas. (Valli, Robert) (Entered: 12/01/2017)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Sara Wyn Kane to RE-FILE Document No. 1 Complaint. The filing is deficient for the following reason(s): the pleading was not signed. Re-file the pleading using the event type Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF select the individually named filer/filers - select the individually named party/parties the pleading is against. (sj) (Entered: 12/04/2017)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge J. Paul Oetken. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (sj) (Entered: 12/04/2017)
Magistrate Judge Barbara C. Moses is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (sj) (Entered: 12/04/2017)
Case Designated ECF. (sj) (Entered: 12/04/2017)
4 COMPLAINT against City of New York. Document filed by Arlene Simmons, Annette Richardson, Debra Poe, Liza Horsley, Stephanie Thomas, Deborah Bowman, Dino Riojas.(Kane, Sara) (Entered: 12/04/2017)
5 FILING ERROR - ELECTRONIC FILING OF NON-ECF DOCUMENT - NOTICE OF VOLUNTARY DISMISSAL Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, the

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plaintiff(s) and or their counsel(s), hereby give notice that the abovecaptioned action is voluntarily dismissed, without prejudice against the defendant(s) City of New York. Document filed by Arlene Simmons. (Kane, Sara) Modified on 12/26/2017 (dt). (Entered: 12/22/2017)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NONECF DOCUMENT ERROR. Note to Attorney Sara Kane to EMAIL Document No. 5 Notice of Voluntary Dismissal to judgments@nysd.uscourts.gov This document is not filed via ECF. (dt) (Entered: 12/26/2017)
6 MOTION for Michael Lieder to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14522565. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas. (Attachments: # 1 Affidavit Affidavit for Application, # 2 Exhibit Certificate of Good Standing, # 3 Proposed Order)(Lieder, Michael) (Entered: 12/28/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 6 MOTION for Michael Lieder to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 020814522565. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 12/29/2017)
7 NOTICE OF VOLUNTARY DISMISSAL PURSUANT TO F.R.C.P. 41(a)(1)(A)(i): Pursuant to F.R.C.P. 41(a)(1)(A)(i), Plaintiff ARLENE SIMMONS hereby voluntarily dismisses all claims in this action without prejudice as to Defendant City of New York. Arlene Simmons (on behalf of themselves and all others similarly situated) terminated. (Signed by Judge J. Paul Oetken on 1/9/2018) (ap) (Entered: 01/09/2018)
8 WAIVER OF SERVICE RETURNED EXECUTED. City of New York waiver sent on 12/7/2017, answer due 2/5/2018. Document filed by Annette Richardson; Debra Poe; Liza Horsley; Stephanie Thomas; Deborah Bowman; Dino Riojas. (Kane, Sara) (Entered: 01/09/2018)
9 ORDER granting 6 Motion to Appear Pro Hac Vice. GRANTED (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 01/12/2018)
10 NOTICE OF APPEARANCE by Yuval Rubinstein on behalf of City of New York. (Rubinstein, Yuval) (Entered: 02/05/2018)

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11 MOTION to Dismiss the Complaint., MOTION to Stay re: 4 Complaint Stay Discovery. Document filed by City of New York.(Rubinstein, Yuval) (Entered: 02/05/2018)
12 MEMORANDUM OF LAW in Support re: 11 MOTION to Dismiss the Complaint. MOTION to Stay re: 4 Complaint Stay Discovery. . Document filed by City of New York. (Rubinstein, Yuval) (Entered: 02/05/2018)
13 DECLARATION of Yuval Rubinstein in Support re: 11 MOTION to Dismiss the Complaint. MOTION to Stay re: 4 Complaint Stay Discovery.. Document filed by City of New York. (Rubinstein, Yuval) (Entered: 02/05/2018)
14 FILING ERROR - ELECTRONIC FILING OF NON-ECF DOCUMENT - CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 13 Declaration in Support of Motion, 11 MOTION to Dismiss the Complaint. MOTION to Stay re: 4 Complaint Stay Discovery., 12 Memorandum of Law in Support of Motion addressed to Judge J. Paul Oetken from Robert J. Valli, Jr. and Yuval Rubinstein dated 2/16/2018. Document filed by Annette Richardson. Return Date set for 3/5/2018 at 11:59 PM.(Valli, Robert) Modified on 4/17/2018 (db). (Entered: 02/19/2018)
15 ORDER granting 14 Letter Motion for Extension of Time to File Response/Reply. GRANTED. PLAINTIFFS SHALL FILE THEIR OPPOSITION OR OTHERWISE RESPOND TO DEFENDANTS' MOTION TO DISMISS ON OR BEFORE MARCH 5, 2018. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 02/20/2018)
16 MOTION for Cyrus Mehri to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14725276. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas. (Attachments: # 1 Affidavit of Cyrus Mehri in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Connecticut Certificate of Good Standing, # 3 District of Columbia Certificate of Good Standing, # 4 Text of Proposed Order for Admission Pro Hac Vice)(Lieder, Michael) (Entered: 02/21/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 16 MOTION for Cyrus Mehri to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14725276. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 02/21/2018)

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17 MEMORANDUM OF LAW in Opposition re: 11 MOTION to Dismiss the Complaint. MOTION to Stay re: 4 Complaint Stay Discovery. . Document filed by Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas. (Attachments: # 1 Exhibit Exhibit A)(Lieder, Michael) (Entered: 03/05/2018)
18 CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Dismiss the Complaint. MOTION to Stay re: 4 Complaint Stay Discovery. addressed to Judge J. Paul Oetken from Yuval Rubinstein dated March 7, 2018. Document filed by City of New York.(Rubinstein, Yuval) (Entered: 03/07/2018)
19 ORDER granting 18 Letter Motion for Extension of Time to File Response/Reply. GRANTED. DEFENDANT SHALL FILE ITS REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS ON OR BEFORE MARCH 20,2018. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 03/08/2018)
20 ORDER granting 16 Motion to Appear Pro Hac Vice. GRANTED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 03/12/2018)
21 REPLY MEMORANDUM OF LAW in Support re: 11 MOTION to Dismiss the Complaint. MOTION to Stay re: 4 Complaint Stay Discovery. . Document filed by City of New York. (Rubinstein, Yuval) (Entered: 03/20/2018)
22 LETTER MOTION to Stay Rule 26(f) Conference and Civil Case Management Plan and Scheduling Order addressed to Judge J. Paul Oetken from Yuval Rubinstein dated April 16, 2018. Document filed by City of New York.(Rubinstein, Yuval) (Entered: 04/16/2018)
23 LETTER RESPONSE to Motion addressed to Judge J. Paul Oetken from Michael D. Lieder dated April 17, 2018 re: 22 LETTER MOTION to Stay Rule 26(f) Conference and Civil Case Management Plan and Scheduling Order addressed to Judge J. Paul Oetken from Yuval Rubinstein dated April 16, 2018. . Document filed by Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas. (Lieder, Michael) (Entered: 04/17/2018)
24 ORDER granting 22 Letter Motion to Stay. GRANTED. DISCOVERY IS STAYED PENDING RESOLUTION OF DEFENDANT'S MOTION TO DISMISS. SO ORDERED. (HEREBY ORDERED by

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Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 04/17/2018)
25 NOTICE of Recent Authority re: 11 MOTION to Dismiss the Complaint. MOTION to Stay re: 4 Complaint Stay Discovery.. Document filed by City of New York. (Rubinstein, Yuval) (Entered: 05/08/2018)
26 OPINION AND ORDER re: 11 MOTION to Dismiss the Complaint MOTION to Stay re: 4 Complaint Stay Discovery filed by City of New York. For the foregoing reasons, the City's motion to stay discovery is DENIED as moot, Plaintiffs' claims are DISMISSED as moot to the extent they allege discrimination against EMS employees, and the City's motion to dismiss is GRANTED as to Plaintiffs' Section 1981 and NYCHRL claims insofar as they allege pay discrimination and as to all federal claims accruing prior to December 1, 2014. The City's motion to dismiss, however, is DENIED as to (1) Plaintiffs' Section 1981 claims accruing after December 1, 2014, insofar as they allege a pattern or practice of intentional discrimination in hiring and job placement; (2) Plaintiffs' NYCHRL claims insofar as they allege a pattern or practice of intentional discrimination in hiring and job placement; (3) and Plaintiffs' NYCHRL claims insofar as they allege that the City's hiring and job-placement practices have a disparate impact on African Americans. The Clerk of Court is directed to close the motion at Docket Number 11. SO ORDERED. (Signed by Judge J. Paul Oetken on 9/28/2018) (anc) Modified on 10/1/2018 (anc). (Entered: 09/28/2018)
27 CONSENT LETTER MOTION for Extension of Time to File Answer re: 4 Complaint addressed to Judge J. Paul Oetken from Yuval Rubinstein dated October 9, 2018. Document filed by City of New York.(Rubinstein, Yuval) (Entered: 10/09/2018)
28 ORDER granting 27 Letter Motion for Extension of Time to Answer. GRANTED. DEFENDANT SHALL ANSWER OR OTHERWISE RESPOND TO THE COMPLAINT ON OR BEFORE OCTOBER 26, 2018. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (bh) (Entered: 10/09/2018)
29 ANSWER to 4 Complaint with JURY DEMAND. Document filed by City of New York.(Rubinstein, Yuval) (Entered: 10/26/2018)
30 ORDER: Counsel for all parties are directed to appear for an initial pretrial conference with the Court on November 15, 2018, at 12:00 p.m. The conference will be held in Courtroom 706 of the Thurgood Marshall United States Court House, 40 Foley Square, New York, New York. Counsel who appear at the pretrial conference must be authorized

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to negotiate terms of settlement. And as set forth herein. SO ORDERED. Initial Conference set for 11/15/2018 at 12:00 PM in Courtroom 706, 40 Centre Street, New York, NY 10007 before Judge J. Paul Oetken. (Signed by Judge J. Paul Oetken on 10/29/2018) (ama) (Entered: 10/29/2018)
31 ORDER OF AUTOMATIC REFERRAL TO MEDIATION (See M-10468 Second Amended Standing Order). Please reference the Pilot Discovery Protocols, attached, and the Mediation Program Procedures (http://nysd.uscourts.gov/mediation). E-mail MediationOffice@nysd.uscourts.gov, telephone 212-805-0643. Mediator to be Assigned by 11/8/2018. (Signed by Judge Loretta A. Preska on 10/1/2015) (mf) (Entered: 10/29/2018)
32 PROPOSED CASE MANAGEMENT PLAN. Document filed by Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas. (Attachments: # 1 Exhibit Protective Order) (Lieder, Michael) (Entered: 11/12/2018)
33 LETTER MOTION for Leave to File Amended Complaint addressed to Judge J. Paul Oetken from Michael Lieder dated November 13, 2018. Document filed by Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas. (Attachments: # 1 Exhibit Exhibit A)(Lieder, Michael) (Entered: 11/13/2018)
34 NOTICE OF APPEARANCE by Matthew L. Berman on behalf of Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas. (Berman, Matthew) (Entered: 11/15/2018)
Minute Entry for proceedings held before Judge J. Paul Oetken: Initial Pretrial Conference held on 11/15/2018. Next conference scheduled for 1/10/2019 at 3:00 pm. (bh) (Entered: 11/15/2018)
35 PROTECTIVE ORDER:...regarding procedures to be followed that shall govern the handling of confidential material. And as set forth herein. SO ORDERED. (Signed by Judge J. Paul Oetken on 11/15/2018) (ama) (Entered: 11/15/2018)
36 LETTER RESPONSE in Opposition to Motion addressed to Judge J. Paul Oetken from Yuval Rubinstein dated November 21, 2018 re: 33 LETTER MOTION for Leave to File Amended Complaint addressed to Judge J. Paul Oetken from Michael Lieder dated November 13, 2018. . Document filed by City of New York. (Rubinstein, Yuval) (Entered: 11/21/2018)

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37 CIVIL CASE MANAGEMENT PLAN: All parties do not consent to conducting all further proceedings before a United States Magistrate Judge, including motions and trial. 28 U.S.C. § 636(c). Fact Discovery due by 7/15/2019. Plaintiffs' reply will be filed no later than 15 days after the filing of defendant's opposition. Case Management Conference set for 1/10/2019 at 03:00 PM before Judge J. Paul Oetken, and as further set forth in this Civil Case Management Plan. So ordered. (Signed by Judge J. Paul Oetken on 11/15/2018) (rjm) (Entered: 11/27/2018)
38 LETTER REPLY to Response to Motion addressed to Judge J. Paul Oetken from Michael Lieder dated November 27, 2018 re: 33 LETTER MOTION for Leave to File Amended Complaint addressed to Judge J. Paul Oetken from Michael Lieder dated November 13, 2018. . Document filed by Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas. (Lieder, Michael) (Entered: 11/28/2018)
NOTICE OF MEDIATOR ASSIGNMENT - Notice of assignment of mediator. Mediator Schedule due by 1/2/2019.(mf) (Entered: 12/03/2018)
39 JOINT LETTER MOTION to Adjourn Conference Scheduled For January 10, 2019 addressed to Judge J. Paul Oetken from Yuval Rubinstein dated January 2, 2019. Document filed by City of New York.(Rubinstein, Yuval) (Entered: 01/02/2019)
40 ORDER granting 39 Letter Motion to Adjourn Conference. GRANTED. THE CONFERENCE CURRENTLY SCHEDULED FOR JANUARY 10, 2019, IS ADJOURNED TO MARCH 11, 2019, AT 3:00 PM. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (bh) (Entered: 01/02/2019)
41 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - LETTER MOTION for Conference addressed to Judge J. Paul Oetken from Michael Lieder dated January 23, 2019. Document filed by Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas.(Lieder, Michael) Modified on 2/7/2019 (db). (Entered: 01/23/2019)
42 ORDER granting 41 Letter Motion for Conference. GRANTED. THE DOCKET SHALL REFLECT THE PARTIES' AGREEMENT TO MAKE USE OF THIS COURT'S MEDIATION PROGRAM. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (bh) (Entered: 01/24/2019)

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43 PROPOSED CASE MANAGEMENT PLAN. Document filed by City of New York. (Rubinstein, Yuval) (Entered: 01/24/2019)
MEDIATOR SESSION SCHEDULED First Mediation Session scheduled for 4/16/19, 9:30 A.M. at 40 Foley Square.(ah) (Entered: 02/14/2019)
44 LETTER MOTION for Discovery Disputes addressed to Judge J. Paul Oetken from Michael D. Lieder dated March 1, 2019. Document filed by Deborah Bowman, Liza Horsley, Debra Poe, Annette Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Lieder, Michael) (Entered: 03/01/2019)
45 CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 44 LETTER MOTION for Discovery Disputes addressed to Judge J. Paul Oetken from Michael D. Lieder dated March 1, 2019. From March 5, 2019 to March 7, 2019 addressed to Judge J. Paul Oetken from Yuval Rubinstein dated March 4, 2019. Document filed by City of New York.(Rubinstein, Yuval) (Entered: 03/04/2019)
46 ORDER granting 45 Letter Motion for Extension of Time to File Response/Reply. GRANTED. DEFENDANT'S RESPONSE TO PLAINTIFFS' LETTER OF MARCH 1, 2019, SHALL BE DUE ON OR BEFORE MARCH 7, 2019. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (bh) (Entered: 03/05/2019)
47 LETTER RESPONSE to Motion addressed to Judge J. Paul Oetken from Yuval Rubinstein dated March 6, 2019 re: 44 LETTER MOTION for Discovery Disputes addressed to Judge J. Paul Oetken from Michael D. Lieder dated March 1, 2019. . Document filed by City of New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Rubinstein, Yuval) (Entered: 03/06/2019)
Minute Entry for proceedings held before Judge J. Paul Oetken: Pretrial Conference held on 3/11/2019. (bh) (Entered: 03/13/2019)
48 ORDER granting in part and denying in part 44 Letter Motion for Discovery. As stated on the record during the March 11, 2019 status conference, Plaintiffs' request that the Court order Defendant to produce certain demographic information in connection with Plaintiffs' Document Production Request No. 3 is GRANTED IN PART and DENIED IN PART and Plaintiffs' request that the Court order Defendant to respond to specified Requests for Admission is DENIED. The Clerk is directed to close the motion at Docket Number 44. SO

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ORDERED. (Signed by Judge J. Paul Oetken on 3/11/2019) (ne) (Entered: 03/12/2019)
49 OPINION AND ORDER: re: 33 LETTER MOTION for Leave to File Amended Complaint addressed to Judge J. Paul Oetken from Michael Lieder dated November 13, 2018. filed by Debra Poe, Arlene Simmons, Dino Riojas, Deborah Bowman, Liza Horsley, Stephanie Thomas, Annette Richardson. For the foregoing reasons, Plaintiffs' motion for leave to amend is GRANTED. Plaintiffs shall file their amended complaint on or before April 22, 2019. The City is directed to answer or otherwise respond to the amended complaint within three weeks after it is filed. The Clerk of Court is directed to close the motion at Docket Number 33. SO ORDERED. (Signed by Judge J. Paul Oetken on 4/8/2019) (js) (Entered: 04/08/2019)
Set/Reset Deadlines: Amended Pleadings due by 4/22/2019. (js) (Entered: 04/08/2019)
50 TRANSCRIPT of Proceedings re: conference held on 3/11/2019 before Judge J. Paul Oetken. Court Reporter/Transcriber: Vincent Bologna, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/30/2019. Redacted Transcript Deadline set for 5/10/2019. Release of Transcript Restriction set for 7/8/2019.(McGuirk, Kelly) (Entered: 04/09/2019)
51 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 3/11/19 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 04/09/2019)
MEDIATOR SESSION NOT HELD Mediator Session scheduled for 4/16/2019 at 40 Foley Square was NOT held.(mf) (Entered: 04/18/2019)
MEDIATOR SESSION SCHEDULED First Mediation Session scheduled for 5/21/2019 at 10:00AM at the 40 Foley Square Courthouse (40 Centre Street).(mf) (Entered: 04/18/2019)
MEDIATOR SESSION SCHEDULED First Mediation Session scheduled for 5/22/2019 at 10:00AM at the 40 Foley Square

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Courthouse (40 Centre Street).(mf) Modified on 4/24/2019 (mf). (Entered: 04/18/2019)
52 FILING ERROR - DEFICIENT PLEADING - FILED AGAINST PARTY ERROR -FIRST AMENDED COMPLAINT amending 4 Complaint against City of New York.Document filed by Arlene Simmons, Annette Richardson, Debra Poe, Liza Horsley, Stephanie Thomas, Deborah Bowman, Dino Riojas. Related document: 4 Complaint.(Lieder, Michael) Modified on 4/23/2019 (pne). (Entered: 04/22/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Michael Lieder to RE-FILE re: Document No. 52 Amended Complaint,. The filing is deficient for the following reason(s): all of the parties listed on the pleading were not entered on CM ECF; the wrong party/parties whom the pleading is against were selected; Jon Watson, Brenda McKiver, and Erica Richardson must be added to the case; the Amended Complaint was filed incorrectly on the due date, therefore Court's leave will be required to re-file the pleading. Docket the event type Add Party to Pleading found under the event list Complaints and Other Initiating Documents.. Re-file the pleading using the event type Amended Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF select the individually named filer/filers - select the individually named party/parties the pleading is against. File the Exhibit to Pleading event found under the event list Other Documents and attach either opposing party's written consent or Court's leave. (pne) (Entered: 04/23/2019)
MEDIATOR SESSION NOT HELD Mediator Session scheduled for 5/21/2019 at 40 Foley Square will NOT be held.(mf) (Entered: 04/24/2019)
53 LETTER MOTION for Leave to File Amended Complaint addressed to Judge J. Paul Oetken from Michael Lieder dated 04-24-2019. Document filed by Deborah Bowman, Debra Poe, Annette Richardson, Dino Riojas, Stephanie Thomas.(Lieder, Michael) (Entered: 04/24/2019)
54 ORDER granting 53 Letter Motion for Leave to File DocumentGRANTED. PLAINTIFFS HAVE THE COURT'S LEAVE TO RE-FILE THEIR AMENDED COMPLAINT ON OR BEFORE MAY 1, 2019. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Sansone, Nicolas) (Entered: 04/24/2019)

04/25/2019
05/13/2019 05/13/2019
05/23/2019 05/23/2019 05/24/2019 06/13/2019 06/13/2019 06/25/2019
06/26/2019

55 FIRST AMENDED COMPLAINT amending 52 Amended Complaint, 4 Complaint against City of New York.Document filed by Stephanie Thomas, Deborah Bowman, Debra Poe, Annette Richardson, Dino Riojas, Jon Watson, Brenda McKiver, Erica Richardson. Related document: 52 Amended Complaint, 4 Complaint. (Attachments: # 1 Supplement Order Granting Leave)(Lieder, Michael) (Entered: 04/25/2019)
56 CONSENT LETTER MOTION for Extension of Time to File Answer re: 55 Amended Complaint, addressed to Judge J. Paul Oetken from Yuval Rubinstein dated May 13, 2019. Document filed by City of New York.(Rubinstein, Yuval) (Entered: 05/13/2019)
57 ORDER granting 56 Letter Motion for Extension of Time to Answer City of New York answer due 5/24/2019. GRANTED. DEFENDANT SHALL FILE ITS AMENDED ANSWER ON OR BEFORE MAY 24, 2019. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (bh) (Entered: 05/13/2019)
Mediator Session Held on 5/22/19 at 40 Foley Square.(ah) (Entered: 05/23/2019)
MEDIATOR SESSION SCHEDULED Mediation Session scheduled for 6/17/19, 9:30 AM at 40 Foley Square.(ah) (Entered: 05/23/2019)
58 ANSWER to 55 Amended Complaint, with JURY DEMAND. Document filed by City of New York.(Rubinstein, Yuval) (Entered: 05/24/2019)
MEDIATOR SESSION NOT HELD Mediator Session scheduled for 6/17/19 at 40 Foley Square will NOT be held.(ah) (Entered: 06/13/2019)
MEDIATOR SESSION SCHEDULED Mediation Session re-scheduled for 10/28/19, 10 AM at 40 Foley Square.(ah) (Entered: 06/13/2019)
59 LETTER MOTION for Extension of Time addressed to Judge J. Paul Oetken from Michael D. Lieder dated June 25, 2019. Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas, Jon Watson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lieder, Michael) (Entered: 06/25/2019)
60 AMENDED CASE MANAGEMENT PLAN; granting 59 Letter Motion for Extension of Time. All parties do not consent to conducting all further proceedings before a United States Magistrate Judge, including motions and trial. 28 U.S.C. § 636(c). The parties are free to

06/26/2019 07/17/2019
07/17/2019 07/23/2019 09/18/2019

withhold consent without adverse substantive consequences.The parties have conferred pursuant to Fed. R. Civ. P. 26(f). Amended pleadings may not be filed and additional parties may not be joined except with leave of the Court. Any motion to amend or to join additional parties shall be filed within 60 days from the date of this Order. Depositions shall be completed by November 15, 2019. All counsel must meet in person to resume their settlement discussions no later than November 27, 2019. The proposed amended case management plan is approved. Counsel for the parties shall appear for a pretrial conference in Courtroom 706 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, NY 10007, on November 25, 2019, at 11:00 AM. So Ordered. (Signed by Judge J. Paul Oetken on 6/26/2019) (js) Modified on 6/26/2019 (js). (Entered: 06/26/2019)
Set/Reset Deadlines: (Deposition due by 3/13/2020. Fact Discovery due by 11/15/2019. Motions due by 4/13/2020.), Set/Reset Hearings:(Pretrial Conference set for 11/25/2019 at 11:00 AM in Courtroom 706, 40 Centre Street, New York, NY 10007 before Judge J. Paul Oetken.) (js) (Entered: 06/26/2019)
61 MOTION for Lauren Michelle Nussbaum to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17261426. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Deborah Bowman, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Stephanie Thomas, Jon Watson. (Attachments: # 1 Affidavit, # 2 Exhibit Certificate of Good Standing DC, # 3 Exhibit Certificate of Good Standing MD, # 4 Exhibit Proposed Order)(Nussbaum, Lauren) (Entered: 07/17/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 61 MOTION for Lauren Michelle Nussbaum to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17261426. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 07/17/2019)
62 ORDER granting 61 Motion to Appear Pro Hac Vice. GRANTED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (bh) (Entered: 07/23/2019)
63 FIRST MOTION for Chaim Ezra Bronstein to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17620749. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas, Jon Watson. (Attachments: # 1 Affidavit, # 2 Text

09/18/2019 09/25/2019 10/31/2019 11/13/2019
11/14/2019

of Proposed Order, # 3 Exhibit, # 4 Exhibit)(Bronstein, Ezra) (Entered: 09/18/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 63 FIRST MOTION for Chaim Ezra Bronstein to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17620749. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 09/18/2019)
64 ORDER granting 63 Motion to Appear Pro Hac Vice. GRANTED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (bh) (Entered: 09/25/2019)
MEDIATION CONFERENCE NOT HELD Mediation Conference scheduled for 10/28/19 at Thurgood Marshall U.S. Courthouse 40 Foley Square New York NY 10007 was not held. Mediation Status due by 11/12/2019.(smc) (Entered: 10/31/2019)
65 SECOND LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge J. Paul Oetken from Michael D. Lieder dated November 13, 2019. Document filed by Deborah Bowman, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Stephanie Thomas, Jon Watson. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Lieder, Michael) (Entered: 11/13/2019)
66 SECOND AMENDED CIVIL CASE MANAGEMENT PLAN. All parties do not consent to conducting all further proceedings before a United States Magistrate Judge, including motions and trial. 28 U.S.C. § 636(c). All fact discovery shall be completed no later than December 20, 2019. Depositions shall be completed by December 20, 2019. All expert depositions shall be completed by April 24, 2020. Motion for class certification will be filed no later than May 26, 2020; defendant's opposition will be filed no later than 30 days after the filing of plaintiffs' motion; and plaintiffs' reply will be filed no later than 15 days after the filing of defendant's opposition. The conference previously scheduled for November 25, 2019, is hereby adjourned to January 17, 2020, at 12:00 pm., and as further specified and set forth in this Second Amended Civil Case Management Plan. So ordered. Granting 65 SECOND LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge J. Paul Oetken from Michael D. Lieder dated November 13, 2019. Document filed by Deborah Bowman, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Stephanie Thomas, Jon Watson. (Deposition due by

11/14/2019 01/07/2020 01/08/2020
01/23/2020 01/29/2020 01/30/2020
02/04/2020
02/05/2020

4/24/2020. Motions due by 5/26/2020). (Signed by Judge J. Paul Oetken on 11/14/2019) (rjm) (Entered: 11/14/2019)
Set/Reset Deadlines: (Fact Discovery due by 12/20/2019.) Set/Reset Hearings: (Pretrial Conference set for 1/17/2020 at 12:00 PM before Judge J. Paul Oetken.) (rjm) (Entered: 11/14/2019)
67 CONSENT LETTER MOTION to Adjourn Conference Scheduled For January 17, 2020 addressed to Judge J. Paul Oetken from Yuval Rubinstein dated January 7, 2020. Document filed by City of New York.(Rubinstein, Yuval) (Entered: 01/07/2020)
68 ORDER granting 67 Letter Motion to Adjourn Conference. GRANTED. THE PRETRIAL CONFERENCE CURRENTLY SCHEDULED FOR JANUARY 17, 2020, IS HEREBY ADJOURNED TO JANUARY 23, 2020, AT 10:45 A.M. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Park, Isaac) (Entered: 01/08/2020)
Minute Entry for proceedings held before Judge J. Paul Oetken: Pretrial Conference held on 1/23/2020. (bh) (Entered: 01/23/2020)
MEDIATION CONFERENCE Mediation Conference scheduled for 4/7/2020 at 10:00 AM in Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York, NY 10007.(ah) (Entered: 01/29/2020)
69 LETTER MOTION for Extension of Time addressed to Judge J. Paul Oetken from Michael D. Lieder dated January 30, 2020. Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas, Jon Watson.(Lieder, Michael) (Entered: 01/30/2020)
70 ORDER granting 69 LETTER MOTION for Extension of Time addressed to Judge J. Paul Oetken from Michael D. Lieder dated January 30, 2020. Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas, Jon Watson. Granted. The extensions are so ordered, with the exception of the erroneous expert deposition deadline, which is instead extended to May 1, 2020. (Deposition due by 5/1/2020). (Signed by Judge J. Paul Oetken on 2/4/2020) (rjm) (Entered: 02/04/2020)
MEDIATION CONFERENCE NOT HELD Mediation Conference scheduled for 4/7/2020 at Thurgood Marshall U.S. Courthouse 40 Foley Square New York NY 10007 was not held.(ah) (Entered: 02/05/2020)

02/05/2020 04/07/2020 04/08/2020
05/14/2020 05/20/2020 05/21/2020 05/21/2020

MEDIATION CONFERENCE Mediation Conference scheduled for 4/28/2020 at 10:00 AM in Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York, NY 10007.(ah) (Entered: 02/05/2020)
71 LETTER MOTION for Extension of Time addressed to Judge J. Paul Oetken from Michael D. Lieder dated April 7, 2020. Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas, Jon Watson..(Lieder, Michael) (Entered: 04/07/2020)
72 ORDER granting 71 Letter Motion for Extension of Time. GRANTED. AS RECOMMENDED BY COUNSEL, THE IN-PERSON MEDIATION PROCESS SHALL RESUME ON OR BEFORE JUNE 30, 2020. IF, HOWEVER, THE PARTIES CONCLUDE THAT THE CORONAVIRUS EMERGENCY MAKES THE RESUMPTION OF THE MEDIATION INFEASIBLE BY THAT DATE, THEY SHALL NOTIFY THE COURT NO LATER THAN JUNE 23, 2020, OF THE NEW DEADLINE FOR THE MEDIATION THAT THEY RECOMMEND. THEY ALSO WILL REPORT TO THE COURT EVERY THIRTY DAYS OF THEIR PROGRESS ON MEDIATION UNTIL ANOTHER MEDIATION SESSION HAS OCCURRED. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Park, Isaac) (Entered: 04/08/2020)
MEDIATION CONFERENCE NOT HELD Mediation Conference scheduled for 04/28/2020 at Thurgood Marshall U.S. Courthouse 40 Foley Square New York NY 10007 was not held. Mediation Status due by 6/15/2020..(rpr) (Entered: 05/14/2020)
73 LETTER MOTION for Leave to File Excess Pages addressed to Judge J. Paul Oetken from Michael D. Lieder dated 05/20/2020. Document filed by Dino Riojas. Return Date set for 5/22/2020 at 08:00 AM..(Lieder, Michael) (Entered: 05/20/2020)
MEDIATION CONFERENCE RE-SCHEDULED Re-scheduled Mediation Conference scheduled for 6/30/2020 at 10:00 AM format/location pending..(rpr) (Entered: 05/21/2020)
74 ORDER granting 73 Letter Motion for Leave to File Excess Pages. GRANTED. THE PARTIES SHALL FILE OPENING BRIEFS OF NO LONGER THAN FORTY PAGES. PLAINTIFF SHALL FILE A REPLY BRIEF OF NO LONGER THAN FIFTEEN PAGES. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Park, Isaac) (Entered: 05/21/2020)

05/26/2020 05/26/2020 05/26/2020 05/26/2020
05/26/2020 05/26/2020

75 MOTION for Summary Judgment Partially as to Plaintiffs Annette Richardson, Erica Richardson, Debra Poe, Dino Riojas, and Stephanie Thomas., MOTION to Strike Document No. 55 Amended Complaint's Disparate Impact Class Allegations. Document filed by City of New York..(Rubinstein, Yuval) (Entered: 05/26/2020)
76 MEMORANDUM OF LAW in Support re: 75 MOTION for Summary Judgment Partially as to Plaintiffs Annette Richardson, Erica Richardson, Debra Poe, Dino Riojas, and Stephanie Thomas. MOTION to Strike Document No. 55 Amended Complaint's Disparate Impact Class Allegations. . Document filed by City of New York..(Rubinstein, Yuval) (Entered: 05/26/2020)
77 RULE 56.1 STATEMENT. Document filed by City of New York..(Rubinstein, Yuval) (Entered: 05/26/2020)
78 DECLARATION of Yuval Rubinstein in Support re: 75 MOTION for Summary Judgment Partially as to Plaintiffs Annette Richardson, Erica Richardson, Debra Poe, Dino Riojas, and Stephanie Thomas. MOTION to Strike Document No. 55 Amended Complaint's Disparate Impact Class Allegations.. Document filed by City of New York. (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).(Rubinstein, Yuval) (Entered: 05/26/2020)
79 MOTION to Certify Class . Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas..(Lieder, Michael) (Entered: 05/26/2020)
80 MEMORANDUM OF LAW in Support re: 79 MOTION to Certify Class . . Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit, # 37 Exhibit, # 38 Exhibit, # 39 Exhibit, # 40 Exhibit, # 41 Exhibit, # 42 Exhibit, # 43 Exhibit, # 44 Exhibit, # 45 Exhibit, # 46 Exhibit, # 47 Exhibit, # 48 Exhibit, # 49 Exhibit, # 50 Exhibit, # 51 Exhibit, # 52 Exhibit, # 53 Exhibit, # 54 Exhibit, # 55 Exhibit, # 56 Exhibit, # 57 Exhibit, # 58 Exhibit, # 59 Exhibit, # 60 Exhibit, # 61 Exhibit, # 62 Exhibit).(Lieder, Michael) (Entered: 05/26/2020)

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81 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge J. Paul Oetken from Michael D. Lieder dated 06/01/2020. Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas..(Lieder, Michael) (Entered: 06/01/2020)
82 ORDER granting 81 Letter Motion for Extension of Time to File Response/Reply re 75 MOTION for Summary Judgment Partially as to Plaintiffs Annette Richardson, Erica Richardson, Debra Poe, Dino Riojas, and Stephanie Thomas. MOTION to Strike Document No. 55 Amended Complaint's Disparate Impact Class Allegations. GRANTED. PLAINTIFFS' OPPOSITION TO ANY MOTION FOR SUMMARY JUDGMENT SHALL BE FILED NO LATER THAN THIRTY DAYS AFTER THE FILING OF THAT MOTION. DEFENDANT'S REPLY SHALL BE FILED NO LATER THAN FIFTEEN DAYS AFTER THE FILING OF PLAINTIFFS' OPPOSITION. SO ORDERED. Responses due by 6/25/2020 (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Park, Isaac) (Entered: 06/03/2020)
83 LETTER MOTION for Extension of Time To Postpone Mediation addressed to Judge J. Paul Oetken from Michael D. Lieder dated 06/15/2020. Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas, Jon Watson..(Lieder, Michael) (Entered: 06/15/2020)
84 ORDER granting 83 Letter Motion for Extension of Time. GRANTED. THE IN-PERSON MEDIATION PROCESS SHALL RESUME NO LATER THAN FORTY-FIVE DAYS AFTER THE DISPOSITION OF THE PENDING MOTION FOR CLASS CERTIFICATION. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Park, Isaac) (Entered: 06/22/2020)
85 MEMORANDUM OF LAW in Opposition re: 79 MOTION to Certify Class . . Document filed by City of New York..(Rubinstein, Yuval) (Entered: 06/25/2020)
86 DECLARATION of Yuval Rubinstein in Opposition re: 79 MOTION to Certify Class .. Document filed by City of New York. (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, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit AB, # 29 Exhibit AC, # 30 Exhibit AD, # 31 Exhibit AE, #

06/25/2020 06/25/2020 06/25/2020 06/25/2020 06/25/2020

32 Exhibit AF, # 33 Exhibit AG, # 34 Exhibit AH, # 35 Exhibit AI, # 36 Exhibit AJ).(Rubinstein, Yuval) (Entered: 06/25/2020)
87 ***SELECTED PARTIES*** BRIEF re: 86 Declaration in Opposition to Motion,,, Exhibit U. Document filed by City of New York, Deborah Bowman, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Stephanie Thomas, Jon Watson.Motion or Order to File Under Seal: 35 .(Rubinstein, Yuval) (Entered: 06/25/2020)
88 REPLY MEMORANDUM OF LAW in Opposition re: 75 MOTION for Summary Judgment Partially as to Plaintiffs Annette Richardson, Erica Richardson, Debra Poe, Dino Riojas, and Stephanie Thomas. MOTION to Strike Document No. 55 Amended Complaint's Disparate Impact Class Allegations. . Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas. (Attachments: # 1 Index, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit).(Lieder, Michael) (Entered: 06/25/2020)
89 MEMORANDUM OF LAW in Opposition re: 75 MOTION for Summary Judgment Partially as to Plaintiffs Annette Richardson, Erica Richardson, Debra Poe, Dino Riojas, and Stephanie Thomas. MOTION to Strike Document No. 55 Amended Complaint's Disparate Impact Class Allegations. . Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Errata, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit).(Lieder, Michael) (Entered: 06/25/2020)
90 MEMORANDUM OF LAW in Opposition re: 75 MOTION for Summary Judgment Partially as to Plaintiffs Annette Richardson, Erica Richardson, Debra Poe, Dino Riojas, and Stephanie Thomas. MOTION to Strike Document No. 55 Amended Complaint's Disparate Impact Class Allegations. . Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Arlene Simmons..(Lieder, Michael) (Entered: 06/25/2020)
91 RESPONSE in Opposition to Motion re: 75 MOTION for Summary Judgment Partially as to Plaintiffs Annette Richardson, Erica Richardson, Debra Poe, Dino Riojas, and Stephanie Thomas.

07/01/2020 07/10/2020
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MOTION to Strike Document No. 55 Amended Complaint's Disparate Impact Class Allegations. . Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas..(Lieder, Michael) (Entered: 06/25/2020)
92 LETTER addressed to Judge J. Paul Oetken from Yuval Rubinstein dated July 1, 2020 re: Number of Job Titles in Putative Class. Document filed by City of New York..(Rubinstein, Yuval) (Entered: 07/01/2020)
93 REPLY MEMORANDUM OF LAW in Support re: 79 MOTION to Certify Class . . Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas. (Attachments: # 1 Exhibit Index, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit).(Lieder, Michael) (Entered: 07/10/2020)
94 REPLY MEMORANDUM OF LAW in Support re: 75 MOTION for Summary Judgment Partially as to Plaintiffs Annette Richardson, Erica Richardson, Debra Poe, Dino Riojas, and Stephanie Thomas. MOTION to Strike Document No. 55 Amended Complaint's Disparate Impact Class Allegations. . Document filed by City of New York..(Rubinstein, Yuval) (Entered: 07/10/2020)
95 RULE 56.1 STATEMENT. Document filed by City of New York..(Rubinstein, Yuval) (Entered: 07/10/2020)
96 MOTION for Aisha Rich to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20966388. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas, Jon Watson..(Rich, Aisha) (Entered: 08/03/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 96 MOTION for Aisha Rich to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC20966388. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/03/2020)
97 ORDER granting 96 Motion to Appear Pro Hac Vice. GRANTD. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (bh) (Entered: 08/04/2020)

08/04/2020

MEDIATION CONFERENCE NOT HELD Mediation Conference scheduled for 06/30/2020 at Counsel's Office was not held. Mediation Status due by 10/1/2020..(rpr) (Entered: 08/04/2020)

09/01/2020

98 LETTER addressed to Judge J. Paul Oetken from Michael Lieder dated 09/01/2020 re: Debra Poe Retirement. Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas, Jon Watson..(Lieder, Michael) (Entered: 09/01/2020)

09/09/2020

99 MOTION to Withdraw Appearance of Lauren Nussbaum. Document filed by Deborah Bowman, Liza Horsley, Brenda McKiver, Debra Poe, Annette Richardson, Erica Richardson, Dino Riojas, Arlene Simmons, Stephanie Thomas, Jon Watson..(Lieder, Michael) (Entered: 09/09/2020)

09/10/2020

100 MEMO ENDORSEMENT granting 99 Motion to Withdraw Appearance. ENDORSEMENT: So Ordered.*** Attorney Lauren Nussbaum terminated. (Signed by Judge J. Paul Oetken on 9/10/2020) (js) Modified on 9/10/2020 (js). (Entered: 09/10/2020)

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 Case 1:17-cv-09447-JPO Document 4 Filed 12/04/17 Page 1 of 59

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

ANNETTE RICHARDSON,

)

DEBORAH BOWMAN,

)

LIZA HORSLEY,

)

DEBRA POE

)

DINO RIOJAS,

)

ARLENE SIMMONS, and

)

STEPHANIE THOMAS

)

)

On behalf of themselves and all others

)

similarly situated,

)

Civil No. _1_:_1_7_-c_v_-_0_9_4_4_7_

)

Plaintiffs,

)

)

v.

)

CLASS ACTION

)

CITY OF NEW YORK,

)

)

Defendant.

)

)

I. INTRODUCTION 1. For well over a century, the Fire Department of New York (the “FDNY”) has engaged in a pattern or practice of systemic, continuous, and intentional discrimination against African American emergency medical services (“EMS”) and non-uniformed (“Civilian”) employees and job applicants in hiring, placement, advancement, and compensation decisions. For about 100 years after the Civil War, white men, primarily of Irish and Italian descent, controlled the FDNY at all levels, from upper management to staff. Token integration began during the civil rights movement of the 1960s, but African Americans remained severely underrepresented at all levels of the agency and in all types of jobs. 2. As a result of the broad pattern of racial discrimination, the percentage of African American employees in FDNY as a whole is far less than in other agencies of the New York City government, the percentage of African American employees in higher paying EMS and Civilian

Case 1:17-cv-09447-JPO Document 4 Filed 12/04/17 Page 2 of 59
jobs in FDNY is far less than in lower compensated jobs, and African American Civilian employees are paid lower salaries or wages than white employees in the same job positions.
3. The interaction of four factors produces these racial disparities in job selections and compensation. First, despite knowing of the statistical racial disparities, FDNY leadership has failed to adopt or implement systematically widely accepted human resources practices that reduce the opportunity for discrimination, including policies and practices in connection with performance appraisals, posting of vacant positions, and monitoring of decisions for patterns of racially skewed outcomes. Second, a culture of in-group favoritism under which white decisionmakers favor people with similar backgrounds to themselves has infected the FDNY for generations. Third, a very small group of decision-makers, most notably the Assistant Commissioner for Human Resources and the Assistant Commissioner for Budget & Finance, have contributed to the racial disparities through their decisions to approve or disapprove most proposed job selection and compensation decisions for EMS and Civilian FDNY employees. Finally, the Mayor’s office and other City offices and agencies have failed to exercise control over FDNY’s human resources and diversity practices despite myriad lawsuits, unfavorable reports, and other beacons shining light on the racial discrimination at FDNY. These factors reflect intentional racial discrimination against African American employees, and FDNY’s practices have had a disparate impact on the hiring, advancement, and compensation of African American employees.
4. Plaintiffs bring this action on behalf of themselves and three classes of African Americans defined more precisely in paragraph 136 below – the “Job Selection Class”, the “Compensation Class,” and the “EMS Lieutenant Class.” They claim that the FDNY’s racial
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discrimination violates 42 U.S.C. § 1983 and the New York City Human Rights Law (“NYHRL”), N.Y.C. Admin. Code § 8-101 et seq.
II. JURISDICTION AND VENUE. 5. The jurisdiction of this Court over the claims under 42 U.S.C. § 1983 is invoked pursuant to 28 U.S.C. § 1343(a)(4), which confers original jurisdiction upon this Court in a civil action to recover damages or to secure equitable relief or other relief under any Act of Congress providing for protection of civil rights; pursuant to 28 U.S.C. § 1331, which confers original jurisdiction upon this Court in a civil action arising under the Constitution or laws of the United States; and pursuant to 28 U.S.C. § 1337, which confers original jurisdiction upon this court in a civil action arising under any Act of Congress regulating commerce. 6. The jurisdiction of this Court over the claims under the NYHRL is invoked pursuant to 28 U.S.C. § 1367(a), which confers supplemental jurisdiction upon this Court over claims “that are so related to claims in the action within [its] original jurisdiction that they for part of the same case or controversy . . . .” 7. Venue is proper in this Court under 28 U.S.C. § 1391 because Defendant resides in this judicial district and because a substantial part of the events or omissions giving rise to the claim occurred in this judicial district.
III. PARTIES 8. Plaintiff Annette Richardson is African American and has worked for the FDNY from 2006 until the present. She is currently employed as an Associate Staff Analyst and is a representative of the Job Selection Class and the Compensation Class. 9. Plaintiff Deborah Bowman is African American and has worked for the FDNY from 1987 until the present. She is currently employed as an Administrative Manager. While
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her position includes the word “Manager,” she is classified as non-managerial. She is a representative of the Job Selection Class and the Compensation Class.
10. Plaintiff Liza Horsley is African American and has worked for the FDNY from 1998 until the present. She is currently employed as a Clerical Associate and is a representative of the Job Selection Class and the Compensation Class.
11. Plaintiff Debra Poe is African American and has worked for the FDNY from 2006 until the present. She is currently employed as an Administrative Manager. While her position includes the word “Manager,” she is classified as non-managerial. She is a representative of the Job Selection Class and the Compensation Class.
12. Plaintiff Dino Riojas is African American and has worked for the FDNY from 1982 until the present. He is currently employed as a Computer Specialist. He is a representative of the Job Selection Class and the Compensation Class.
13. Plaintiff Arlene Simmons is African American and has worked for the FDNY from 1993 until the present. She is currently employed as an EMS Lieutenant and is a representative of the EMS Lieutenant Class.
14. Plaintiff Stephanie Thomas is African American and has worked for the FDNY from 1988 until the present. She is currently employed as a Computer Specialist and Project Manager and is a representative of the Job Selection Class and the Compensation Class.
15. The law of the State in which the district court is located determines a party’s amenability to suit. Under the New York City Charter, “all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law.” The FDNY is an agency of the City Government of New York. Because the FDNY is an agency of the City, the
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City is the named Defendant, but the Complaint focuses on the racial discrimination committed by the FDNY.
16. The FDNY is the agency charged with protecting the lives and property of the people of New York City through prevention, education, fire suppression, medical services and other related emergency and non-emergency activities. The Fire Commissioner, who heads the agency, is appointed by and reports directly to the Mayor of the City of New York.
IV. FDNY’S WORKFORCE 17. According to the Workforce Profile Report for FY 2015 prepared by the Department of Citywide Administrative Services for the City of New York (“2015 Workforce Report”), the FDNY had about 16,300 full time and about 100 part time employees at the end of Fiscal Year 2015. 18. The 2015 Workforce Report reflects that FDNY had over 8,400 firefighters and over 2,600 firefighter supervisors at that time. Together, these two groups comprised about 2/3 of the FDNY workforce in 2015. 19. Racial discrimination was especially blatant against African Americans aspiring to become firefighters. In 2015, only about 8% of firefighters and about 2% of firefighter supervisors were African-American, and those pitifully small percentages would have been even lower but for the litigation, United States v. City of New York in the Eastern District of New York, discussed in subsection V.E below. Because of the continuing jurisdiction of the Eastern District over the injunctive relief contained in the settlement that resolved that lawsuit, AfricanAmerican firefighter employees and job applicants are not part of any of the proposed Classes. 20. The 2015 Workforce Report also shows that that over 3,800 employees worked in the EMS section of FDNY, about 22% of all FDNY employees. The EMS employees primarily
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consisted of over 2,400 EMTs, about 900 paramedics, and over 500 EMT supervisors (collectively, the “EMS Positions”).
21. Over 50% of the EMS employees were minorities in 2015, and about 23% (over 850 employees) were African Americans. Indeed, the City merged EMS into the FDNY in the 1990s to give the appearance of racial (and gender) diversity in the FDNY, rather than actually attempting to diversify the almost exclusively white firefighter workforce. But even though African Americans are employed in EMS in higher percentages than as firefighters, they still experience discrimination in hiring, as discussed below.
22. The EMS employees also were paid far less than firefighters in 2015 (and all other years). On average their salaries averaged only about 63% of firefighters’ average salaries.
23. The percentage of African Americans among the remaining 1,600 employees, who are characterized as Civilian employees in this Complaint, has risen slowly since the 1960s, but not evenly. The positions occupied by Civilian employees (the “Civilian Positions”) are divisible into seven subgroups. According to the 2015 Workforce Report, four subgroups had over 50% white employment in 2015 and under 25% African-American employment. The other three subgroups had well under 50% white employment and 33% or more African-American employment. Not surprisingly, the four subgroups with greater white and smaller AfricanAmerican employment had much higher average salaries or wages (not including overtime) ($85,223) in 2015 than the other three subgroups ($52,709). The average salaries or wages in the primarily minority jobs were only 62% of the average salaries or wages in the primarily white jobs:
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Primarily White Civilian Jobs Receive Much Higher Compensation at FDNY Than Do Primarily Minority Jobs (2015)

Position
Administrators/Managers Professionals (Science, Health, Lawyers) Craft/Operators Management Specialists Subtotals for White Jobs
Para Professionals Clericals/Clerical Supervisors Other (primarily Laborers and Transportation) Subtotals for Minority Jobs Total

Percent Percent Percent Number White Black Other

Primarily White Jobs

148

63%

18% 19%

183

53%

14% 33%

Average Salary/Wages
$117,831 $ 92,877

342

72%

12% 16%

263

56%

21% 23%

936

62%

16% 22%

Primarily Minority Jobs

50

33%

35% 32%

437

42%

33% 25%

62

41%

34% 25%

$ 79,870 $ 68,508 $ 85,223
$ 54,858 $ 52,515 $ 52,345

549 1,485

41%

33% 26%

54%

22% 24%

$ 52,709 $ 73,203

24. Overall, about 330 Civilian Employees in 2015 were African American, about 22% of the total number of Civilian Employees.
V. FDNY’S JOB SELECTION DECISIONS A. FDNY Manipulates the City’s Standardized Processes for Filling Vacant Positions
Through Outside Hires or Promotions to Select Persons from Favored Groups 25. Most or all EMS Positions and Civilian Positions are civil service positions. Candidates for most but not all civil service positions must take and pass an exam before they can be hired. The positions for which tests are required are called the “competitive class.” Each civil service job title has a different exam. These exams, which are administered by NYC’s Department of Citywide Administrative Services (“DCAS”), are supposed to test individuals on the skills and abilities that they need to do the job.
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26. There are two different types of civil service exams: open competitive exams open to members of the public; and promotion exams open only to current City employees. Incumbent employees are not supposed to have any priority in receiving notice of or in filling positions subject to open competitive exams. However, certain positions above entry level are limited to incumbent FDNY employees and are not open to the public. For example, EMS positions above the entry-level EMT position are regarded as promotions, and are limited to EMS employees in lower positions.
27. After each exam, DCAS creates an “eligible to hire” list. This list has all candidates who passed the exam, ranked in score order. When a New York City agency has a hiring need, it is supposed to contact candidates for that civil service job title for interviews in order of their ranked scores.
28. While some civil service job titles in the New York City government are unique or virtually unique to FDNY, such as the EMS positions, most of the Civilian job titles are not. Thus, the “eligible to hire” lists provided to FDNY based on open competitive exams (as opposed to promotion only exams) should be identical to the “eligible to hire” lists provided to other government agencies seeking to fill positions with the same job titles.
29. The manager of an organizational unit seeking to fill a vacancy generally receives the “eligible to hire” list, directly or indirectly, from DCAS. Typically, FDNY, like other city agencies, conducts interviews of the candidates with the highest scores on the exams. This interview typically includes not only the unit head and/or the unit head’s representative, but also a representative of FDNY’s Human Resources unit. The HR representative generally is Donay Queenan, the head of the unit since 2004, or one of her direct reports to whom she delegates participation in the interview.
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30. Because DCAS refers the same pool of candidates to FDNY and to other agencies seeking to fill Civilian positions with the same civil service titles, the percentages of African American employees in the Civilian civil service positions at FDNY should be similar to the percentages of African American employees in the identical positions at other city agencies. But, as discussed in subsections V.B and C below, the percentages of African Americans in FDNY are far lower than in other agencies in the New York City government. The gaps between the percentages of African American employees in FDNY and in other New York City agencies are especially pronounced in higher paying jobs. Reasons for these disparities are set out in subsections V.E through V.G.
31. In addition, FDNY management can, and frequently does, circumvent these standardized process by creating a particularized business title for a position and posting qualifications for that position that are tailored to the person whom management has predetermined should fill the position. Often, the favored person is someone with the firefighter title who is unable to perform the functions of that position and is assigned to a different position on a “provisional” or “temporary” basis. After posted qualifications for the business title are tailored to the provisional employee, that “firefighter” typically is offered the position after going through the interview process.
32. Sometimes the skewing of the process through job qualifications is not individualized, as in the case of Fire Marshals. Fire Marshals are among the highest paid job titles in FDNY; with overtime, many Fire Marshals earn in excess of $200,000 per year.
33. In the 1970s, a requirement was added to the list of Fire Marshal qualifications that a candidate have previously served as a firefighter. This qualification was added at a time that the FDNY began to integrate, but when virtually every firefighter was white. Because of
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this requirement and the FDNY’s strong, decades-long resistance to black firefighters, Fire Marshal ranks remain virtually lily-white.
34. Most Fire Marshals conduct investigations, like police detectives, while others provide security to Fire Department Headquarters, facilities, Fire Chiefs and the Fire Commissioner. Firefighters do not receive training in these duties. Accordingly, new Fire Marshals are sent to an academy and are given extensive training before beginning to function as Fire Marshals.
35. If the goal were to limit Fire Marshals to job titles that provided exposure to the duties of Fire Marshals, then the approximately 150 lowly paid Fire Protection Inspectors, most of whom are African American, should be eligible. They have much more extensive exposure and training concerning causes of fires and fire prevention than does the average firefighter.
36. This arbitrary, exclusionary policy has the effect of keeping African Americans, whether in or outside the FDNY, from attaining this prestigious, high paying position.
37. Another means by which FDNY circumvents the City’s efforts to create a raceneutral hiring process is to hire heavily into civil service positions for which DCAS has not created a standardized test. For example, the City does not have a standardized test for Community Coordinators. Although many clerical employees possess the qualifications to serve as Community Coordinators, which are higher-paying paraprofessional jobs, FDNY promotes very few clerical employees into Community Coordinator positions. Instead, it fills most of the Community Coordinator positions with outside hires who have not had to pass a DCAS examination; these hires often are white. As described later in this Complaint, for example, FDNY has twice passed over Plaintiff Liza Horsley’s applications for promotion to Community
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Coordinator positions in favor of hires of outside white candidates, even though she has not only a Bachelor’s but also a Master’s degree.
38. In still another strategy, the Bureau of Technology and Development Systems within FDNY hired a group of “temporary,” primarily non-African American, computer consultants, but converted many of them to permanent positions in FDNY.
39. Although the strategies may vary somewhat, the purpose and effect is the same: to keep the FDNY the most racially discriminatory agency in the City. B. FDNY Employs Much Lower Percentages of African Americans Than Other
Agencies Throughout the New York City Government 40. Although the tests and job selection processes that FDNY are supposed to use to fill vacant positions are the same as those that the other agencies of the New York City government are supposed to use, the results are very different. The table below compares the numbers and percentages of white and African American employees in each of the seven types of Civilian jobs listed in paragraph 23 above in the City government as a whole and in the FDNY, according to the 2015 Workforce Report. The final column is calculated by dividing the percentage of African Americans in each of the seven job groups in FDNY, as well as overall, by the percentage of African Americans in the corresponding group for the City government as a whole, and thus reflects the shortfall in African Americans at FDNY (if any) as judged by this comparator group:
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Shortfalls in Employment of African Americans in Civilian Positions at FDNY in 2015

Job Category
Administrators/Managers Professionals (Science, Health, Lawyers) Craft/Operators Management Specialists Subtotals for White Jobs
Para Professionals Clericals/Clerical Supervisors Laborers and Transportation Subtotals for Minority Jobs Totals

Number
148 183

FDNY

White Black Number

%

%

Primarily White Jobs

63% 18% 23,526

53% 14% 26,026

NYC White
%
48% 34%

342 72% 12% 10,431 59%

263 56% 21% 13,003 33%

936 62% 16% 72,986 42%

Primarily Minority Jobs

50 33% 35% 41,388 25%

437 42% 33% 32,652 23%

62 41% 34%

2,179 42%

549 41% 33% 76,219 25%

1,485 54% 22% 149,205 33%

Black %
27% 28%
19% 37% 28%
33% 46% 33% 39% 33%

Shortage of Black Employees
-33% -50%
-37% -43% -43%
+6% -28%% +3%
-15% -33%

41. The City’s own numbers, set out in the 2015 Workforce Report, thus show that

overall the FDNY employed only 67% of the expected number of African Americans in 2015 in

Civilian jobs, using employment throughout the City government to determine the expected

numbers. Because there were 1,485 Civilian employees in 2015, this means that FDNY

employed approximately 160 fewer African Americans than expected in Civilian jobs.

42. The 2015 Workforce Report also reflects egregious underemployment by FDNY

of African Americans in EMS. As alleged above, the 2015 Workforce Report classifies EMS

employees as Technicians, and the numbers reflect that virtually all FDNY Technicians were

EMS employees. The table below compares the racial demographics of Technicians at FDNY to

the corresponding numbers for the remainder of the City Government. The second column

shows the number of Technicians and the percentages of white and black Technicians at FDNY.

The third column shows the corresponding numbers for the remainder of the City Government.

The final column reflects the ratio of the white percentage of the FDNY Technicians compared

to the white percentage of Technicians in the remainder of the City Government and then the

corresponding ratio for African American Technicians. 12

Case 1:17-cv-09447-JPO Document 4 Filed 12/04/17 Page 13 of 59

Shortfall in Employment of African Americans in EMS Positions at FDNY in 2015

Number African Americans

Technicians in FDNY 3,851 23%

Technicians in Rest of City Government
9,809 52%

Shortage of Black Employees
-56%

Thus, based on the numbers for the City Government (not including FDNY), FDNY employed

only about 44% of the expected number of African American EMS employees. Instead of 886

African American EMS employees, FDNY should have employed about 2,003 African

Americans based on the City-wide numbers, a shortfall of about 1,117 African American EMS

employees. Conversely, instead of 1,694 white EMS employees, FDNY should have employed

only about 616 based on the City-wide numbers, an overemployment of about 1,078 whites in

EMS positions.

43. Upon information and belief, the disparities between the percentages of African

Americans employed by the New York City government and FDNY in each job category and

overall were as large or larger in 2004 (and earlier years) as they were in 2015. The disparities

also were similar in each year between 2004 and 2015 and up to the present.

44. The disparities between the percentages of African Americans employed by the

New York City government and FDNY were largely a product of FDNY’s racial discrimination

in hiring. In 2014, the only year for which the City has reported comparative data in its

Workforce Profiles, 41% of its hires overall were white employees and 27% were African

Americans. But at FDNY, 59% were white and only 14% were African American. In other

words, FDNY hired African Americans at only about half of the rate at which other City

agencies did.

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C. FDNY’s Employment of African Americans Is Particularly Low in Higher Compensated Positions 45. The shortage of African Americans in FDNY’s Civilian jobs alleged in paragraph
40 above is not uniform. FDNY employed African Americans at only 57% of the expected rates in the four primarily white higher-paying job categories (Administrators/Managers, Professionals, Craft/Operatives, and Management Specialists) and at 85% of the expected rates in the three primarily minority lower-paying job categories (Para Professionals, Clericals/Clerical Supervisors, and Laborers and Transportation). This difference reflects both that hiring discrimination at FDNY is more pronounced in the higher paying job categories than the lower paying job categories, and that FDNY discriminates in advancement of African Americans from the lower paying job categories to the higher paying job categories.
46. Even within job categories, African Americans tend to be found disproportionately in lower paying jobs. For example, in 2015 Clerical Associates were paid on average about $42,000, while Principal Administrative Associates were paid about $56,500 on average, i.e., about 33% more. There were approximately four times (400%) as many African American as white employees with the Clerical Associate job title in 2015, but only 50% as many African American as white employees with the Principal Administrative Associate job title that year.
47. As another example, Computer Associates averaged about $10,000 less in compensation than Computer Specialists in 2015. There were about equal numbers of white and African American Computer Associates in 2015, but four times as many white as African Americans in the higher-paying Computer Specialist position in 2015.
48. The same pattern exists among EMS employees. The hierarchy of principal EMS jobs, from lowest paid to highest, is emergency medical technician, paramedic, lieutenant, and
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captain. About 20-25% of EMTs, paramedics, and lieutenants are African American. But, by Plaintiffs’ count, only three of about 60 EMS captains, or 5%, are African-American. Because of FDNY’s extreme reluctance to promote an African American to a captain position, AfricanAmerican EMS Lieutenants refer to themselves as “life-long lieutenants.” Unlike lower level promotions, which depend on passing a test administered by DCAS, advancement to a captain’s position requires that a lieutenant be invited to interview for becoming a captain. It thus combines a tap-on-the-shoulder system with a subjective evaluation process. Not surprisingly, African Americans find that they seldom are invited to interview and regularly do not do well enough in the perception of the white officers who administer the interviews to be offered a captain’s position.
49. FDNY is fully aware from litigation of the difficulty that African Americans (and women) experience in attaining the rank of EMS captain. In 2006, five female EMS lieutenants sued FDNY for discrimination because of repeated denials of promotion to the EMS Captain position. The suit ultimately was settled, supposedly for multimillions of dollars. Additionally, in 2011, a black female EMS Lieutenant filed a discrimination lawsuit charging that the FDNY repeatedly denied her promotion to the EMS Captain's position. The City also settled that case.
50. While using interviews to block African American advancement in the EMS ranks, FDNY facilitated the advancement of white employees through a policy change in 2010 that has continued thereafter. An employee has to be certified as a Paramedic before being promoted to a Lieutenant. In 2010 FDNY began offering EMTs who had passed the test to be a Lieutenant but were not qualified as Paramedics a nine-month Paramedic training program. The primary beneficiaries of the training were white employees (often serving as Chiefs’ Aides). The FDNY held up promotions for others who had passed the Lieutenant test until the Paramedic
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training was complete, and then promoted the graduates to Lieutenant positions. As a result, many white employees who never served as Paramedics were promoted over employees with years of experience as Paramedics, disproportionately racial minorities.
51. Upon information and belief, in 2004 the disparity between the expected rates at which FDNY employed African Americans (measured by the employment rates of the New York City Government) and FDNY’s actual rates of employment of African Americans in higher paying job categories was, as in 2015, greater than the disparity between the expected and actual rates at which FDNY employed African Americans in lower paying job categories. The same was true for all years in between 2004 and the present. The persistence of these disparities over time reflects a continuing pattern of racial discrimination in job selection decisions, especially into higher paying jobs. D. The Experiences of the Plaintiffs and Class Members Reflect Discrimination in Job
Selection Decisions Against Outside and Internal African American Applicants 52. African Americans who managed to be hired by FDNY frequently are assigned initially to job positions that pay less than the positions to which white employees are assigned. For example, Civilian class member Yvonne Moore and white employee Marina Ryappo were hired within a year of each other, in 2012 and 2013. Although they were supposed to perform similar job duties, Ryappo was given a different job title, presumably as justification for a salary that then was about $18,000 more than Moore’s, $82,361 to $64,463. Despite being paid about 25% less, Moore often has to do the work of Ryappo, who spends a lot of her time out of the office shopping. Their supervisor, Assistant Commissioner Michelle Maglione, told Moore that she has to do Ryappo's work because “Marina does not get it.” As shown by the fact that she is performing Ryappo’s duties, Moore is qualified to perform those duties. Nothwithstanding
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Moore’s qualifications and Ryappo’s poor job performance, Ryappo’s salary in 2016 now exceeds Moore’s by almost $20,000: $88,228 to $68,414.
53. African American employees also find it very difficult to advance at FDNY. In many instances, they apply unsuccessfully for posted vacant positions. For example, when Plaintiff Liza Horsley was hired as a clerical employee at FDNY in 1998, she did not have a college degree. While continuing to work full-time, she earned a Bachelor's degree in 2000 and a Master's degree in Social Work in 2012. During her 19 years at FDNY, she has applied unsuccessfully for about ten positions for which she was qualified, including several positions at the medical office directly related to her Masters in Social Work, but only twice even received interviews. She thus remains an overqualified Clerical Associate, with a salary of only $44,619 in 2016.
54. Horsley, like other African Americans, also finds it difficult to advance within her own unit. In 2014, she applied for a Community Coordinator position that opened within her Fire Alarm unit. The position was awarded to a white female who joined FDNY as a temporary employee in 2011 and was earning about $37,000 as a Community Associate position in 2013. As a result of the promotion, the successful applicant’s salary jumped to $52,457 in 2014. Horsley was denied despite her educational achievements, her 13 years of additional seniority, and the fact that she was fully qualified for the position. In 2016 the successful applicant had a salary of $56,229, about $12,000 more than Horsley. Horsley applied for a Community Coordinator position within her unit again in 2017, but FDNY selected a white female who came from an outside agency.
55. Plaintiff Stephanie Thomas has been stuck at the Computer Specialist I level since she joined FDNY in 1989, despite her impressive credentials. She holds a BA Degree in
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Computer Science from Winston-Salem State University, and a Master's Degree in Project Management from Keller Graduate School of Management. Before joining the FDNY, Thomas was employed as a Computer Consultant to some of the leading IT companies in the United States: Burroughs Corporation, Pitney Bowes, Wang Corporation and Arthur Anderson. Since joining the FDNY, Thomas has received The George F. Mand Administrative Award (awarded to an FDNY member whose services led to the improvement of the agency’s services) and the NYC Excellence in Technology award (awarded to NYC technology employees who have performed in a stellar fashion; in Thomas’ case, she served as Project Manager in a multimillion, City-wide, multi-agency technology project). She also has received advanced training, such as the Installation and Deployment in Microsoft Dynamics and the DCAS-Project Management Professional Certification Training. But all of her efforts to advance, even to move up to a Computer Specialist II or III level, have been rebuffed. Prior to 2015, she applied for approximately seven promotions for which she was qualified, received only two interviews, and never was offered a position.
56. Thomas recognized the need for management of projects involving technology before FDNY management did and obtained training in project management, and she has the office title of a project manager. But her training and awards in project management have no more resulted in promotions than her training and awards in information technology. Within the past two years alone, she has applied for seven different project management positions for which she was qualified that would have represented promotions and resulted in pay increases. To the best of her knowledge, FDNY has filled five of the positions, all of them with white candidates. At least one of the successful white candidates had only a high school degree. Nor is Thomas the only African American so rebuffed. At least three other FDNY African American employees
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applied for three senior project manager positions posted October 25, 2016 but were not hired for either of the positions that have been filled.
57. Similarly, Civilian class member John Dove has been an associate inspector in the Bureau of Fire Prevention, reporting to white director Alex Spektor, since he joined FDNY in 2008. Over the years he has applied for promotions to three vacant positions, but in each instance the positions have been awarded to white applicants. Two of the successful applicants, James Chiarchiaro in 2009 and Mark Remolino in 2012, were also associate inspectors. The third successful applicant, Tara Anand, had joined FDNY only in 2012 and was not in the Bureau of Fire Prevention before her promotion in 2014 to the Bureau’s Associate Project Manager position. When Anand received the promotion, Spektor asked Dove to train her. Chiarchiaro and Remolino, who even before their elevation earned larger salaries than Dove, received 8% salary increases upon their promotions. Anand saw her pay rate jump by about 50%, from $48,126 to $72,383. By contrast, the pay rate of Dove, who has not had the benefit of any promotions or discretionary increases, has inched up from $54,141 in 2009 to only $58,046 in 2016, despite a series of outstanding ratings on his performance reviews.
58. Plaintiff Arlene Simmons became an EMS lieutenant near the end of 2012. Having waited the required four years to apply, Simmons applied for a promotion to a captain position in September 2017. She does not expect to be promoted. As stated above, over 20% of lieutenants are African American but only about 5% of captains are.
59. In other cases, it has been pointless for African Americans to apply because FDNY has preselected a white employee for a posted position. For example, in June 2016, the Fiscal Services unit posted a new position for a Minority and Woman Owned Business Enterprise Manager. Plaintiff Deborah Bowman, who had been employed by FDNY since 1987
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and worked in that unit, met the posted qualifications and was interested in applying. However, when she inquired about the position, she was informed that Fiscal Services Director Barry Greenspan was going to give the job to Shannon Cardone, a white employee who had been hired into the FDNY in 2012. Bowman knew that she had little chance because the “fix was in.” Indeed, Cardone received the position, and her salary jumped from $73,943 in 2015 to $88,700 in 2016, an increase of 20%. Bowman, who has been an FDNY employee for 30 years, saw her salary increase from $64,463 to $66,075, an increase of 2.5%. This was just one example of the difficulties that Bowman faced in receiving a promotion. She applied unsuccessfully for at least seven promotions within FDNY between 2004 and the present. The only promotion that she received she did not apply for. In 2012 FDNY changed her title from Principal Administrative Associate to Administrative Manager because she passed a DCAS promotional test automatically entitling her to the Administrative Manager title, not as a result of a competitive posting. At that time, she received an approximately 8% salary increase that seems, in general, to be the limit for African American employees – but not white employees such as Cardone – receiving a promotion.
60. Plaintiff Debra Poe, like Bowman, is an Administrative Manager whose only promotion at FDNY came six years ago after she passed the DCAS promotional test (but received only a 4.5% pay boost). Poe is interested in an Executive Assistant position, and has the qualifications because most of the Executive Assistants are either Principal Administrative Associates or Administrative Managers. However, she knows that there is no need to apply because the positions are preselected if they are even posted.
61. Preordained promotions for white employees would occur even more frequently but for occasional concerted actions by disfavored black employees. In 2016, the FDNY posted
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a job announcement for “Deputy Director, Public Certification and Testing” in the unit of Bureau of Fire Prevention Director of Public Certification Steven Ertrachter. Civilian class member Brenda McKiver expressed interest in the position to Ertrachter, who responded, “Brenda, you can apply for it, but you’re not going to get it.” McKiver soon learned that the position had been created for a white employee, Maryana Chouchereba, that FDNY’s Assistant Commissioner for Finance & Budget Steve Rush had already approved a title change and salary increase for her, and that Chouchereba had her new business cards printed with the “Deputy Director, Public Certification and Testing” title even though no one had been interviewed for the position and no selection had been announced. McKiver complained to McKavanagh. Presumably as a result of the complaints of McKiver and other employees, the FDNY rescinded the job posting. But FDNY gave Chouchereba a consolation prize, an increase in her salary from $65,417 to $75,620, an increase of about 15.6%.
62. Sometimes white employees are promoted without FDNY going through the charade of a posting. In 2014, white employee Natalia Zorina was promoted to a new supervisory position within the pension unit under Assistant Commissioner for Budget & Finance Rush. Civilian class member Debra Person had been responsible for many years for many of the duties of the supervisory position. However, Person never had an opportunity to apply for the new position because it was never posted. Zorina, whose salary already was about $3,600 greater than Person’s, received an 8% increase as a result of the promotion, further increasing the pay gap between them. Person raised the lack of a posting with Director Mary Basso, to which Basso responded, “Well, that’s my decision.”
63. On other occasions, FDNY denies African Americans promotions that reflect the job duties that they actually are performing. For example, in 2015 Civilian class member Carline
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Germain was promoted to a position with the office title of Executive Assistant for the Chief of Fire Prevention with the provisional civil service title of Administrative Manager. Within weeks of her appointment, she began assuming a plethora of responsibilities in addition to the duties in her job description. In mid-2016, her unit head, Ronald Spadafora, requested that her office title be changed from Executive Assistant to Director of Special Projects and Events (while retaining her Administrative Manager civil service title) and her salary increased to $95,000 from about $62,500 annually. Germain was informed that FDNY’s Assistant Commissioner for Finance & Budget Steve Rush denied the request without explanation. Several weeks later, her direct supervisor, Acting Chief of Fire Prevention Thomas McKavanaugh, submitted a second request again asking that her office title be changed to “Director of Special Projects and Events,” and that her salary be increased to $87,000. Again, Rush denied the request without explanation. To date she has continued to perform a laundry list of responsibilities in addition to the duties anticipated when she was hired for the position. She still has not received a raise commensurate with her responsibilities.
64. FDNY even demotes African Americans in situations in which white employees are not. After working for seven years as a provisional Administrative Staff Analyst, Plaintiff Annette Richardson was demoted in April 2017 to an Associate Staff Analyst Level I and her salary was reduced by about $1,000. This reduction occurred even though her job duties remained the same and her performance was not deficient. FDNY could have given her another provisional title, as it did Jack Gridley, her predecessor as the head of the Human Resources Information Services function, but instead it chose to demote and reduce her compensation. .
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E. FDNY’s History and Culture of In-Group Favoritism and Racial Discrimination 65. The underemployment of African Americans in EMS and Civilian jobs and the
experiences of the Plaintiffs are consistent with FDNY’s long history of discriminating against African Americans as firefighters. During the past 50 years, two large, successful class action lawsuits against the City of New York have claimed that the FDNY has discriminated against African Americans and Hispanics in the hiring of firefighters. Although the lawsuits involved applicants for firefighter positions rather than EMS and Civilian employees and applicants, the lawsuits are relevant because of the resistance to integration exhibited by high levels of the FDNY.
66. Almost 45 years ago, in 1973, Judge Weinfeld of the Southern District of New York after a bench trial held that the City’s written and physical examinations for entry-level firefighters violated the Equal Protection Clause because of their discriminatory impact on African American and Hispanic applicants. See Vulcan Society of New York City Fire Dep’t, Inc. v. Civil Serv. Comm’n, 360 F. Supp. 1265, 1269 (S.D.N.Y.), aff’d in relevant part, 490 F.2d 387 (2d Cir. 1973). The Vulcan Society, the plaintiff, was established in 1940 by a group of Black firefighters to provide mutual support necessitated by the blatant segregation of the FDNY. The judge ordered that at least 25% of the new hires for firefighter positions be racial minorities, and ordered defendants to create a new examination that did not discriminate against African Americans and Hispanics. Vulcan Society of New York City Fire Dep’t, Inc. v. Civil Serv. Comm’n, 490 F.2d at 391.
67. The efforts to integrate the firefighters ended with the expiration of the Vulcan Society injunction:
The Vulcan Society injunction lapsed in 1977. That year, the City abandoned the 3:1 hiring ratio and instituted a hiring procedure that required applicants to take a
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cognitive examination and demonstrate minimum appointment requirements such as college credits, a driver’s license, and certified first responder with defibrillation training.
The subsequent history of the FDNY demonstrates that whatever practical effect Judge Weinfeld’s injunction may have had on minority hiring dissipated shortly after the injunction expired. Indeed, the history suggests that any such effect constituted little more than a brief departure from an otherwise relentless pattern. In 1963, ten years before the Vulcan Society litigation, 4.15% of all FDNY employees (including non-uniformed employees) were black. In 1971, that number was essentially unchanged. At the time of the Vulcan Society litigation, blacks and Hispanics constituted 32% of the City’s population, but only 5% of the Department. In 1990, almost two decades later, blacks made up 29% of the City's population, but only 4% of firefighters. In 2002, 25% of the City's residents were black, compared to only 2.6% of its firefighters. Between 1991 and 2007, black firefighters never constituted more than 3.9% of the force, and by the time this case was filed in 2007, the percentage of black firefighters in the FDNY had dropped to 3.4%.
United States v. City of New York, 683 F. Supp. 2d 225, 241 (E.D.N.Y. 2010) (citations
omitted).
68. During the 30 years between 1977 and 2007, the employment of African
American firefighters in the FDNY lagged far behind the employment of African Americans in
other uniformed services in New York, such as the police. Id. at 233.
69. In response to the ongoing discrimination, the United States brought suit in May
2007 in the Eastern District of New York against the City under Title VII alleging that the City’s
procedures for screening and selecting applicants for entry-level firefighter positions
discriminated against black and Hispanic applicants under a disparate impact theory. United
States v. City of New York, 683 F. Supp. 2d 225, 233 (E.D.N.Y. 2010) (summarizing procedural
history). In September 2007, the court permitted the Vulcan Society and three individuals to
intervene. The intervenors differed from the United States by claiming that defendants had
engaged in a pattern or practice of intentional discrimination against black applicants. Id. at 234
(discussing procedural history).
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70. In July 2009, Judge Garaufis granted the motion for summary judgment filed
jointly by the United States and intervenors on their prima facie case of disparate impact and on
the City's business necessity defense, thereby establishing that the City was liable for disparate
impact discrimination under Title VII. United States v. City of New York, 637 F. Supp. 2d 77,
82-83, 132 (E.D.N.Y. 2009).
71. The next year, Judge Garaufis granted the intervenors’ motion for summary
judgment on their pattern-or-practice claims as well. Although the Second Circuit later reversed
and remanded, concluding that there were disputed issues as to some facts, it did not disturb
Judge Garaufis’ finding that the Vulcan Society and other intervenors presented
convincing evidence that the City, its agencies, and relevant decisionmakers have been aware that the FDNY’s hiring procedures discriminate against black applicants and have nonetheless refused to take steps to remedy this discrimination. Over several years, the EEPC [the City’s Equal Employment Practices Commission, an independent, non-mayoral entity charged with monitoring the compliance of City agencies with the City’s EEO policies] repeatedly informed Commissioner Scoppetta and his predecessor that the preliminary results of Exam 7029 revealed a wide disparity between the pass rates of white and black test-takers . . . . Neither Commissioner took corrective action, despite a municipal law requiring them to assess the discriminatory impact of the FDNY’s hiring practices and to explore viable alternatives. When the EEPC sent a report documenting the FDNY’s hiring disparities and compliance failures to Mayor Bloomberg, he responded that he was satisfied with the FDNY’s efforts. United States v. City of New York, 683 F. Supp. 2d at 250-51 (citations omitted). 72. Mayors as well as FDNY executives ignored the information provided by the
EEPC discussed above, New York City’s Public Advocate and multiple other high-ranking
government officials concerning racial discrimination during the hiring process and entreaties to
these officials to treat black applicants equally. See United States v. City of New York, 2011 U.S.
Dist. LEXIS 115074, at *16-21 (E.D.N.Y. Oct. 5, 2011). Judge Garaufis summarized that the
FDNY had engaged in “34 years of intransigence and deliberate indifference, bookended by
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identical judicial declarations that the City’s hiring policies are illegal.” United States v. City of New York, 683 F. Supp. 2d at 262.
73. The intransigence and deliberate indifference continued even in 2010 while the litigation was ongoing. The City administered a new test afflicted with the same defects as the old one, and not surprisingly, it again had an adverse impact on African American and Latino applicants. Judge Garaufis gave the City five alternatives to modify the results so that its hiring more closely approximated the percentages of various minority groups taking the test. United States v. City of New York, No. 07-CV-2067 (NGG) (RLM), 2010 U.S. Dist. LEXIS 95083 (E.D.N.Y. Sept. 13, 2010). But instead of adopting one of these alternatives, the City stated that “[e]very one of the five proposals from which the Court [was] allowing the city to select involve[d] some form of race-based quota” and stated that it would not hire at all until it developed a new test. Hal Budnick, Smoking Out Racism in the FDNY: The Dwindling Use of Race-Conscious Hiring Remedies, 77 BROOK. L. REV. 1249, 1270 (2015), available at: http://brooklynworks.brooklaw.edu/blr/vol77/iss3/9.
74. The City appealed the grant of summary judgment on the disparate treatment claim, and the Second Circuit reversed in 2013 on the basis that the City had articulated a nondiscriminatory reason for its continued use of the tests that was sufficient to survive summary judgment. The appeals court remanded for a trial on the issue of whether the FDNY had intended to discriminate against African American and Latino applicants for firefighter positions. United States v. City of New York, 717 F.3d 72, 91 (2d Cir. 2013).
75. Two years later, in 2015, the parties entered into a settlement concerning both monetary relief and injunctive relief. The settlement concerning injunctive relief includes creation of the position of Chief Diversity and Inclusion Officer, discussed below. Under the
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settlement the percentage of black firefighters has increased, but African American EMS and Civilian Employees have not experienced similar gains.
76. Until the settlement of the United States v. City of New York litigation, FDNY leadership and rank-and-file were overwhelmingly of Irish and/or Italian descent, and had been for a century or more. Irish and Italian administrators and managers tended to select young adults whose parents, ancestors and/or neighbors had worked in the agency for employment in the “family” business. As a result, African Americans and other racial minorities were largely excluded, as even authors sympathetic to those Irish and Italian administrators and firefighters recognized. See Tom Deignan, “Is the FDNY Racist?”, at http://www.irishabroad.com/news/irishinamerica/columnists/Sidewalks/isthefdnyracist.asp; Terry Golway, “The Irish are forever in the ranks of New York’s bravest,” at http://belfastmediagroup.com/the-irish-are-forever-in-the-ranks-of-new-yorks-bravest; Niall O'Dowd, “End of an era of Irish domination in NY Fire Department,” at www.irishcentral.com/opinion/niallodowd/end-of-an-era-of-irish-domination-in-ny-firedepartment.
77. While Mayor de Blasio made some changes at the top of FDNY in response to the settlement of the United States v. City of New York litigation, including most notably the replacement of Salvatore Cassano with Daniel Nigro as the head of the FDNY in 2014, these changes have not significantly altered the makeup of the managers engaged in job selection decisions or the culture of in-group favoritism and discrimination against African Americans. Indeed, Nigro, who had retired from the FDNY in 2002, still consults Cassano concerning important decisions affecting the FDNY.
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F. The Existence of a Small Group of Decision-Makers, Almost None of Whom Is African-American, Facilitates Racially Discriminatory Job Selection Decisions 78. The FDNY has approximately 30 bureaus and offices, most of them with multiple
units. The bureaus and offices are typically headed by employees with titles such as assistant commissioner, deputy commissioner, or “chief” of something, such as chief of operations, chief fire marshal, or chief medical director. Many of the larger units within bureaus and offices also are headed by persons with these or other managerial titles. Employees who provide input into job selection and pay decisions, who are collectively called “Department Leaders,” are not included within the proposed class. Plaintiffs estimate that in 2016 there were between 50 and 100 department leaders in FDNY over departments with Civilian and EMS employees.
79. Throughout the period from 2004 until the present, very few of the Department Leaders have identified as African American. Almost all Department Leaders identify as nonHispanic white, although the head of the Bureau of Human Resources throughout this period, Donay Queenan, identifies as biracial.
80. As discussed above, before a Departmental Leader can create a new position or fill a vacant position, he or she requires approval from Queenan and Assistant Commissioner for Budget & Finance Rush.
81. Queenan, or somebody from the HR unit whom she designates, often participates in the evaluation of candidates (both internal and external) to fill the positions, including in any interviews of the candidates. The decision about which candidate to select usually involves the Departmental Leader, possibly other participants from the unit, and Queenan or another human resources employee whom she has designated.
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82. To the extent that the salary or wage rate of the selected candidate is not dictated by a collective bargaining agreement, as discussed in Part VI below, Rush must approve that salary or wage rate.
83. No individual or unit oversees or reviews the decisions reached by these decisionmakers. A Personnel Review Board has reviewed the decisions concerning firefighters, but not the personnel decisions for EMS and Civilian employees.
84. In sum, between 2004 (and before) and the present, a small number of managers, almost all of whom identify as white, has made job selection decisions for EMS and Civilian positions at FDNY. Other than through retirements, these decision-makers have experienced little turnover since 2004. The decision-makers overwhelmingly have shared or acquiesced in a culture that favors Irish, Italian, and other employees of European origin and fosters resistance to and discrimination against African Americans. G. FDNY’s Failure to Adopt or Systematically Implement Established Human
Resources Techniques Also Facilitate Racially Discriminatory Job Selection Decisions 85. FDNY has failed to adopt or systematically implement at least four human resource practices that other organizations have widely adopted to try to ensure fair and nondiscriminatory decisions. The failure to adopt these practices has facilitated the pattern of discriminatory job selection decisions discussed above. 86. Performance Reviews. First, FDNY has failed to implement a rigorous performance appraisal system. As a result, the agency does not have a record of unbiased evaluations to review when an employee seeks advancement, making it easy to inject subjective and biased factors into the decision-making process. 87. FDNY almost never conducted performance appraisals until approximately 2010, when the City’s Department of Citywide Administrative Services (“DCAS”), which is
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responsible for supporting City agencies’ workforce needs in recruiting, hiring and training City employees, insisted that FDNY adopt a program of annual performance appraisals.
88. Since then, FDNY has implemented a performance appraisal system, but since adoption it has been flawed in design in multiple ways, including but not limited to:
 FDNY does not require appraisals for administrators and managers, only nonmanagerial employees;
 FDNY does not provide training or meaningful guidance on how to write objectives for an employee for a year in a S.M.A.R.T. (specific, measurable, achievable, results-focused, and time-bound) manner so as to enhance objectivity in measurement;
 FDNY requires that an employee should receive one of five ratings on each objective (outstanding, very good, good, conditional, and unsatisfactory), but provides no clear means of distinguishing between these ratings. For example, FDNY explains that an outstanding performance “far exceeded the standards” while a very good performance “significantly exceeded the standards,” without explaining how to distinguish between “far” and “significantly” exceeded the standards;
 FDNY then completely undermines the rating process by providing that the overall rating should take into account “individual task ratings,” “priority of the different tasks,” “lateness patterns,” “absence patterns,” “interactions with coworkers,” “unanticipated projects that were undertaken,” and “contribution to unit or organization goals,” without providing any guidance as to how to evaluate or factor into the overall rating the last six of those factors;
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 Except in rare instances, such as promotion to EMS captain, FDNY does not define how ratings should be factored into job placement decisions, if at all. Only otherwise qualified persons who have received an “excellent” or “very good” overall performance evaluation from the previous year will be considered for promotion to EMS captain. As a result of the many deficiencies in the design and implementation of the performance appraisal system, relatively few African American lieutenants can meet this rating requirement.
89. FDNY also has implemented the appraisal system in a flawed manner since 2010. Many, if not most, African Americans still do not receive annual performance evaluations. For example, Civilian class members Brendan Mahon and Frances Dempsey have not received performance evaluations in the past four years, while Yvonne Moore received an evaluation in 2015 – her only evaluation in the past four years – but only because she wrote it and her supervisor then signed it. And Civilian class member Brenda McKiver received an evaluation in 2016, the only one she has received for the past twenty years! FDNY simply does not monitor to ensure that managers engage in the mandated evaluation process. Without regular reviews for all employees, FDNY cannot effectively use reviews in job placement decisions, even if the review process was well designed.
90. FDNY’s failure to give annual performance evaluations to African American employees can severely impede those employees’ ability to advance or receive discretionary pay increases. For example, the collective bargaining agreement between the City and the Organization of Staff Analysts, the union representing Associate Staff Analysts such as Plaintiff Annette Richardson, and the collective bargaining agreement between the City and Communication Workers of America Local 1180, the union representing Clerical Associates,
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Principal Administrative Associates, and Administrative Managers such as Plaintiffs Deborah Bowman, Liza Horsley, and Debra Poe and provide that discretionary increases are “limited to employees with above-average ratings on their annual performance evaluations. A copy of the performance evaluation must be submitted to the Department of Personnel and the Mayor's Office with the Monthly Planned Action Report.” Thus, an employee who does not receive an annual performance evaluation is not entitled to a discretionary increase no matter what his or her level of performance.
91. Posting of positions. DCAS requires FDNY to post all vacant non-managerial positions so that all interested employees and potential employees can submit a timely application. This is not peculiar to the City of New York; posting is generally accepted among human resource professionals, partly to avoid the bias and favoritism associated with a tap-onthe-shoulder system. But as the experiences of Plaintiffs and Class members show, FDNY frequently has not posted vacant, non-managerial positions (and never posts vacant managerial positions to which Class members may aspire) since 2004 (if not before) or has prepared and posted them in a manner that precludes a fair competition for vacant positions.
92. FDNY circumvents fair competition through posting of open positions in at least three ways. Sometimes it does not post vacant positions that it intends to fill and just taps an employee to fill them. Sometimes postings are a sham because managers have preselected the person to fill the position. And sometimes it decides to give a job permanently to an employee who has been filling a position provisionally on the excuse that the employee already knows how to perform the job duties. Almost inevitably, FDNY gives white employees – not African Americans – positions without requiring open competitions for them.
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93. Reducing reasons for selections to writing. Human resource professionals also urge that decision-makers be required to reduce to writing the reasons for selecting a person to fill a vacant position. Although the stated reasons may be pretextual, the requirement of written reasons somewhat controls discriminatory decision-making when a rejected candidate has superior qualifications based on the factors that the decision-maker identifies as determinative. To the best of Plaintiffs’ knowledge, FDNY has not required decision-makers to reduce their reasons for selecting a particular candidate to writing at any time between 2004 (and before) and the present.
94. Monitoring of decisions for discrimination. A properly functioning human resources department monitors both individual job selection decisions and the statistical pattern of decisions over a period of time, such as annually. Because, to the best of Plaintiffs’ knowledge, FDNY does not require decision-makers to reduce their reasons for each decision to writing, it would be very difficult for the agency to review job selection decisions for possible illegal discrimination. As it is, FDNY makes no effort to review those decisions proactively, only after the fact if a passed-over employee chooses to complain internally or to initiate legal proceedings.
95. FDNY also does not monitor the statistical pattern of job selection decisions on an annual or other basis. In view of the judicial findings about the discrimination in which the FDNY engaged in hiring firefighters, the need for monitoring to prevent similar discrimination against African American and other minority employees in EMS and Civilian positions has been obvious. The failure to implement a rigorous monitoring program is, at best, reckless, and at worst evidence of tolerance of intentional discrimination at the highest ranks of FDNY.
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96. For many years, FDNY has not cared enough about discrimination to create an office responsible to and capable of engaging in necessary monitoring. The Bureau of Human Resources in 2017 had approximately 70 employees, but half of them are engaged in investigations of outside applicants for employment and none of them engages in monitoring duties. Instead, in addition to investigations, HR employees are engaged in activities such as managing applications for leave, personnel files, and the human resources information systems.
97. The Settlement Agreement that ended the litigation in 2015 provided for a new executive FDNY position, the Chief Diversity and Inclusion Officer (“CDIO”), to report directly to the Fire Commissioner, the head of the FDNY. The Agreement provides that the CDIO will be responsible, among other duties, for “promoting diversity in the FDNY and expanding awareness of the value of full inclusion of firefighters from all racial and ethnic groups.” The Agreement contemplates that the CDIO will, among other tasks, oversee the FDNY’s internal EEO Office, including identifying EEO resource and enforcement problems in order to improve the EEO system. United States v. City of New York, 308 F.R.D. 53, 66-67 (E.D.N.Y. 2015).
98. Judge Garaufis welcomed the creation of the CDIO position, explaining that enhanced minority recruitment is an appropriate remedy in this case; accordingly, efforts by a high-ranking FDNY official to encourage such enhanced recruitment would also be welcome. The court has previously discussed deficiencies of the FDNY's EEO Office, and required in the Modified Remedial Order that the City reassess the FDNY's EEO program in order to make substantial changes. Any help in that process by an FDNY executive tasked with promoting diversity would also be welcome. United States v. City of New York, 308 F.R.D. 53, 67 (E.D.N.Y. June 5, 2015) (citations omitted). 99. Fire Commissioner Nigro, under direction from the Mayor’s office, has selected two persons, first Pamela Lassiter and then Cecilia Loving, to fill the position of CDIO. Neither of them has the skills and/or experience to be effective in that position. When Lassiter was terminated after less than a year on the job, she had done nothing to monitor or address statistical
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disparities in the rates at which whites and African Americans had been selected to fill EMS and Civilian job positions, let alone racial disparities in compensation. Loving similarly has not attempted to monitor, let alone address, any racial disparities in job selections or compensation.
100. The FDNY’s EEO office, which reports to the CDIO, is no more capable of monitoring. In 2011, Judge Garaufis found that the FDNY's EEO Office was “woefully underfunded and fails to effectively carry out its responsibilities to ensure the FDNY's compliance with the EEO laws.” United States v. City of New York, 2011 U.S. Dist. LEXIS 115074, at *46 (E.D.N.Y. Oct. 5, 2011).
101. After giving testimony in the United States v. City of New York litigation that put the FDNY in an unfavorable light, Lyndelle Phillips, who had served as the Assistant Commissioner of EEO for four years, was demoted in 2011 and terminated in 2012. She never was allocated sufficient budget to monitor the job placement decisions throughout the FDNY. Phillips sued the City for racial discrimination and retaliation. Phillips was replaced by Margo Ferrandino, who quietly transferred to a different agency in early 2015. The position remained vacant until 2016, when Don Nguyen was appointed to the position.
102. As the New York Daily News reported, “The FDNY’s EEO office has always been a sore spot within the agency . . . . Many firefighters and EMS personnel — of all races and genders — have been frustrated by slow investigations and ongoing probes that don’t seem to yield clear conclusions . . . .”
103. The EEO unit’s budget has been increased under Nguyen, but its focus remains almost exclusively on investigating complaints rather than also monitoring to determine whether the statistical pattern of job placement and compensation decisions is adverse to African Americans or other protected minorities. Most of its approximately 14 employees in 2017 were
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lawyers engaged in investigations of individual discrimination allegations by employees and not on monitoring.
104. As a result of the long-standing failures in the mission and capabilities of the FDNY’s EEO office and of the failure of the CDIO to effect the types of changes contemplated by Judge Garaufis, FDNY has allowed the types of discrimination in job placement decisions discussed above to proceed unabated.
105. The City has not stepped into the breach caused by the inadequacies of FDNY’s Human Resources, CDIO, and EEO office to monitor FDNY personnel decisions for racial discrimination, even though it should know, not only from the United States v. New York litigation, but also from its own Workforce Profile reports, that racial employment numbers at FDNY are strikingly different than in the rest of its workforce.
VI. COMPENSATION DISPARITIES AND DISCRIMINATION A. A Small Group of Decision-Makers Makes or Approves Discretionary Pay Decisions
at FDNY 106. Each of the EMS and Civilian class members, as well as their counterparts of other races, is subject to a collective bargaining agreement between the City and one of several different unions. These CBAs prescribe minimum salaries or wage rates for each job title covered by the CBA. Many of the CBAs provide minimum salaries or wage rates for each level within each job title covered by the CBA. For example, there are four levels of Principal Administrative Associates, each with a CBA-prescribed minimum salary or wage rate. In addition, the CBAs prescribe mandatory compensation increases, if any, each year for all employees. 107. As a result, wage or salary differentiation among employees with the same job title and level can occur at only three times: when an employee is first hired by FDNY and
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FDNY agrees to pay him or her more than the minimum for the position and level; when an FDNY employee changes job titles or levels and FDNY agrees to pay him or her more than the minimum for the position and level; and when FDNY decides to give an employee an increase in pay that exceeds the raise mandated by the applicable CBA for all employees within that position and level.
108. A Department Leader may recommend a wage rate or salary for a new or promoted employee. However, the Department Leader may not award that pay level without the approval of Assistant Commissioner Rush. He typically decides whether to approve a salary, wage rate, or increase in excess of the minimum only after consulting with Queenan. As a result, Rush has pay-setting power, and Queenan has pay-setting influence, for all newly hired or promoted members of the proposed Classes. This facilitates discrimination in compensation.
109. Discretionary increases are made twice a year. Rush establishes a discretionary increase budget for each department. The Department Leaders next make recommendations concerning increases for favored employees. The recommendations are then considered by an approximately four or five person committee that includes Rush and Queenan. The FDNY bestows increases only on employees and in amounts approved by the committee.
110. Rush has a stated practice of not permitting increases in prior pay of over 8%, including when an employee is first hired by FDNY, receives a promotion, or receives a discretionary increase. However, this is not a stated policy or even a regular practice of FDNY. Rather, Rush and Queenan wield the 8% limit like a cudgel against African Americans to hold down their increases, but frequently ignore the supposed limit for white employees.
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B. Data Reflects Significant Racial Differences in Salaries or Wage Rates for Employees in the Same Position 111. Information concerning the job title, salary or wage rate, and total compensation
of each FDNY employee in each year from 2008 through 2016 is publicly available. Although the publicly available information does not contain race information, Plaintiffs have identified the race of many of the employees with certain job titles in order to compare the salaries or wage rates of African American employees in those job titles with the salaries or wage rates of white employees in the same job titles in the same year. Plaintiffs do not know the race of all employees, but know the race of sufficient percentages to make meaningful comparisons.
112. The pay of Administrative Staff Analysts provides a flagrant example of huge pay disparities between white and African American employees sharing the same job title. Plaintiffs were able to identify the race of 25 ASAs in 2016 who were white and seven ASAs that same year who were African American. The median salary of the 25 white ASAs in 2016 was about $125,000, while the median salary of the seven African American ASAs was about $87,000. Not one African American ASA has a salary equal to the median salary for the white ASAs. The difference in median compensation was about 44%.
113. The meteoric rate at which the compensation of white ASAs can rise is exemplified by white employee Timothy Keppler, who initially joined the FDNY as an Administrative Staff Analyst Trainee on May 26, 2015. His starting salary was $45,299. After only about a year, on June 13, 2016, the FDNY promoted Mr. Keppler to the position of Administrative Staff Analyst with an over 25% raise in salary to $57,590. On June 25, 2017, Keppler was again promoted to the position of City Resident Scientist (a non-civil service title given to him by FDNY HR) and his salary skyrocketed from $57,950 to $90,425, although his civil service title and his essential job duties remained unchanged. Between May 2015 and June
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2017 his salary virtually doubled. The median salary of the seven African American ASAs is about $3,000 less than Keppler’s, and they have worked far more years as ASAs for FDNY than has Keppler.
114. Most black employees at FDNY, even those who have labored for 25 years or more, make a mere fraction of Keppler's current $90,425 salary, regardless of work performance. No Plaintiff, and to the best of Plaintiffs’ knowledge no class member, has received close to a 100% increase over the course of two years, or even over the course of ten years.
115. ASAs are not alone. Of the 13 Computer Associates whose race Plaintiffs were able to identify in 2015, the median salary in 2015 of six white Computer Associates was $74,605, while the median salary in 2015 of seven black computer associates was $62,490. The difference in median compensation is about 19%.
116. Based on these examples, it is reasonable to believe that statistically significant disparities exist between the compensation of white and African American employees in many job titles.
117. The publicly available records reflect disparities between the compensation of white and African American employees in pay throughout the 2008-15 period. It is reasonable to infer that the disparities were as large or larger in 2004 (and earlier years) as they were in 2015. C. The Experiences of Plaintiffs and Class Members Illustrate the Compensation
Disparities Reflected in the Statistical Data 118. Plaintiff Annette Richardson illustrates the compensation discrimination that African Americans face when they first assume a position, creating a disparity with white employees that they may never be able to bridge. Richardson, who had joined FDNY in 2006, successfully applied in 2009 for the position of Director of Human Resource Information
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Systems that had been occupied by Jack Gridley, a white male, until he retired. Gridley’s salary had been about $103,000 annually, and he had the job title of Administrative Community Relations Specialist. Richardson asked for a comparable salary, but was told that she would not receive more than an 8% salary increase. FDNY also gave her a different civil service job title, Administrative Staff Analyst. Richardson acquiesced and assumed the ASA position with the office title of Director, HRIS at the starting salary of $69,971 dollars annually, 33% less than Gridley had been paid. Subsequently, Richardson learned that many persons who are promoted or hired to fill vacant positions receive salaries comparable to the people they replaced and are not limited to 8% salary increases. Richardson’s salary currently is only about $80,000, still about $23,000 less than Gridley’s had been.
119. Disparities in discretionary pay increases are a frequent issue. In 2007, Assistant Commissioner James Basile informed Plaintiff Deborah Bowman, who was then working at the FDNY's Fleet Services unit located in Long Island City, that he had requested a 4% discretionary salary increase for her and her co-workers. Bowman’s white co-workers subsequently received their discretionary salary increases, but she did not. Basile informed Bowman that he did not know why her salary increase was not approved by FDNY Headquarters, but later told her that her name had been included on the increase list by mistake. She then sent an email to Assistant Commissioner Rush asking for an explanation, but he never responded to her email. FDNY’s failure to give Bowman discretionary pay increases has continued, and currently, her pay is in the lower third of Administrative Managers, even though she has a Bachelor’s degree, which many Administrative Managers do not, and even though she has been an employee of FDNY for 30 years.
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120. In 2013, Bureau of Technology and Development Systems Chief Information Officer (CIO) Joel Golub asked Plaintiff Dino Riojas to assist in resolving a vexing database issue for the agency involving the migration from the use of the Windows XP to the Windows 7 application, which was set for April 8, 2014. Riojas was tasked with ensuring that data in over 2,800 Access databases was not lost or corrupted in the migration. He performed this task without assistance and successfully completed it on time. Both CIO Golub and Director Cheng thanked him for a job well done. The FDNY, however, did not reward him monetarily, which is not surprising because in his 35 years as a Computer Specialist for FDNY, Riojas has not received a single discretionary increase. The impact of the denial of discretionary increases can be seen by comparing the changes in salaries of the five persons who have worked as Computer Specialists between 2012 and 2016 whose salaries in 2016 were immediately larger than Riojas’ and the five persons whose salaries in 2016 were immediately lower. None of these ten comparators was African American. The salaries of Riojas and three other employees (Carla Murphy, Robert Neistein, Ching Tsang) rose only the CBA-mandated approximately 7.2%. The salaries of the seven other Computer Specialists (Xueliang Fang, Sam Feldman, Shan Guo, Tuan Nguyen, Rebecca Qiu, Zemfira Shapiro, and Linda Shang) jumped between 15 and 25% because of discretionary increases. The difference for Riojas in 2016 salary between a 25% increase and a 7% increase was about $17,000.
121. The only other African-American Computer Specialist, Plaintiff Stephanie Thomas, not only has been confined to the Computer Specialist I level for almost 30 years as discussed above, she also has not received any discretionary increases. Her annual compensation is stuck at the same level as new Computer Specialists, such as Michael Taylor, Kristen Lee, and Paul Whittingham. Between 2014 and 2016, her salary rose the minimum of about 7.2%, while
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many Computer Specialists who were earning about the same amount as Thomas in 2014 saw their compensation increase by about 11.7% (Stephen Chio, Francis Fung, Shakir Gusaroff, and Lung Li) or over 20% (Wei Gao).
122. Numerous black employees, like Bowman, Riojas, and Thomas, find it impossible to receive discretionary increases. For example, Civilian class member Jo Blackwell, a 38-year FDNY employee who has worked as a clerical associate in the FDNY’s Bureau of Fire Prevention since 2000, has not received a discretionary increase during those 17 years. Civilian class member Brenda McKiver, a 29-year FDNY employee who has worked as a principal administrative associate in the BFP for about 23 years, also has not received a discretionary increase. In response to Blackwell’s request for a raise, BFP Director Steven Ertrachter dismissively responded, “You don't need money. What do you need money for?” Ertrachter gave a very similar response to McKiver when she requested an increase. But he does not exhibit the same attitude toward their white co-workers such as Maryana Chouchereba, who received two discretionary increases in the past approximately five years. As a result, her salary jumped 25% between year end 2011 and year end 2016, while their salaries increased by only about 7% over the same period.
123. Even African American employees who do receive discretionary increases find that the increases are not sufficient to make their pay comparable to similarly situated white employees. For example, while Plaintiff Richardson heads the Human Resources Information Center and the Absence Control Unit, two of the units of the Human Resources unit, Margaret Puppa is the second in command of a different HR function, the Candidate Investigation Division, which investigates the background of candidates for positions. Richardson’s salary increased 16% between 2010 and 2016, from $69,971 to $80,826, a very large percentage
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increase among African American employees who did not receive promotions. Yet Puppa’s salary increased at more than double the rate, 34%, during the same span, from $89,081 to $119,573. While the function in which Puppa is a manager has more employees than Richardson’s function, a 50% pay differential between them is unjustifiable.
124. A second comparator for Plaintiff Richardson is Emily Rahimi, a white woman who also works in the Human Resources unit. She was promoted in 2013 from the position of Associate Public Information Specialist in FDNY’s Public Information Office to an Administrative Manager position in Human Resources and received a $20,000 raise from about $58,000 to $78,000. Although her responsibility was only to prepare a periodic employee bulletin, she had no staff to manage, and she fills an Administrative Manager position, which generally receives a lower salary than Richardson’s Administrative Staff Analyst position, Rahimi’s salary was about $8,000 more than Richardson’s in 2013. In 2015 Rahimi was reclassified as an Administrative Staff Analyst, although her job duties did not change. That title promotion resulted in a 12% increase in pay for her to almost $88,000, almost $12,000 more than Richardson. While Rahimi was receiving these pay increases, Richardson repeatedly requested raises from her manager, Donay Queenan, without success. Notably, in 2016, Richardson was given additional duties formerly performed by the Bureau of Technology & Development within FDNY, but again, her request to Queenan for a pay increase was not honored and did not even receive a formal response. In 2017, Rahimi’s pay was bumped again to over $92,000. Richardson finally received a raise on September 24, 2017, but that still leaves her pay well short of Rahimi’s.
125. Richardson is not alone in being an African American manager of a Human Resources unit whose pay lags far behind Puppa’s or Rahimi’s. Plaintiff Debra Poe heads the
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Civilian Leave function, with one assistant. Yet her salary was only about $69,000 in 2016, almost $20,000 less than Rahimi, who had no reports. D. Many of the Same Factors that Result in Racial Discrimination in Job Selection
Decisions Also Result in Racial Discrimination in Compensation Decisions 126. As discussed above in the context of job selection decisions, FDNY has a decades-long history of in-group favoritism toward Irish, Italian, and other job applicants of European descent and resistance toward African-American applicants. That same culture also causes decision-makers to disfavor African Americans in compensation decisions. 127. Also as discussed above, a small group of almost exclusively white managers makes job selection decisions. With respect to compensation decisions, those same individuals have input, but ultimate decision-making power is even more concentrated in one person, Assistant Commissioner for Budget & Finance Stephen Rush. 128. Finally, two of the failures of FDNY to adopt or systematically implement modern human resources practices contribute directly to compensation disparities. The first is the failure to require sufficiently objective performance reviews, to insist that all employees be reviewed, and to directly tie ratings to discretionary raises. Second, FDNY fails to monitor proposed and actual pay decisions each year to assess whether statistical racial disparities exist and, if so, to conduct further investigations to determine whether the disparities are justified. 129. FDNY’s failure to adopt human resources practices that minimize the opportunity for discriminatory compensation decisions is of a piece with its general disdain for laws applicable to compensation of employees. For many years, for example, Queenan has discouraged human resources employees from seeking cash when they work overtime. Instead, she has pushed them to put in for compensatory time instead of cash. Collective bargaining agreements between the City and unions representing employees under Queenan have not
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authorized this practice, making it illegal under both federal and state law. The practice has been striking because FDNY employees in firefighter, trade, and certain other job categories work prodigious amounts of overtime – frequently resulting in more overtime compensation than straight-time salary or wages, and yet FDNY has not sought to restrict that overtime.
130. In September 2017, Rush issued a memorandum to non-firefighter employees directing that any overtime that has not been pre-approved must be recorded as “voluntary” and paid in compensatory time rather than in cash. The collective bargaining agreements between the City and applicable unions have not authorized this practice, making it illegal under both federal and state law.
131. Rush’s memorandum excludes three groups from the restriction on receipt of cash for “voluntary” overtime: EMS, fire alarm dispatchers, and trade employees. The exemption of trade employees blows a hole in efforts to hold down overtime because they receive more overtime on average than any other category of Civilian or EMS employees. But, as reported above, they have a higher percentage of white employees than any other category of FDNY job outside of firefighters. The impact, and presumably the intent, of the exemptions is to benefit white employees and harm African Americans.
VII. CONTINUING VIOLATION AND DAMAGES 132. The culture, policies, and practices that have caused FDNY to underhire and underemploy African Americans, confine them largely to lower paying jobs, and set their salaries or wage rates below the compensation of white employees have all been in place since 2004, if not before, and have existed on a continuous basis at all times since then. The culture, policy, and practices have resulted in systemic and continuing racial discrimination in hiring, advancement, and pay decisions against African Americans in every year since 2004.
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133. FDNY’s underhiring and underemployment of African Americans, confining African Americans largely to lower paying jobs, and setting their salaries or wage rates below the compensation of white employees all have caused members of the two proposed Classes to receive far less in salaries and wages than they would have between 2004 (or earlier) and the present absent racial discrimination.
134. African Americans’ discriminatorily low salaries and wages also produce large damages in the form of lost overtime pay. Employees at FDNY earn prodigious amounts of overtime pay, often more than the amount of regular pay that they receive. Any salary or wage differential between two employees is increased, generally by 50%, at their overtime rates.
135. African Americans’ discriminatorily low salaries and wages also produce large damages in the form of diminished employee benefits. For example, the pension benefits to which a retiree is or may become eligible are, with certain limitations and variations, calculated by multiplying the number of years of credited service by the employee’s average salary in his or her final three years or highest three years of compensation. As a result, the higher an employee’s salary or wage rate during those three years, the greater the benefits that the employee may receive.
VIII. CLASS ALLEGATIONS 136. Plaintiffs bring this litigation on behalf of themselves and three classes:  A class of all African Americans who (a) have been employed in a Civilian full-
time position in FDNY below the level of Department Leader at any time between four years prior to the filing of this Complaint and the date a class is certified, or (b) passed any applicable DCAS tests, possessed all other posted requirements for any posted FDNY Civilian or EMS vacancy, and applied and were rejected by
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FDNY for any such position at any time between three years prior to the filing of this Complaint and the date a class is certified (“Job Posting Class”);  A class of all African Americans who have been employed in a Civilian full-time position in FDNY below the level of Department Leader at any time between four years prior to the filing of this Complaint and the date a class is certified (“Compensation Class”);  A class of all African Americans who have been employed in a full-time EMS lieutenant position in FDNY at any time between four years prior to the filing of this Complaint and the date a class is certified (“EMS Lieutenant Class”); Plaintiffs reserve the right to amend these class definitions in any way as the case progresses. A. The Job Selection Class 137. The Job Selection Class is sufficiently numerous that joinder of all of its members in this lawsuit would be impractical. As alleged above, about 330 Civilian Employees in 2015 were African American. With turnover, there are probably more than 400 current and former FDNY employees in the Job Selection Class. According to the 2015 Workforce Report, FDNY hired about 90 Civilian employees and about 500 EMS employees in 2015. If 2015 was typical, the agency hired about 270 Civilian employees and about 1,500 EMS employees over the past three years. Plaintiffs cannot know the number of rejected outside applicants who were African American until discovery commences, but almost certainly hundreds if not thousands of African Americans were among the rejected applicants who are also members of the Job Selection Class.. 138. The Class’s claims raise numerous common questions of fact or law, including but not limited to:
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 Did FDNY promote and hire Class members less frequently than similarly situated white peers?
 Were the job selection decisions adverse to Class members at least in part because of in-group favoritism toward persons of Irish, Italian, or other European descent?
 Were the job selection decisions adverse to Class members made by a small number of overwhelmingly white decision-makers, and if so, has that facilitated the discrimination?
 Has FDNY failed to adopt and/or systematically implement generally recognized HR practices, and if so, has that failure facilitated discrimination against Class Members in job selection decisions?
 Have FDNY executives and officials been aware that Class members receive fewer promotions and/or been hired less frequently than similarly situated whites and done nothing to rectify the disparities?
 Have the Mayor and other City executives and officials failed to exercise control over FDNY’s human resources and diversity practices despite myriad forms of notice of the racial discrimination at FDNY?
 Has FDNY had a continuing policy of discrimination against Class Members that entitles them to relief for discriminatory job selection decisions back to 2004 (or earlier)?
139. Plaintiffs Richardson, Bowman, Horsley, Poe, Riojas, and Thomas are typical of other Class Members in that they have been Civilian employees of FDNY and have claims of pay and promotion discrimination that they suffered as a result of the same three factors that led
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to discrimination against Class Members. Like other Class Members, their claims also give rise to liability under the continuing violations doctrine.
140. Plaintiffs Richardson, Bowman, Horsley, Poe, Riojas, and Thomas are adequate representatives of the Job Selection Class. Their claims are typical of the claims of other Class Members; they have no conflicts with the Class Members; and they have retained experienced counsel capable of representing the Class.
141. Class certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because FDNY has acted or refused to act on grounds that apply generally to the Job Selection Class such as by allowing a small group of almost exclusively white managers make job selection decisions and failing to adopt and/or systematically implement recognized means of controlling managerial bias. These actions and failures make appropriate Class-wide injunctive relief, including but not limited to the measures identified in the Prayer for Relief below.
142. Class certification also is appropriate under Federal Rule of Civil Procedure 23(b)(3). The common issues identified above will predominate over any purely individual issues. Moreover, a class action is superior to other means for fairly and efficiently adjudicating the controversy. After all these years, agency-wide injunctive relief is needed to address the discrimination. That type of relief would be difficult if not impossible to obtain in a non-class suit brought by one or a small number of plaintiffs. B. The Compensation Class
143. The Compensation Class is sufficiently numerous that joinder of all of its members in this lawsuit would be impractical. As alleged above, about 330 Civilian Employees in 2015 were African American. With turnover, the Compensation Class probably contains more than 400 members.
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144. The claims of the Class raise numerous common questions of fact or law, including but not limited to:
 Did FDNY pay Class members less than similarly situated white peers?  Did FDNY give Class members fewer and/or smaller pay increases, including
promotional increases, than it gave similarly situated white peers?  Were the compensation decisions adverse to Class members at least in part
because of in-group favoritism toward persons of Irish, Italian, or other European descent?  Were the compensation decisions adverse to Class members made by a small number of overwhelmingly white decision-makers, and if so, has that facilitated the discrimination?  Has FDNY failed to adopt and/or systematically implement generally recognized HR practices, and if so, has that failure facilitated discrimination against Class Members in compensation decisions?  Have FDNY executives and officials been aware that Class members receive lower pay than similarly situated whites and done nothing to rectify the disparities?  Have the Mayor and other City executives and officials failed to exercise control over FDNY’s human resources and diversity practices despite myriad forms of notice of the racial discrimination at FDNY?  Has FDNY had a continuing policy of discrimination against Class Members that entitles them to relief for discriminatory compensation decisions back to 2004 (or earlier)?
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145. Plaintiffs Richardson, Bowman, Horsley, Poe, Riojas, and Thomas are typical of other Class Members in that they have been Civilian employees of FDNY and have claims of compensation discrimination that they suffered as a result of the same three factors that led to discrimination against other Class Members. Like other Class Members, their claims also give rise to liability under the continuing violations doctrine.
146. Plaintiffs Richardson, Bowman, Horsley, Poe, Riojas, and Thomas are adequate representatives of the Compensation Class. Their claims are typical of the claims of other Class Members; they have no conflicts with the Class Members; and they have retained experienced counsel capable of representing the Class.
147. Class certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because FDNY has acted or refused to act on grounds that apply generally to the Compensation Class, such as by allowing a small group of almost exclusively white managers to make compensation decisions and failing to adopt and/or systematically implement recognized means of controlling managerial bias. These actions and failures make appropriate Class-wide injunctive relief, including but not limited to the measures identified in the Prayer for Relief below.
148. Class certification also is appropriate under Federal Rule of Civil Procedure 23(b)(3). The common issues identified above will predominate over any purely individual issues. Moreover, a class action is superior to other means for fairly and efficiently adjudicating the controversy. After all these years, agency-wide injunctive relief is needed to address the discrimination. That type of relief would be difficult if not impossible to obtain in a non-class suit brought by one or a small number of plaintiffs.
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C. EMS Lieutenant Class 149. The EMS Lieutenant Class is sufficiently numerous that joinder of all of its
members in this lawsuit would be impractical. About 70 EMS Lieutenants currently are African American. With turnover, the EMS Lieutenant Class probably has over 75 members.
150. The claims of the Class raise numerous common questions of fact or law, including but not limited to:
 Did Class members receive fewer promotions to captain than did similarly situated white peers?
 Were the promotion decisions adverse to Class members at least in part a product of in-group favoritism toward persons of Irish, Italian, or other European descent?
 Were the promotion decisions adverse to Class members made by a small number of overwhelmingly white decision-makers, and if so, has that facilitated the discrimination?
 Has FDNY failed to adopt and/or systematically implement generally recognized HR practices, and if so, has that failure facilitated discrimination against Class Members in promotion decisions?
 Have FDNY executives and officials been aware that Class members receive fewer promotions than do similarly situated white employees and done nothing to rectify the disparities?
 Have the Mayor’s office and other City executives and officials failed to exercise control over FDNY’s human resources and diversity practices despite myriad forms of notice of the racial discrimination at FDNY?
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 Has FDNY had a continuing policy of discrimination against Class Members that entitles them to relief for discriminatory promotion decisions back to 2004 (or earlier)?
151. Plaintiff Simmons is typical of other Class Members in that she is an EMS Lieutenant and has claims of promotion discrimination and/or is subject in the future to promotion discrimination resulting from the same three factors that led to discrimination against other Class Members. Like other Class Members, her claims also give rise to liability under the continuing violations doctrine.
152. Plaintiff Simmons is an adequate representative of the EMS Lieutenant Class. Her claims are typical of the claims of other Class Members; she has no conflicts with the Class Members; and she has retained experienced counsel capable of representing the Class.
153. Class certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because FDNY has acted or refused to act on grounds that apply generally to the Class, such as by allowing a small group of almost exclusively white managers to make promotion decisions and failing to adopt and/or systematically implement recognized means of controlling managerial bias. These actions and failures make appropriate Class-wide injunctive relief, including but not limited to the measures identified in the Prayer for Relief below.
154. Class certification also is appropriate under Federal Rule of Civil Procedure 23(b)(3). The common issues identified above will predominate over any purely individual issues. Moreover, a class action is superior to other means for fairly and efficiently adjudicating the controversy. After all these years, agency-wide injunctive relief is needed to address the discrimination. That type of relief would be difficult if not impossible to obtain in a non-class suit brought by one or a small number of plaintiffs.
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IX. COUNTS A. Count One: 42 U.S.C. §§ 1981, 1983
155. Plaintiffs reallege each of the paragraphs above as if they were expressly set out in this paragraph.
156. The City, through its agency the FDNY, has impaired under color of state and municipal law the right of Plaintiffs and members of each of the three proposed Classes to make and enforce contracts of employment, which under 42 U.S.C. § 1981 shall be the same as the right of white persons, in that the FDNY has (a) discriminatorily failed to select AfricanAmerican outside and internal candidates to fill vacant positions while instead selecting white candidates with lesser qualifications, and (b) paid African-American employees less than, and given African-American employees smaller pay increases than, similarly situated white employees.
157. In making its job selection and compensation decisions, FDNY and its officials and managers have acted under color of the statutes, ordinances, regulations, customs, and usages, of the laws of the State of New York which, among other things, delegate authority over these decisions to the City of New York.
158. The City, through its agency the FDNY, has subjected the Plaintiffs and the members of the proposed Classes to the deprivation of the rights, privileges, or immunities secured by 42 U.S.C. § 1981, as set forth above.
159. The discrimination in job selection and compensation decisions against Plaintiffs and members of the proposed Classes have been performed pursuant to a policy or custom within FDNY in violation of 42 U.S.C. § 1983. The discrimination has been so persistent or widespread to constitute a custom or usage with the force of law. It also has been so manifest as to imply the
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constructive acquiescence of senior policy-making officials within FDNY and the City Government. The City’s failure to train and supervise its employees adequately has displayed a deliberate indifference to the constitutional rights of African-American job applicants and employees at FDNY.
160. The policy or custom of racial discrimination within FDNY has been continuing since 2004, if not before.
161. Plaintiffs and members of the proposed Classes have been damaged by the discrimination in job selection and compensation decisions since 2004 (if not before) or such later date as they were first rejected for employment by FDNY or first became employed by FDNY. This damage takes the form of lost pay and lost employee benefits for members of the Job Selection Class who were not FDNY employees when they were rejected for employment, and for members of the Classes who were FDNY employees at the time of the discriminatory decisions, lost pay and diminishment of those employee benefits tied to pay levels. Class Members also have suffered damage in the form of mental pain and suffering as they have experienced stagnation in job position and compensation while watching equally or lesser qualified white employees rocket past them in position, compensation, or both. Members of all three Classes will be damaged in the future by the discrimination unless injunctive relief is entered. B. Count Two: New York City Human Rights Law
162. Plaintiffs reallege each of the paragraphs above as if they were expressly set out in this paragraph.
163. The City, through its Agency FDNY, has discriminated against each of the members of the Classes who have been employed or been rejected for employment at FDNY
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between three years prior to the filing of this Complaint and the date a class is certified (the “NYCHRL Class Members”), including the Plaintiffs who are members of those Classes, in compensation and/or in terms, conditions or privileges of employment because of their race in violation of NYC Administrative Code § 8-107.1(a)(3).
164. Through (a) FDNY’s failure to adopt or implement systematically widely accepted human resources practices that reduce the opportunity for discrimination, (b) FDNY’s culture of in-group favoritism, (c) FDNY’s assignment of job selection and compensation decisions to a very small group of almost exclusively white decision-makers who share in the culture of in-group favoritism, and (d) the City’s failure to exercise control over FDNY’s human resources and diversity practices, the City has engaged in a pattern or practice of discrimination in job selection and compensation decisions against Plaintiffs and the NYCHRL Class Members.
165. FDNY’s failure to adopt or implement systematically widely accepted human resources practices that reduce the opportunity for discrimination and its assignment of job selection and compensation decisions to a very small group of almost exclusively white decisionmakers, and the City’s failure to exercise control over FDNY’s human resources and diversity practices have had a disparate impact against Plaintiffs and the NYCHRL Class Members.
166. The policy or custom of racial discrimination within FDNY in job selection and compensation decisions has been continuing since 2004, if not before.
167. Plaintiffs and the NYCHRL Class Members have been damaged by the discrimination in job selection and compensation decisions since 2004 (if not before) or such later date as they were first rejected for employment by FDNY or first became employed by FDNY. This damage takes the form of lost pay and lost employee benefits for members of the Job Selection Class who were not FDNY employees when they were rejected for employment,
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and for NYCHRL Class Members who were FDNY employees at the time of the discriminatory decisions, lost pay and diminishment of those employee benefits tied to pay levels. NYCHRL Class Members also have suffered damage in the form of mental pain and suffering as they have experienced stagnation in job position and compensation while watching equally or lesser qualified white employees rocket past them in position, compensation, or both. NYCHRL Class Members will be damaged in the future by the discrimination unless injunctive relief is entered.
X. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court enter a judgment against Defendant and in favor of Plaintiffs and the Class and award the following relief: A. An order: certifying this action as a class action pursuant to Federal Rule of Civil
Procedure 23; declaring Plaintiffs Richardson, Bowman, Horsley, Poe, Riojas, and Thomas as representatives of the Job Selection Class and the Compensation Class and Plaintiff Simmons as the representative of the EMS Lieutenant Class; and declaring Plaintiffs’ counsel as counsel for each Class; B. An order granting Plaintiffs and members of the Classes actual damages for violations of 42 U.S.C. § 1981 and 1983 and of the NYCHRL; C. An order granting Plaintiffs and the members of the Classes costs of suit, reasonable attorney’s fees and expenses; D. An order granting Plaintiffs and the Classes appropriate injunctive and declaratory relief for a period of time to be determined by the Court but not less than seven years, including but not limited to:  Appointing an outside monitor going forward for five years or more to
review individual and overall job selection and compensation decisions to
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detect individual instances and patterns of racial discrimination and to train appropriate employees of the FDNY on how to perform such monitoring after the term of the outside monitor ends;  Requiring FDNY to create plans to increase the representation of African Americans in Civilian positions in which African Americans are underrepresented and in EMS positions above EMS Lieutenant, which plans shall be reviewed and approved by the outside monitor and ultimately the Court, and giving the outside monitor access to all necessary information to monitor FDNY’s actions to insure that FDNY complies with the plans;  Appointing either the outside monitor or another expert to conduct an audit of compensation of Civilian employees and adjust the compensation of any African American employees determined to be underpaid; and  Requiring FDNY to review its Human Resources practices identified in this Complaint and modify them as the outside monitor and ultimately the Court deem appropriate. E. An order granting Plaintiffs and the Class such other, further and different relief as the nature of the case may require or as may be determined to be just, equitable and proper by this Court.
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

ANNETTE RICHARDSON,

)

DEBORAH BOWMAN,

)

DEBRA POE,

)

DINO RIOJAS,

)

STEPHANIE THOMAS,

)

BRENDA McKIVER,

)

JON WATSON, and

)

ERICA RICHARDSON

)

)

On behalf of themselves and all others

)

similarly situated,

)

Civil No. 17-CV-9447 (JPO)

)

Plaintiffs,

)

AMENDED COMPLAINT

)

v.

)

CLASS ACTION

)

CITY OF NEW YORK,

)

)

Defendant.

)

)

I. INTRODUCTION 1. For well over a century, the Fire Department of New York (the “FDNY”) has engaged in a pattern or practice of systemic, continuous, and intentional discrimination against African American non-uniformed (“Civilian”) employees and job applicants in hiring, advancement, and compensation decisions. For about 100 years after the Civil War, white men, primarily of Irish and Italian descent, controlled the FDNY at all levels, from upper management to staff. Token integration began during the civil rights movement of the 1960s, but African Americans remained severely underrepresented at all levels of the agency and in all types of jobs.

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2. As a result of the broad pattern of racial discrimination, the percentage of African American employees in FDNY as a whole is far less than in other agencies of the New York City government, the percentage of African American employees in higher paying Civilian jobs in FDNY is far less than in lower compensated jobs, and African American Civilian employees are paid lower salaries or wages than white employees in the same job positions in the more highly compensated job categories.
3. The interaction of four factors produces these racial disparities in job selections and compensation. First, despite knowing of the statistical racial disparities, FDNY leadership has failed to adopt or implement systematically widely accepted human resources practices that reduce the opportunity for discrimination, including policies and practices in connection with performance appraisals, posting of vacant positions, and monitoring of decisions for patterns of racially skewed outcomes. Second, a culture of in-group favoritism under which white decisionmakers favor people with similar backgrounds to themselves has infected the FDNY for generations. Third, a very small group of decision-makers have contributed to the racial disparities through their decisions to approve or disapprove most proposed job selection and compensation decisions for Civilian FDNY employees. Finally, the Mayor’s office and other City offices and agencies have failed to exercise control over FDNY’s human resources and diversity practices despite myriad lawsuits, unfavorable reports, and other beacons shining light on the racial discrimination at FDNY. These factors reflect intentional racial discrimination against African American employees, and FDNY’s practices have had a disparate impact on the hiring, advancement, and compensation of African American Civilian employees.
4. Plaintiffs bring this action on behalf of themselves and two classes of African Americans defined more precisely in paragraph 134 below – the “Employee Class” and the
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“Rejected Applicant Class.” The compensation claims are brought on behalf of a subclass of the Employee Class, the “Employee Compensation Subclass.” They claim that the FDNY’s racial discrimination violates 42 U.S.C. § 1983 and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq.
II. JURISDICTION AND VENUE. 5. This Court has jurisdiction over the claims under 42 U.S.C. §§ 1981 and 1983 pursuant to 28 U.S.C. § 1343(a)(4), which confers original jurisdiction upon this Court in a civil action to recover damages or to secure equitable relief or other relief under any Act of Congress providing for protection of civil rights; pursuant to 28 U.S.C. § 1331, which confers original jurisdiction upon this Court in a civil action arising under the Constitution or laws of the United States; and pursuant to 28 U.S.C. § 1337, which confers original jurisdiction upon this court in a civil action arising under any Act of Congress regulating commerce. 6. This Court has jurisdiction over the claims under the NYCHRL pursuant to 28 U.S.C. § 1367(a), which confers supplemental jurisdiction upon this Court over claims “that are so related to claims in the action within [its] original jurisdiction that they for part of the same case or controversy . . . .” 7. Venue is proper in this Court under 28 U.S.C. § 1391 because Defendant resides in this judicial district and because a substantial part of the events or omissions giving rise to the claim occurred in this judicial district.
III. PARTIES 8. Plaintiff Annette Richardson is African American and has worked as a Civilian for the FDNY from 2006 until the present. She is currently employed as an Associate Staff
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Analyst and is a representative of the Employee Class and the Employee Compensation Subclass.
9. Plaintiff Deborah Bowman is African American and has worked as a Civilian for the FDNY from 1987 until the present. She is currently employed as an Administrative Manager. While her position includes the word “Manager,” she is classified as non-managerial. She is a representative of the Employee Class and the Employee Compensation Subclass.
10. Plaintiff Debra Poe is African American and has worked as a Civilian for the FDNY from 2006 until the present. She is currently employed as an Administrative Manager. While her position includes the word “Manager,” she is classified as non-managerial. She is a representative of the Employee Class and the Employee Compensation Subclass.
11. Plaintiff Dino Riojas is African American and has worked as a Civilian for the FDNY from 1982 until the present. He is currently employed as a Computer Specialist. He is a representative of the Employee Class and the Employee Compensation Subclass.
12. Plaintiff Stephanie Thomas is African American and has worked as a Civilian for the FDNY from 1988 until the present. She is currently employed as a Computer Specialist and Project Manager and is a representative of the Employee Class and the Employee Compensation Subclass.
13. Plaintiff Brenda McKiver is African American and has worked as a Civilian for the FDNY from 1988 until the present. She is currently employed as a Principal Administrative Associate. She is a representative of the Employee Class.
14. Plaintiff Jon Watson is African American and has worked as a Civilian for the FDNY from 1999 until the present. He is currently employed as an Associate Fire Protection Inspector. He is a representative of the Employee Class.
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15. Plaintiff Erica Richardson is African American. She unsuccessfully applied for four Civilian positions with FDNY in 2015 and 2016 – Substance Abuse Counselor, Family Liaison, Community Coordinator, and Academy Administrator – for which she was qualified. She is the representative of the Rejected Applicant Class.
16. The law of the State in which the district court is located determines a party’s amenability to suit. Under the New York City Charter, “all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law.” The FDNY is an agency of the City Government of New York. Because the FDNY is an agency of the City, the City is the named Defendant, but the Complaint focuses on the racial discrimination committed by the FDNY.
17. The FDNY is the agency charged with protecting the lives and property of the people of New York City through prevention, education, fire suppression, medical services and other related emergency and non-emergency activities. The Fire Commissioner, who heads the agency, is appointed by and reports directly to the Mayor of the City of New York.
IV. FDNY’S WORKFORCE 18. According to the Workforce Profile Report for FY 2015 prepared by the Department of Citywide Administrative Services for the City of New York (“2015 Workforce Report”), the FDNY had about 16,300 full time and about 100 part time employees at the end of Fiscal Year 2015. 19. The 2015 Workforce Report reflects that FDNY had over 8,400 firefighters and over 2,600 firefighter supervisors at that time. Together, these two groups comprised about 2/3 of the FDNY workforce in 2015.
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20. Racial discrimination was especially blatant against African Americans aspiring to become firefighters. In 2015, only about 8% of firefighters and about 2% of firefighter supervisors were African-American, and those pitifully small percentages would have been even lower but for the litigation, United States v. City of New York in the Eastern District of New York, discussed in subsection V.E below. Because of the continuing jurisdiction of the Eastern District over the injunctive relief contained in the settlement that resolved that lawsuit, AfricanAmerican firefighter employees and job applicants are not part of either proposed Class.
21. However, the 2015 Workforce Report places into the firefighter job category not only firefighters and their supervisors, but also fire protection inspectors. As discussed below, FDNY employed about 350 fire protection inspectors in 2015 and 2016. While these inspectors were treated as uniformed for a few purposes, for most purposes, including promotion and compensation, they were treated like civilian employees. They therefore are included in the proposed employee class and applicants for fire protection inspector positions are included in the applicant class.
22. The 2015 Workforce Report also shows that that over 3,800 employees worked in the EMS section of FDNY, about 22% of all FDNY employees. The EMS employees primarily consisted of over 2,400 EMTs, about 900 paramedics, and over 500 EMT supervisors (collectively, the “EMS Positions”). Because no Plaintiff works or applied to work in an EMS position, African American EMS Employees also are not part of either proposed Class in this case.
23. The percentage of African Americans among the remaining 1,600 employees, who are characterized as Civilian employees in and are the focus of this Complaint, has risen slowly since the 1960s, but not evenly. The positions occupied by Civilian employees (the
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“Civilian Positions”) are divisible into eight job categories. Seven of the job categories are

identified in the table below.

24. According to the 2015 Workforce Report, four of the seven listed job categories

had over 50% white employment in 2015 and under 25% African-American employment. The

other three job categories had well under 50% white employment and 33% or more African-

American employment. Not surprisingly, the four job categories with greater white and smaller

African-American employment had much higher average salaries or wages (not including

overtime) ($85,223) in 2015 than the other three categories ($52,709). The average salaries or

wages in the primarily minority jobs were only 62% of the average salaries or wages in the

primarily white jobs:

Employees in Primarily White Civilian Jobs Receive Much Higher Compensation at FDNY Than Do Employees in Primarily Minority Jobs (2015)

Job Category
Administrators/Managers Professionals (Science, Health, Lawyers) Craft/Operators Management Specialists Subtotals for White Jobs
Para Professionals Clericals/Clerical Supervisors Other (primarily Laborers and Transportation) Subtotals for Minority Jobs Total

Percent Percent

Number White Black

Primarily White Jobs

148

63%

18%

183

53%

14%

Percent Other
19% 33%

342

72%

12%

16%

263

56%

21%

23%

936

62%

16%

22%

Primarily Minority Jobs

50

33%

35%

32%

437

42%

33%

25%

62

41%

34%

25%

549 1,485

41%

33%

26%

54%

22% 24%

Average Salary/Wages
$117,831 $ 92,877
$ 79,870 $ 68,508 $ 85,223
$ 54,858 $ 52,515 $ 52,345
$ 52,709 $ 73,203

25. Overall, about 330 Civilian Employees in these job categories in 2015 were

African American, about 22% of the total number of Civilian Employees in these categories.

Because the proposed Employee Class excludes African Americans in the

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Administrator/Manager job category and certain other highly compensated individuals, about 300 Civilian Employees in these seven categories in 2015 were members of the proposed Employee Class.
26. In addition, the proposed Employee Class contains roughly 80 African American fire protection inspectors. Because the 2015 Workforce Report includes fire protection inspectors with firefighters, for which there is no comparable job in other City agencies, Plaintiffs cannot make the same type of comparison between the percent of African Americans in inspector positions at FDNY and in other agencies that they performed for the other seven job categories. However, there are other indicators, discussed below, of systemic discrimination against African Americans in fire protection inspector jobs.
V. FDNY’S JOB SELECTION DECISIONS A. FDNY Manipulates the City’s Standardized Processes for Filling Vacant Positions
Through Outside Hires or Promotions to Select Persons from Favored Groups 27. Most or all Civilian Positions are civil service positions. 28. Candidates for most but not all civil service positions must take and pass an exam before they can be hired. The positions for which tests are required are called the “competitive class.” Each civil service job title has a different exam. These exams, which are administered by NYC’s Department of Citywide Administrative Services (“DCAS”), are supposed to test individuals on the skills and abilities that they need to do the job. 29. There are two different types of civil service exams: open competitive exams open to members of the public; and promotion exams open only to current City employees. Incumbent employees are not supposed to have any priority in receiving notice of or in filling positions subject to open competitive exams. However, certain positions above entry level are limited to incumbent FDNY employees and are not open to the public.
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30. After each exam, DCAS creates an “eligible to hire” list. This list has all candidates who passed the exam, ranked in score order. When a New York City agency has a hiring need, it is supposed to contact candidates for that civil service job title for interviews in order of their ranked scores.
31. While some civil service job titles in the New York City government are unique or virtually unique to FDNY, such as the firefighter and EMS positions, most of the Civilian job titles are not. Thus, the “eligible to hire” lists provided to FDNY based on open competitive exams (as opposed to promotion only exams) should be identical to the “eligible to hire” lists provided to other government agencies seeking to fill positions with the same job titles.
32. The manager of an organizational unit seeking to fill a vacancy generally receives the “eligible to hire” list, directly or indirectly, from DCAS. Typically, FDNY, like other city agencies, conducts interviews of the candidates with the highest scores on the exams. This interview typically includes not only the unit head and/or the unit head’s representative, but also a representative of FDNY’s Human Resources unit. The HR representative generally is Donay Queenan, the head of the unit since 2004, or one of her direct reports to whom she delegates participation in the interview.
33. Because DCAS refers the same pool of candidates to FDNY and to other agencies seeking to fill Civilian positions with the same civil service titles, the percentages of African American employees in the Civilian civil service positions at FDNY should be similar to the percentages of African American employees in the identical positions at other city agencies. But, as discussed in subsections V.B and C below, the percentages of African Americans in FDNY Civilian positions are far lower than in other agencies in the New York City government. The gaps between the percentages of African American Civilian employees in FDNY and in
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other New York City agencies are especially pronounced in higher paying jobs. Reasons for these disparities are set out in subsections V.E through V.G.
34. In addition, FDNY management can, and frequently does, circumvent these standardized process by creating a particularized business title for a position and posting qualifications for that position that are tailored to the person whom management has predetermined should fill the position. Often, the favored person is someone with the firefighter title who is unable to perform the functions of that position and is assigned to a different position on a “provisional” or “temporary” basis. After posted qualifications for the business title are tailored to the provisional employee, that “firefighter” typically is offered the position after going through the interview process.
35. Sometimes the skewing of the process through job qualifications is not individualized, as in the case of Fire Marshals. Fire Marshals are among the highest paid job titles in FDNY; with overtime, many Fire Marshals earn in excess of $200,000 per year.
36. In the 1970s, a requirement was added to the list of Fire Marshal qualifications that a candidate have previously served as a firefighter. This qualification was added at a time that the FDNY began to integrate, but when virtually every firefighter was white. Because of this requirement and the FDNY’s strong, decades-long resistance to black firefighters, Fire Marshal ranks remain virtually lily-white.
37. Most Fire Marshals conduct investigations, like police detectives, while others provide security to Fire Department Headquarters, facilities, Fire Chiefs and the Fire Commissioner. Firefighters do not receive training in these duties. Accordingly, new Fire Marshals are sent to an academy and are given extensive training before beginning to function as Fire Marshals.
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38. If the goal were to limit Fire Marshals to job titles that provided exposure to the duties of Fire Marshals, then the approximately 350 lowly paid fire protection inspectors, many of whom are African American, should be eligible. They have much more extensive exposure and training concerning causes of fires and fire prevention than does the average firefighter.
39. This arbitrary, exclusionary policy has the effect of keeping African Americans, whether in or outside the FDNY, from attaining this prestigious, high paying position.
40. Another device used to bring favored persons, generally white people who are known by white managers at FDNY, into the department is to use an employment agency to fill a position on a “temporary” basis, but then to make the position permanent after the “temporary” employee has established himself or herself in the position. Upon information and belief, the manager alerts the favored person to submit his or her resume and other application materials to the employment agency. Also upon information and belief, the employment agency typically will forward application materials for several candidates but an FDNY manager makes clear to the agency that one of the persons whose materials should be included in the package is the favored person. The company most frequently used for this type of circumvention of the hiring process is called Adil Business Systems, Inc. Adil is beholden to FDNY because of a contract under which Adil or an affiliate performs accounting and bookkeeping services for FDNY. A 2009 report calculated that the accounting contract with Adil cost the Department over $1 million per year.
41. Another means by which FDNY circumvents the City’s efforts to create a raceneutral hiring process is to hire heavily into civil service positions for which DCAS has not created a standardized test. For example, the City does not have a standardized test for Community Coordinators. Although many clerical employees possess the qualifications to serve
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as Community Coordinators, which are higher-paying paraprofessional jobs, FDNY promotes very few clerical employees into Community Coordinator positions. Instead, it fills most of the Community Coordinator positions with outside hires who have not had to pass a DCAS examination; these hires often are white. FDNY, for example, has twice passed over Employee Class member Liza Horsley’s applications for promotion to Community Coordinator positions in favor of hires of outside white candidates, even though she has not only a Bachelor’s but also a Master’s degree and many years of experience with FDNY.
42. In still another strategy, the Bureau of Technology and Development Systems within FDNY hired a group of “temporary,” primarily non-African American, computer consultants, but converted many of them to permanent positions in FDNY.
43. Although the strategies may vary somewhat, their purpose and effect are the same: to keep the FDNY the most racially discriminatory agency in the City. B. FDNY Employs Much Lower Percentages of African Americans Than Other
Agencies Throughout the New York City Government 44. Although the tests and job selection processes that FDNY are supposed to use to fill vacant positions are the same as those that the other agencies of the New York City government are supposed to use, the results are very different. The table below compares the numbers and percentages of white and African American employees in each of the seven types of Civilian job categories listed in paragraph 23 above in the City government as a whole and in the FDNY, according to the 2015 Workforce Report. The final column is calculated by dividing the percentage of African Americans in each of the seven job categories in FDNY, as well as overall, by the percentage of African Americans in the corresponding group for the City government as a whole, and thus reflects the shortfall in African Americans at FDNY (if any) as judged by this comparator group:
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Shortfalls in Employment of African Americans in Civilian Positions

at FDNY in 2015

FDNY

NYC

FDNY

Job Category

Number White Black Number White Black Shortage

%

%

%

%

of Black

Employees

Primarily White Jobs

Administrators/Managers

148 63% 18% 23,526 48% 27%

-33%

Professionals (Science, Health,

183 53% 14% 26,026 34% 28%

-50%

Lawyers)

Craft/Operators

342 72% 12% 10,431 59% 19%

-37%

Management Specialists

263 56% 21% 13,003 33% 37%

-43%

Subtotals for White Jobs

936 62% 16% 72,986 42% 28%

-43%

Primarily Minority Jobs

Para Professionals

50 33% 35% 41,388 25% 33%

+6%

Clericals/Clerical Supervisors

437 42% 33% 32,652 23% 46%

-28%%

Laborers and Transportation

62 41% 34%

2,179 42% 33%

+3%

Subtotals for Minority Jobs

549 41% 33% 76,219 25% 39%

-15%

Totals

1,485 54% 22% 149,205 33% 33%

-33%

45. The City’s own numbers, set out in the 2015 Workforce Report, thus show that

overall the FDNY employed only 67% of the expected number of African Americans in 2015 in

these seven Civilian job categories, using employment throughout the City government to

determine the expected numbers. Because there were 1,485 Civilian employees in 2015, this

means that FDNY employed approximately 160 fewer African Americans than expected in

Civilian jobs.

46. Upon information and belief, the disparities between the percentages of African

Americans employed by the New York City government and FDNY in each Civilian job

category and overall were as large or larger in 2004 (and earlier years) as they were in 2015. The

disparities also were similar in each year between 2004 and 2015 and up to the present.

47. The disparities between the percentages of African Americans employed by the

New York City government and FDNY were largely a product of FDNY’s racial discrimination

in hiring. In 2014, the only year for which the City has reported comparative data in its

Workforce Profiles, 41% of its hires overall were white employees and 27% were African

Americans. But at FDNY, 59% were white and only 14% were African American. In other

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words, FDNY hired African Americans at only about half of the rate at which other City agencies did. C. FDNY’s Employment of African Americans Is Particularly Low in Higher
Compensated Positions 48. The shortage of African Americans in FDNY’s Civilian jobs alleged in paragraph 44 above is not uniform. FDNY employed African Americans at only 57% of the expected rates in the four primarily white higher-paying Civilian job categories (Administrators/Managers, Professionals, Craft/Operatives, and Management Specialists) and at 85% of the expected rates in the three primarily minority lower-paying job categories (Para Professionals, Clericals/Clerical Supervisors, and Laborers and Transportation). This difference reflects both that hiring discrimination at FDNY is more pronounced in the higher paying job categories than the lower paying job categories, and that FDNY discriminates in advancement of African Americans from the lower paying job categories to the higher paying job categories. 49. Even within the same Civilian job categories in FDNY, African Americans tend to be found disproportionately in lower paying jobs. For example, in 2015 Clerical Associates were paid on average about $42,000, while Principal Administrative Associates were paid about $56,500 on average, i.e., about 33% more. There were approximately four times (400%) as many African American as white employees with the Clerical Associate job title in 2015, but only 50% as many African American as white employees with the Principal Administrative Associate job title that year. 50. As another example, Computer Associates averaged about $10,000 less in compensation than Computer Specialists in 2015. There were about equal numbers of white and African American Computer Associates in 2015, but four times as many white as African Americans in the higher-paying Computer Specialist position in 2015.
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51. In still another example, in 2016 FDNY employed 99 Associate Fire Protection Inspectors level 2. Plaintiffs have been able to determine the race of 95 of them: 46 were African American, 49 were not. Thus, African Americans comprised 48% of the level 2 inspectors. By contrast, only 14 of the 52 level 3 inspectors of known race, or about 27%, were African American. The drop in African-American percentage of the inspector workforce from 48% of the level 2’s to 27% of the level 3’s is primarily a product of disparities in promotion rates. Although African Americans comprised 48% of the level 2 inspectors in 2016, only 1 of the 16 persons (6%) promoted to level 3 between 2010 and the present have been African American. Conversely, white employees were 26% of the level 2 inspectors in 2016, but 56% (9 of 16) of the persons promoted to level 3 between 2010 and the present. The disparity in the promotion rates of black and non-black employees cannot be attributed to tenure: the average tenure of African-American Associate Fire Protection Inspectors was about a year longer than that of non-African American Fire Protection Inspectors. And, of course, the difficulty that African American fire protection inspectors faced in achieving promotions had real world consequences. The salaries of almost all level 2 inspectors were about $56,700, while the salaries of level 3 inspectors generally were about $62,800 – a difference of about $6,100.
52. Upon information and belief, in 2004 the disparity between the expected rates at which FDNY employed African Americans (measured by the employment rates of the New York City Government) and FDNY’s actual rates of employment of African Americans in higher paying Civilian job categories was, as in 2015, greater than the disparity between the expected and actual rates at which FDNY employed African Americans in lower paying job categories. The same was true for all years in between 2004 and the present. The persistence of these
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disparities over time reflects a continuing pattern of racial discrimination in job selection decisions, especially into higher paying jobs. D. The Experiences of the Plaintiffs and Class Members Reflect Discrimination in Job
Selection Decisions Against Outside and Internal African American Applicants 53. The experiences of Plaintiffs and class members exemplify why there are fewer African Americans among Civilian Employees at FDNY than in corresponding jobs throughout the City government, and why the disparities are especially large in higher-paying positions. 54. Plaintiff Erica Richardson applied for a position as a substance abuse counselor at FDNY in late 2015. She was eminently qualified for the position: she earned a bachelor’s degree in therapeutic recreation from Kean University and another bachelor’s degree in psychology from the College of Staten Island. She has been a licensed substance abuse counselor since 2009. When she applied to FDNY, she worked as a recreation therapist for a veteran’s home operated by the State of New York. Her qualifications for FDNY’s substance abuse counselor position also are established by the fact that the agency interviewed her for the position on January 28, 2016. She was told that FDNY would make its selection in 30 days, but never was contacted again about the job. 55. Undeterred, Richardson applied for three positions in 2016, as a family liaison on June 9, 2016, a community coordinator on June 20, 2016, and an academy administrator on August 30, 2016. She was not interviewed, let alone hired, for any of those three positions. 56. The positions of substance abuse counselor, family liaison, and academy administrator apparently are FDNY titles rather than civil service titles. The publicly available payroll records use civil service titles. Because Plaintiffs do not have access to payroll records with FDNY job titles and because Richardson did not work at FDNY, Plaintiffs do not know
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whether those positions were filled and, if so, the race and qualifications of the persons hired to fill the jobs for which Richardson applied.
57. Community coordinator is a civil service job title. The publicly available payroll records indicate that FDNY hired three community coordinators in 2016 after Richardson’s June 20 application: Adam Lessuck, Katherine Raitz, and Sandra Sanchez. Upon information and belief, Lessuck and Raitz are non-Latino white employees, and Sanchez is a Latina. Also upon information and belief, Richardson’s two bachelor’s degrees and experience working with the public made her a superior candidate to the persons hired.
58. African Americans who managed to be hired by FDNY frequently are assigned initially to job positions that pay less than the positions to which white employees are assigned. For example, Employee Class member Yvonne Moore and white employee Marina Ryappo were hired within a year of each other, in 2012 and 2013. Although they were supposed to perform similar job duties, Ryappo was given a different job title, presumably as justification for a salary that then was about $18,000 more than Moore’s, $82,361 to $64,463. Despite being paid about 25% less, Moore often has to do the work of Ryappo, who spends a lot of her time out of the office shopping. Their supervisor, Assistant Commissioner Michelle Maglione, told Moore that she has to do Ryappo's work because “Marina does not get it.” As shown by the fact that she is performing Ryappo’s duties, Moore is qualified to perform those duties. Nothwithstanding Moore’s qualifications and Ryappo’s poor job performance, Ryappo’s salary in 2016 now exceeds Moore’s by almost $20,000: $88,228 to $68,414.
59. African American employees also find it very difficult to advance at FDNY. Plaintiff Stephanie Thomas has been stuck at the Computer Specialist I level since she joined FDNY in 1989, despite her impressive credentials. She holds a BA Degree in Computer Science
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from Winston-Salem State University, and a Master's Degree in Project Management from Keller Graduate School of Management. Before joining the FDNY, Thomas was employed as a Computer Consultant to some of the leading IT companies in the United States: Burroughs Corporation, Pitney Bowes, Wang Corporation and Arthur Anderson. Since joining the FDNY, Thomas has received The George F. Mand Administrative Award (awarded to an FDNY member whose services led to the improvement of the agency’s services) and the NYC Excellence in Technology award (awarded to NYC technology employees who have performed in a stellar fashion; in Thomas’ case, she served as Project Manager in a multimillion, City-wide, multiagency technology project). She also has received advanced training, such as the Installation and Deployment in Microsoft Dynamics and the DCAS-Project Management Professional Certification Training. But all of her efforts to advance, even to move up to a Computer Specialist II or III level, have been rebuffed. Prior to 2015, she applied for approximately seven promotions for which she was qualified, received only two interviews, and never was offered a position.
60. Thomas recognized the need for management of projects involving technology before FDNY management did and obtained training in project management, and she has the office title of a project manager. But her training and awards in project management have no more resulted in promotions than her training and awards in information technology. Within the past two years alone, she has applied for seven different project management positions for which she was qualified that would have represented promotions and resulted in pay increases. To the best of her knowledge, FDNY has filled five of the positions, all of them with white candidates. At least one of the successful white candidates had only a high school degree. Nor is Thomas the only African American so rebuffed. At least three other FDNY African American employees
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applied for three senior project manager positions posted October 25, 2016 but were not hired for either of the positions that have been filled.
61. Similarly, Plaintiff Jon Watson, a level 2 fire protection inspector, unsuccessfully applied four times for a promotion to a level 3 position between 2016 and the present. The latest time three people were promoted, the other times one person was selected. Watson doesn’t know who was selected in 2016, but none of the other five successful applicants was African American. Three were white (Julius Squillero, Fedor Prokipchuk, and Boris Fourmanov), one was Hispanic (Jose Palacios), and one was Asian (Mohammad Hosen). Watson’s qualifications were comparable to or greater than each of the persons selected for the promotion; for example, he had greater tenure than any of them. Moreover, other African Americans also applied unsuccessfully for most if not all those positions. FDNY’s failure to promote Watson, like its failure to promote Employee Class member John Dove as discussed below, is typical of the experience of other African Americans, as reflected in the fact as discussed above that only one of the 16 promotions to a level 3 inspector during the past eight years has gone to an African American.
62. Dove has been an Associate Fire Protection Inspector in the Bureau of Fire Prevention reporting to white director Alex Spektor, since he joined FDNY in 2008. Over the years he has applied for promotions to three vacant positions, but in each instance the positions have been awarded to white applicants. Two of the successful applicants, James Chiarchiaro in 2009 and Mark Remolino in 2012, were also associate inspectors. The third successful applicant, Tara Anand, had joined FDNY only in 2012 and was not in the Bureau of Fire Prevention before her promotion in 2014 to the Bureau’s Associate Project Manager position. When Anand received the promotion, Spektor asked Dove to train her. Chiarchiaro and
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Remolino, who even before their elevation earned larger salaries than Dove, received 8% salary increases upon their promotions. Anand saw her pay rate jump by about 50%, from $48,126 to $72,383. By contrast, the pay rate of Dove, who has not had the benefit of any promotions or discretionary increases, has inched up from $54,141 in 2009 to only $58,046 in 2016, despite a series of outstanding ratings on his performance reviews.
63. In other cases, it has been pointless for African Americans to apply because FDNY has preselected a white employee for a posted position. For example, in June 2016, the Fiscal Services unit posted a new position for a Minority and Woman Owned Business Enterprise Manager. Plaintiff Deborah Bowman, who had been employed by FDNY since 1987 and worked in that unit, met the posted qualifications and was interested in applying. However, when she inquired about the position, she was informed that Fiscal Services Director Barry Greenspan was going to give the job to Shannon Cardone, a white employee who had been hired into the FDNY in 2012. Bowman knew that she had little chance because the “fix was in.” Indeed, Cardone received the position, and her salary jumped from $73,943 in 2015 to $88,700 in 2016, an increase of 20%. Bowman, who has been an FDNY employee for 30 years, saw her salary increase from $64,463 to $66,075, an increase of 2.5%. This was just one example of the difficulties that Bowman faced in receiving a promotion. She applied unsuccessfully for at least seven promotions within FDNY between 2004 and the present. The only promotion that she received she did not apply for. In 2012 FDNY changed her title from Principal Administrative Associate to Administrative Manager because she passed a DCAS promotional test automatically entitling her to the Administrative Manager title, not as a result of a competitive posting. At that time, she received an approximately 8% salary increase that seems, in general, to be the limit for
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African American employees – but not white employees such as Cardone – receiving a promotion.
64. Plaintiff Debra Poe, like Bowman, is an Administrative Manager whose only promotion at FDNY came six years ago after she passed the DCAS promotional test (but received only a 4.5% pay boost). Poe is interested in an Executive Assistant position, and has the qualifications because most of the Executive Assistants are either Principal Administrative Associates or Administrative Managers. However, she knows that there is no need to apply because the positions are preselected if they are even posted.
65. Preordained promotions for white employees would occur even more frequently but for occasional concerted actions by disfavored black employees. In 2016, the FDNY posted a job announcement for “Deputy Director, Public Certification and Testing” in the unit of Bureau of Fire Prevention Director of Public Certification Steven Ertrachter. Plaintiff Brenda McKiver expressed interest in the position to Ertrachter, who responded, “Brenda, you can apply for it, but you’re not going to get it.” McKiver soon learned that the position had been created for a white employee, Maryana Chouchereba, that FDNY’s Assistant Commissioner for Finance & Budget Steve Rush had already approved a title change and salary increase for her, and that Chouchereba had her new business cards printed with the “Deputy Director, Public Certification and Testing” title even though no one had been interviewed for the position and no selection had been announced. McKiver complained to Acting Chief of Fire Prevention Thomas McKavanagh. Presumably as a result of the complaints of McKiver and other employees, the FDNY rescinded the job posting. But FDNY gave Chouchereba a consolation prize, an increase in her salary from $65,417 to $75,620, an increase of about 15.6%.
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66. Sometimes white employees are promoted without FDNY going through the charade of a posting. In 2014, white employee Natalia Zorina was promoted to a new supervisory position within the pension unit under Assistant Commissioner for Budget & Finance Rush. Employee Class member Debra Person had been responsible for many years for many of the duties of the supervisory position. However, Person never had an opportunity to apply for the new position because it was never posted. Zorina, whose salary already was about $3,600 greater than Person’s, received an 8% increase as a result of the promotion, further increasing the pay gap between them. Person raised the lack of a posting with Director Mary Basso, to which Basso responded, “Well, that’s my decision.”
67. On other occasions, FDNY denies African Americans promotions that reflect the job duties that they actually are performing. For example, in 2015 Employee Class member Carline Germain was promoted to a position with the office title of Executive Assistant for the Chief of Fire Prevention with the provisional civil service title of Administrative Manager. Within weeks of her appointment, she began assuming a plethora of responsibilities in addition to the duties in her job description. In mid-2016, her unit head, Ronald Spadafora, requested that her office title be changed from Executive Assistant to Director of Special Projects and Events (while retaining her Administrative Manager civil service title) and her salary increased to $95,000 from about $62,500 annually. Germain was informed that FDNY’s Assistant Commissioner for Finance & Budget Steve Rush denied the request without explanation. Several weeks later, her direct supervisor, Acting Chief of Fire Prevention Thomas McKavanagh, submitted a second request again asking that her office title be changed to “Director of Special Projects and Events,” and that her salary be increased to $87,000. Again, Rush denied the request without explanation. To date she has continued to perform a laundry list
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of responsibilities in addition to the duties anticipated when she was hired for the position. She still has not received a raise commensurate with her responsibilities.
68. FDNY even demotes African Americans in situations in which white employees are not. After working for seven years as a provisional Administrative Staff Analyst, Plaintiff Annette Richardson was demoted in April 2017 to an Associate Staff Analyst Level I and her salary was reduced by about $1,000. This reduction occurred even though her job duties remained the same and her performance was not deficient. FDNY could have given her another provisional title, as it did Jack Gridley, her predecessor as the head of the Human Resources Information Services function, but instead it chose to demote and reduce her compensation. E. FDNY’s History and Culture of In-Group Favoritism and Racial Discrimination
69. The underemployment of African Americans in Civilian jobs and the experiences of the Plaintiffs are consistent with FDNY’s long history of discriminating against African Americans as firefighters. During the past 50 years, two large, successful class action lawsuits against the City of New York have claimed that the FDNY has discriminated against African Americans and Hispanics in the hiring of firefighters. Although the lawsuits involved applicants for firefighter positions rather than Civilian employees and applicants, the lawsuits are relevant because of the resistance to integration exhibited by high levels of the FDNY.
70. Almost 45 years ago, in 1973, Judge Weinfeld of the Southern District of New York after a bench trial held that the City’s written and physical examinations for entry-level firefighters violated the Equal Protection Clause because of their discriminatory impact on African American and Hispanic applicants. See Vulcan Society of New York City Fire Dep’t, Inc. v. Civil Serv. Comm’n, 360 F. Supp. 1265, 1269 (S.D.N.Y.), aff’d in relevant part, 490 F.2d 387 (2d Cir. 1973). The Vulcan Society, the plaintiff, was established in 1940 by a group of Black firefighters to provide mutual support necessitated by the blatant segregation of the
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FDNY. The judge ordered that at least 25% of the new hires for firefighter positions be racial minorities, and ordered defendants to create a new examination that did not discriminate against African Americans and Hispanics. Vulcan Society of New York City Fire Dep’t, Inc. v. Civil Serv. Comm’n, 490 F.2d at 391.
71. The efforts to integrate the firefighters ended with the expiration of the Vulcan Society injunction:
The Vulcan Society injunction lapsed in 1977. That year, the City abandoned the 3:1 hiring ratio and instituted a hiring procedure that required applicants to take a cognitive examination and demonstrate minimum appointment requirements such as college credits, a driver’s license, and certified first responder with defibrillation training.
The subsequent history of the FDNY demonstrates that whatever practical effect Judge Weinfeld’s injunction may have had on minority hiring dissipated shortly after the injunction expired. Indeed, the history suggests that any such effect constituted little more than a brief departure from an otherwise relentless pattern. In 1963, ten years before the Vulcan Society litigation, 4.15% of all FDNY employees (including non-uniformed employees) were black. In 1971, that number was essentially unchanged. At the time of the Vulcan Society litigation, blacks and Hispanics constituted 32% of the City’s population, but only 5% of the Department. In 1990, almost two decades later, blacks made up 29% of the City's population, but only 4% of firefighters. In 2002, 25% of the City's residents were black, compared to only 2.6% of its firefighters. Between 1991 and 2007, black firefighters never constituted more than 3.9% of the force, and by the time this case was filed in 2007, the percentage of black firefighters in the FDNY had dropped to 3.4%. United States v. City of New York, 683 F. Supp. 2d 225, 241 (E.D.N.Y. 2010) (citations omitted).
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72. During the 30 years between 1977 and 2007, the employment of African American firefighters in the FDNY lagged far behind the employment of African Americans in other uniformed services in New York, such as the police. Id. at 233.
73. In response to the ongoing discrimination, the United States brought suit in May 2007 in the Eastern District of New York against the City under Title VII alleging that the City’s procedures for screening and selecting applicants for entry-level firefighter positions discriminated against black and Hispanic applicants under a disparate impact theory. United States v. City of New York, 683 F. Supp. 2d 225, 233 (E.D.N.Y. 2010) (summarizing procedural history). In September 2007, the court permitted the Vulcan Society and three individuals to intervene. The intervenors differed from the United States by claiming that defendants had engaged in a pattern or practice of intentional discrimination against black applicants. Id. at 234 (discussing procedural history).
74. In July 2009, Judge Garaufis granted the motion for summary judgment filed jointly by the United States and intervenors on their prima facie case of disparate impact and on the City's business necessity defense, thereby establishing that the City was liable for disparate impact discrimination under Title VII. United States v. City of New York, 637 F. Supp. 2d 77, 82-83, 132 (E.D.N.Y. 2009).
75. The next year, Judge Garaufis granted the intervenors’ motion for summary judgment on their pattern-or-practice claims as well. Although the Second Circuit later reversed and remanded, concluding that there were disputed issues as to some facts, it did not disturb Judge Garaufis’ finding that the Vulcan Society and other intervenors presented convincing evidence that the City, its agencies, and relevant decisionmakers have been aware that the FDNY’s hiring procedures discriminate against black applicants and have nonetheless refused to
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take steps to remedy this discrimination. Over several years, the EEPC [the City’s Equal Employment Practices Commission, an independent, non-mayoral entity charged with monitoring the compliance of City agencies with the City’s EEO policies] repeatedly informed Commissioner Scoppetta and his predecessor that the preliminary results of Exam 7029 revealed a wide disparity between the pass rates of white and black test-takers . . . . Neither Commissioner took corrective action, despite a municipal law requiring them to assess the discriminatory impact of the FDNY’s hiring practices and to explore viable alternatives. When the EEPC sent a report documenting the FDNY’s hiring disparities and compliance failures to Mayor Bloomberg, he responded that he was satisfied with the FDNY’s efforts. United States v. City of New York, 683 F. Supp. 2d at 250-51 (citations omitted).
76. Mayors as well as FDNY executives ignored the information provided by the EEPC discussed above, New York City’s Public Advocate and multiple other high-ranking government officials concerning racial discrimination during the hiring process and entreaties to these officials to treat black applicants equally. See United States v. City of New York, 2011 U.S. Dist. LEXIS 115074, at *16-21 (E.D.N.Y. Oct. 5, 2011). Judge Garaufis summarized that the FDNY had engaged in “34 years of intransigence and deliberate indifference, bookended by identical judicial declarations that the City’s hiring policies are illegal.” United States v. City of New York, 683 F. Supp. 2d at 262.
77. The intransigence and deliberate indifference continued even in 2010 while the litigation was ongoing. The City administered a new test afflicted with the same defects as the old one, and not surprisingly, it again had an adverse impact on African American and Latino applicants. Judge Garaufis gave the City five alternatives to modify the results so that its hiring more closely approximated the percentages of various minority groups taking the test. United
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States v. City of New York, No. 07-CV-2067 (NGG) (RLM), 2010 U.S. Dist. LEXIS 95083 (E.D.N.Y. Sept. 13, 2010). But instead of adopting one of these alternatives, the City stated that “[e]very one of the five proposals from which the Court [was] allowing the city to select involve[d] some form of race-based quota” and stated that it would not hire at all until it developed a new test. Hal Budnick, Smoking Out Racism in the FDNY: The Dwindling Use of Race-Conscious Hiring Remedies, 77 BROOK. L. REV. 1249, 1270 (2015), available at: http://brooklynworks.brooklaw.edu/blr/vol77/iss3/9.
78. The City appealed the grant of summary judgment on the disparate treatment claim, and the Second Circuit reversed in 2013 on the basis that the City had articulated a nondiscriminatory reason for its continued use of the tests that was sufficient to survive summary judgment. The appeals court remanded for a trial on the issue of whether the FDNY had intended to discriminate against African American and Latino applicants for firefighter positions. United States v. City of New York, 717 F.3d 72, 91 (2d Cir. 2013).
79. Two years later, in 2015, the parties entered into a settlement concerning both monetary relief and injunctive relief. The settlement concerning injunctive relief includes creation of the position of Chief Diversity and Inclusion Officer, discussed below. Under the settlement the percentage of black firefighters has increased, but Civilian employment was not the subject of the settlement and African American Civilian employment has not experienced similar gains.
80. Until the settlement of the United States v. City of New York litigation, FDNY leadership and rank-and-file were overwhelmingly of Irish and/or Italian descent, and had been for a century or more. Irish and Italian administrators and managers tended to select young adults whose parents, ancestors and/or neighbors had worked in the agency for employment in
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the “family” business. As a result, African Americans and other racial minorities were largely excluded, as even authors sympathetic to those Irish and Italian administrators and firefighters recognized. See Tom Deignan, “Is the FDNY Racist?”, at http://www.irishabroad.com/news/irishinamerica/columnists/Sidewalks/isthefdnyracist.asp; Terry Golway, “The Irish are forever in the ranks of New York’s bravest,” at http://belfastmediagroup.com/the-irish-are-forever-in-the-ranks-of-new-yorks-bravest; Niall O'Dowd, “End of an era of Irish domination in NY Fire Department,” at www.irishcentral.com/opinion/niallodowd/end-of-an-era-of-irish-domination-in-ny-firedepartment.
81. While Mayor de Blasio made some changes at the top of FDNY in response to the settlement of the United States v. City of New York litigation, including most notably the replacement of Salvatore Cassano with Daniel Nigro as the head of the FDNY in 2014, these changes have not significantly altered the makeup of the managers engaged in job selection decisions or the culture of in-group favoritism and discrimination against African Americans. Indeed, Nigro, who had retired from the FDNY in 2002, still consults Cassano concerning important decisions affecting the FDNY.
F. The Existence of a Small Group of Decision-Makers, Almost None of Whom Is African-American, Facilitates Racially Discriminatory Job Selection Decisions
82. The FDNY has approximately 30 bureaus and offices, most of them with multiple units. The bureaus and offices are typically headed by employees with titles such as assistant commissioner, deputy commissioner, or “chief” of something, such as chief of operations, chief fire marshal, or chief medical director. Many of the larger units within bureaus and offices also are headed by persons with these or other managerial titles. Employees who provide input into job selection and pay decisions, who are collectively called “Department Leaders,” are not
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included within the proposed class. Plaintiffs estimate that in 2016 there were no more than 50 Department Leaders in FDNY over departments with Civilian employees.
83. For example, the Bureau of Fire Prevention is by far FDNY’s largest bureau or office of Civilian Employees, with approximately 250 employees, including Plaintiff Brenda McKiver. It has over 40 units. But that does not mean that there were 40 Department Leaders in the BFP. Instead, only three BFP employees have had significant input into most or all hiring and promotion decisions within BFP: the recently deceased Chief of Fire Prevention (Ronald Spadafora), the Deputy Assistant Chief (Thomas McKavanagh), and the director of the Public Certification unit (Steven Ertrachter). Ertrachter has this role in hiring and promotion decisions for units other than Public Certification, even though, as allegations elsewhere in this Complaint make clear, he has engaged in actions and made decisions hostile to African American employees.
84. Throughout the period from 2004 until the present, very few of the Department Leaders have identified as African American. Almost all Department Leaders identify as nonHispanic white, although the head of the Bureau of Human Resources throughout this period, Donay Queenan, identifies as biracial.
85. As discussed above, before a Departmental Leader can create a new position or fill a vacant position, he or she requires approval from Queenan and Assistant Commissioner for Budget & Finance Rush.
86. Queenan, or somebody from the HR unit whom she designates, often participates in the evaluation of candidates (both internal and external) to fill the positions, including in any interviews of the candidates. The decision about which candidate to select usually involves the
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Departmental Leader, possibly other participants from the unit, and Queenan or another human resources employee whom she has designated.
87. To the extent that the salary or wage rate of the selected candidate is not dictated by a collective bargaining agreement, as discussed in Part VI below, Rush must approve that salary or wage rate.
88. No individual or unit oversees or reviews the decisions reached by these decisionmakers. A Personnel Review Board has reviewed the decisions concerning firefighters, but not the personnel decisions for Civilian employees.
89. In sum, between 2004 (and before) and the present, a small number of managers, almost all of whom identify as white, has made job selection decisions for Civilian positions at FDNY. Other than through retirements, these decision-makers have experienced little turnover since 2004. The decision-makers overwhelmingly have shared or acquiesced in a culture that favors Irish, Italian, and other employees of European origin and fosters resistance to and discrimination against African Americans.
G. FDNY’s Failure to Adopt or Systematically Implement Established Human Resources Techniques Also Facilitate Racially Discriminatory Job Selection Decisions
90. FDNY has failed to adopt or systematically implement at least four human resource practices that other organizations have widely adopted to try to ensure fair and nondiscriminatory decisions. The failure to adopt these practices has facilitated the pattern of discriminatory job selection decisions discussed above.
91. Performance Reviews. First, FDNY has failed to implement a rigorous performance appraisal system. As a result, the agency does not have a record of unbiased evaluations to review when an employee seeks advancement, making it easy to inject subjective and biased factors into the decision-making process.
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92. FDNY almost never conducted performance appraisals until approximately 2010, when the City’s Department of Citywide Administrative Services (“DCAS”), which is responsible for supporting City agencies’ workforce needs in recruiting, hiring and training City employees, insisted that FDNY adopt a program of annual performance appraisals.
93. Since then, FDNY has implemented a performance appraisal system, but since adoption it has been flawed in design in multiple ways, including but not limited to:
• FDNY does not require appraisals for administrators and managers, only nonmanagerial employees;
• FDNY does not provide training or meaningful guidance on how to write objectives for an employee for a year in a S.M.A.R.T. (specific, measurable, achievable, resultsfocused, and time-bound) manner so as to enhance objectivity in measurement;
• FDNY requires that an employee should receive one of five ratings on each objective (outstanding, very good, good, conditional, and unsatisfactory), but provides no clear means of distinguishing between these ratings. For example, FDNY explains that an outstanding performance “far exceeded the standards” while a very good performance “significantly exceeded the standards,” without explaining how to distinguish between “far” and “significantly” exceeded the standards;
• FDNY then completely undermines the rating process by providing that the overall rating should take into account “individual task ratings,” “priority of the different tasks,” “lateness patterns,” “absence patterns,” “interactions with co-workers,” “unanticipated projects that were undertaken,” and “contribution to unit or organization goals,” without providing any guidance as to how to evaluate or factor into the overall rating the last six of those factors; and
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• Except in rare instances, FDNY does not define how ratings should be factored into promotion decisions, if at all.
94. FDNY also has implemented the appraisal system in a flawed manner since 2010. Many, if not most, African Americans still do not receive annual performance evaluations. For example, Employee Class members Brendan Mahon and Frances Dempsey have not received performance evaluations in the past four years, while Yvonne Moore received an evaluation in 2015 – her only evaluation in the past four years – but only because she wrote it and her supervisor then signed it. And Plaintiff Brenda McKiver received an evaluation in 2016, the only one she has received for the past twenty years! FDNY simply does not monitor to ensure that managers engage in the mandated evaluation process. Without regular reviews for all employees, FDNY cannot effectively use reviews in job placement decisions, even if the review process was well designed.
95. FDNY’s failure to give annual performance evaluations to African American employees can severely impede those employees’ ability to advance or receive discretionary pay increases. For example, the collective bargaining agreement between the City and the Organization of Staff Analysts, the union representing Associate Staff Analysts such as Plaintiff Annette Richardson, and the collective bargaining agreement between the City and Communication Workers of America Local 1180, the union representing Clerical Associates, Principal Administrative Associates, and Administrative Managers such as Plaintiffs Deborah Bowman, Brenda McKiver, and Debra Poe, provide that discretionary increases are “limited to employees with above-average ratings on their annual performance evaluations. A copy of the performance evaluation must be submitted to the Department of Personnel and the Mayor's Office with the Monthly Planned Action Report.” Thus, an employee who does not receive an
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annual performance evaluation is not entitled to a discretionary increase no matter what his or her level of performance.
96. Posting of positions. DCAS requires FDNY to post all vacant non-managerial positions so that all interested employees and potential employees can submit a timely application. This is not peculiar to the City of New York; posting is generally accepted among human resource professionals, partly to avoid the bias and favoritism associated with a tap-onthe-shoulder system. But as the experiences of Plaintiffs and Class members show, FDNY frequently has not posted vacant, non-managerial positions (and never posts vacant managerial positions to which Class members may aspire) since 2004 (if not before) or has prepared and posted them in a manner that precludes a fair competition for vacant positions.
97. FDNY circumvents fair competition through posting of open positions in at least three ways. Sometimes it does not post vacant positions that it intends to fill and just taps a favored employee to fill them. Sometimes postings are a sham because managers have preselected the person to fill the position. And sometimes it decides to give a job permanently to an employee who has been filling a position provisionally on the excuse that the employee already knows how to perform the job duties. Almost inevitably, FDNY gives white employees – not African Americans – positions without requiring open competitions for them.
98. Reducing reasons for selections to writing. Human resource professionals also urge that decision-makers be required to reduce to writing the reasons for selecting a person to fill a vacant position. Although the stated reasons may be pretextual, the requirement of written reasons somewhat controls discriminatory decision-making when a rejected candidate has superior qualifications based on the factors that the decision-maker identifies as determinative. To the best of Plaintiffs’ knowledge, FDNY has not required decision-makers to reduce their
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reasons for selecting a particular candidate to writing at any time between 2004 (and before) and the present.
99. Monitoring of decisions for discrimination. A properly functioning human resources department monitors both individual job selection decisions and the statistical pattern of decisions over a period of time, such as annually. Because, to the best of Plaintiffs’ knowledge, FDNY does not require decision-makers to reduce their reasons for each decision to writing, it would be very difficult for the agency to review job selection decisions for possible illegal discrimination. As it is, FDNY makes no effort to review those decisions proactively, only after the fact if a passed-over employee chooses to complain internally or to initiate legal proceedings.
100. FDNY also does not monitor the statistical pattern of job selection decisions on an annual or other basis. In view of the judicial findings about the discrimination in which the FDNY engaged in hiring firefighters, the need for monitoring to prevent similar discrimination against African American and other minority employees in Civilian positions has been obvious. The failure to implement a rigorous monitoring program is, at best, reckless, and at worst evidence of tolerance of intentional discrimination at the highest ranks of FDNY.
101. For many years, FDNY has not cared enough about discrimination to create an office responsible to and capable of engaging in necessary monitoring. The Bureau of Human Resources in 2017 had approximately 70 employees, but half of them are engaged in investigations of outside applicants for employment and none of them engages in monitoring duties. Instead, in addition to investigations, HR employees are engaged in activities such as managing applications for leave, personnel files, and the human resources information systems.
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102. The Settlement Agreement that ended the United States v. City of New York litigation in 2015 provided for a new executive FDNY position, the Chief Diversity and Inclusion Officer (“CDIO”), to report directly to the Fire Commissioner, the head of the FDNY. 308 F.R.D. 53, 66-67 (E.D.N.Y. 2015). The Agreement provides that the CDIO will be responsible, among other duties, for “promoting diversity in the FDNY and expanding awareness of the value of full inclusion of firefighters from all racial and ethnic groups.” Id. The Agreement contemplates that the CDIO will, among other tasks, oversee the FDNY’s internal EEO Office, including identifying EEO resource and enforcement problems in order to improve the EEO system.
103. Judge Garaufis welcomed the creation of the CDIO position, explaining that enhanced minority recruitment is an appropriate remedy in this case; accordingly, efforts by a high-ranking FDNY official to encourage such enhanced recruitment would also be welcome. The court has previously discussed deficiencies of the FDNY's EEO Office, and required in the Modified Remedial Order that the City reassess the FDNY's EEO program in order to make substantial changes. Any help in that process by an FDNY executive tasked with promoting diversity would also be welcome. United States v. City of New York, 308 F.R.D. 53, 67 (E.D.N.Y. June 5, 2015) (citations omitted).
104. Fire Commissioner Nigro, under direction from the Mayor’s office, has selected two persons, first Pamela Lassiter and then Cecilia Loving, to fill the position of CDIO. Neither of them has the skills and/or experience to be effective in that position. When Lassiter was terminated after less than a year on the job, she had done nothing to monitor or address statistical disparities in the rates at which whites and African Americans had been selected to fill Civilian
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job positions, let alone racial disparities in compensation. Loving similarly has not attempted to monitor, let alone address, any racial disparities in Civilian job selections or compensation.
105. The FDNY’s EEO office, which reports to the CDIO, is no more capable of monitoring. In 2011, Judge Garaufis found that the FDNY's EEO Office was “woefully underfunded and fails to effectively carry out its responsibilities to ensure the FDNY's compliance with the EEO laws.” United States v. City of New York, 2011 U.S. Dist. LEXIS 115074, at *46 (E.D.N.Y. Oct. 5, 2011).
106. After giving testimony in the United States v. City of New York litigation that put the FDNY in an unfavorable light, Lyndelle Phillips, who had served as the Assistant Commissioner of EEO for four years, was demoted in 2011 and terminated in 2012. She never was allocated sufficient budget to monitor the job placement decisions throughout the FDNY. Phillips sued the City for racial discrimination and retaliation. Phillips was replaced by Margo Ferrandino, who quietly transferred to a different agency in early 2015. The position remained vacant until 2016, when Don Nguyen was appointed to the position.
107. As the New York Daily News reported, “The FDNY’s EEO office has always been a sore spot within the agency . . . . Many firefighters and EMS personnel — of all races and genders — have been frustrated by slow investigations and ongoing probes that don’t seem to yield clear conclusions . . . .”
108. The EEO unit’s budget has been increased under Nguyen, but its focus remains almost exclusively on investigating complaints rather than also monitoring to determine whether the statistical pattern of job placement and compensation decisions is adverse to African Americans or other protected minorities. Most of its approximately 14 employees in 2017 were
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lawyers engaged in investigations of individual discrimination allegations by employees and not on monitoring.
109. As a result of the long-standing failures in the mission and capabilities of the FDNY’s EEO office and of the failure of the CDIO to effect the types of changes contemplated by Judge Garaufis, FDNY has allowed the types of discrimination in job placement decisions discussed above to proceed unabated.
110. The City has not stepped into the breach caused by the inadequacies of FDNY’s Human Resources, CDIO, and EEO office to monitor FDNY personnel decisions for racial discrimination, even though it should know, not only from the United States v. New York litigation, but also from its own Workforce Profile reports, that racial employment numbers at FDNY are strikingly different than in the rest of its workforce.
VI. COMPENSATION DISPARITIES AND DISCRIMINATION 111. Employee Class members, as well as their counterparts of other races, are subject to collective bargaining agreements between the City and one of several different unions. These CBAs prescribe minimum salaries or wage rates for each job title covered by the CBA, and if the title has multiple levels, prescribe minimum salaries or wage rates for each level. In addition, the CBAs prescribe mandatory compensation increases, if any, each year for all employees. 112. As a result, wage or salary differentiation among employees with the same job title and level can occur at only two times: when an employee acquires a new job title (either because the person is hired by FDNY or when an existing FDNY employee changes job titles or levels) and FDNY agrees to pay him or her more than the minimum for the position and level; and when FDNY decides to give an employee an increase in pay that exceeds the raise mandated by the applicable CBA for all employees within that position and level.
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113. The allegations below address racial discrimination in compensation decisions both when FDNY establishes an employee’s pay when the employee is hired or changes job titles or levels and when FDNY makes discretionary pay increases over and above the minimum increases mandated by the applicable CBA.
114. The allegations below, and the proposed subclass asserting pay discrimination claims, are limited to employees in the Professional and Management Specialist job categories. The Administrator/Manager category is excluded from the proposed Employee class. The compensation subclass excludes employees in the Craft/Operator category and in the Fire Protection Inspector category because FDNY pays all or virtually all employees in the same title and level within those categories the same salary. To the extent that any racial discrimination in compensation exists for employees in those categories it is in allocation of overtime opportunities. Plaintiffs have not yet been able to analyze any such disparities and hence make no allegations about them at this time. The compensation subclass also excludes employees in the lower-paid, largely minority job categories of Paraprofessionals, Clericals and Clerical Supervisors, and Laborer/Transportation job categories because, while there is somewhat greater salary differentiation than in the Craft/Operator and Fire Protection Inspector categories, the differentiation is small.
115. The allegations below also do not include statistical analyses for all job titles in the Professionals and Management Specialists job categories. Plaintiffs have access to publicly available payroll data for the FDNY that shows, among other information, the names of employees, their civil service job positions, and their salaries each year from 2008 through 2016. The information does not, however, contain racial information for the employees. For that reason, Plaintiffs cannot perform agency-wide compensation analyses for all job titles in a job
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category comparable to the job selection analyses discussed above that show much lower rates of African American employment at FDNY than in other city agencies, especially in higher-paying job categories.
116. In lieu of such information, Plaintiffs have been able to obtain racial information for the great majority of employees in the job titles in which they have worked plus several other job titles. The compensation analyses show patterns of racial discrimination in compensation across the Professional and Management Specialist job categories. A list of job titles that Plaintiffs have placed into each of those two categories appears as Appendix A, with the exception of titles with fewer than three employees in 2016 and job titles in which there was little or no differentiation in salary in 2016. Plaintiffs have attempted to follow the DCAS classification scheme used in the Workforce Report but because the Report provides only generalized descriptions of each category and some examples of job titles within the category, there may be minor differences.
117. While Plaintiffs have not analyzed all job titles in the two job categories and have not identified the race of all employees in the analyzed job titles, the analyses are more than sufficient to make plausible the allegations of racial discrimination in the pay of persons in the three job categories. The number of employees in the job titles for which Plaintiffs have gathered racial information comprise at least half of the employees in both job categories. And in each of the titles, Plaintiffs were able to identify the race of the great majority of employees in 2016, the last year for which Plaintiffs had payroll information. As a result, the samples are sufficiently large for conclusions based on the analyses to at least rise to the level of plausibility.
118. In addition, the information that Plaintiffs have been able to obtain – both anecdotal and pay data – reflects pay discrimination against each of the Plaintiffs individually,
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including Brenda McKiver, the Plaintiff in the Clerical and Clerical Supervisor category, even though no allegations are presented about systemic pay discrimination in that job category. A. FDNY Systematically Underpays Plaintiffs and Class Members Across Three Job
Categories 1. FDNY Has Systematically Discriminated Against African American
Management Specialists in Its Compensation Decisions 119. Sample Size. According to the DCAS 2015 Workforce Report, FDNY employed 263 Management Specialists in 2015. Plaintiffs identify 298 Management Specialists in 2016 on Exhibit A. Plaintiffs believe that the differences in counts are the results of growth in the number of Management Specialists between 2015 and 2016 and possibly Plaintiffs’ inclusion of several job titles in the Management Specialist job category that DCAS did not include in that category for purposes of the Workforce Report. 120. Payroll data reflect that at the end of 2015, FDNY employed 76 Administrative Staff Analysts (“ASAs”) and 61 Administrative Managers (“AMs”) paid on a salary (as opposed to hourly) basis with salaries below $150,000. If all ASAs and AMs are included, the totals climb to 85 and 61, respectively, which is over 2/3 of the total of Management Specialists shown in the DCAS Workforce Report. 121. Administrative Staff Analysts. In 2016, the number of ASAs with salaries below $150,000 had increased to 81. Although the payroll data now available to Plaintiffs does not contain racial information, Plaintiffs were able to identify the race of all but seven. Of the 74 ASAs of known race, 13 were African-American that year and 61 were not. The mean salary of the 13 African-American ASAs that year was $89,811, while the median salary was $87,147. In comparison, the mean salary of the 61 non-African American ASAs was $94,019, and the median salary was $89,755. Thus, the mean salary of ASAs who were not African American was 4.7% higher than the mean salary of the African American ASAs.
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122. The average pay disparity was larger when comparing African American to white employees because the mean salary of the 43 white ASAs was $96,269, and the median was $93,657. Consequently, the mean salary of white ASAs was 7.2% higher than the mean salary of the African American ASAs.
123. Annette Richardson is the Plaintiff who is an ASA. She became an ASA in 2010. Before then, she had worked for the City’s Department of Investigation for over five years ending in June 2002, when she had taken a private job. Her salary at that company working in the computer incident management field had climbed to $82,000 before her job was relocated overseas. Upon losing that job, she successfully applied for a position as a management consultant with FDNY in 2006. But instead of giving her a salary commensurate with her pay in private industry, the Department of Human Resources (then called the Personnel Department) would only approve a salary of about $65,000 for her, a more than 20% pay cut. White employees accepting jobs with FDNY, regardless whether they were accepting employment or re-employment, were not asked to take such large pay cuts.
124. After about three years as a management consultant, Richardson successfully applied in 2009 for the position of Director of Human Resource Information Systems that had been occupied by Jack Gridley, a white male. Gridley’s salary had been about $103,000 annually, and he had the civil service job title of Administrative Community Relations Specialist. (Plaintiffs do not know whether DCAS classifies Administrative Community Relations Specialists as Management Specialists or Para Professionals.) In 2009, FDNY had seven Administrative Community Relations Specialists, with salaries ranging from about $83,000 to Ridley’s $103,000. Only one Administrative Community Relations Specialist was African American, and she had the second lowest salary among the seven employees, at about $87,000.
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125. Richardson asked for a salary comparable to Gridley’s, but FDNY was unwilling to give her such a large increase, and instead told her that she would not receive more than an 8% increase over her then salary of about $65,000 as a management consultant. FDNY also gave her a different civil service job title, Administrative Staff Analyst, than Ridley had held. Richardson acquiesced and assumed the ASA position with the office title of Director, HRIS at the starting salary of $69,971 dollars annually, 33% less than Gridley had been paid. Subsequently, Richardson learned that many persons who are promoted or hired to fill vacant positions receive salaries comparable to the people they replaced and are not limited to 8% salary increases.
126. In 2010, Richardson’s first full year as an ASA, FDNY had 60 ASAs with salaries below $150,000. Richardson’s salary of $69,971 was the fourth lowest among them. It was about $26,500 below the median salary for ASA’s of $96,514.
127. Richardson’s low salary relative to other ASAs also did not make sense given her responsibilities. As the director of HRIS between 2010 and the present, she has consistently managed several employees as well as the processes by which records for the over 16,000 employees have been maintained. According to FDNY’s directory for 2017, Richardson managed four employees. During her tenure, her staff, responsibilities, and job description have increased. Her duties are those of a database application manager, as she has day to day responsibility for the supervision of data input and output, generates customized reports and processing, manages databases, and grants access to those databases. These responsibilities make her position is comparable to computer software specialists in the Bureau of Technology and Development who manage databases, but she is not paid a comparable salary. But in addition, within the past year Richardson’s duties have expanded to also supervising the Absence
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Control Unit, with a regular staff of three employees, light duty staff of three more people, and one temporary position.
128. FDNY’s unwillingness to give Richardson a higher salary in 2010 was typical for the agency in its treatment of African American ASAs. Plaintiffs have been able to identify the race of 37 of the 63 salaried ASAs in 2010, all of whom were still employed by the agency in 2016. The average salary for the seven African American ASAs was $86,549, while the average salary for the non-African American ASAs was $93,445, a difference of almost $7,000.
129. By 2016, Richardson’s salary had increased to $80,826, an increase of about 15.5% from 2010. Even with that increase, it was still about $23,000 less than Gridley’s had been seven years before.
130. More important, African American ASAs on average received smaller pay increases between 2010 and 2016 than did non-African American ASAs. Between 2010 and 2016, the seven African American ASAs’ average salary increased by about 12.5% to $97,361. Over the same period, the 30 non-African American ASAs received average increases of about 16.8% to $109,178. Put another way, among persons who were ASAs between 2010 and 2016, the seven African-American ASAs’ salaries were about 8.0% lower than the other ASAs in 2010 and about 12.1% lower in 2016. The pay gap increased by about 50% over that period.
131. Thus, Richardson’s pay has been discriminatorily low every year from 2008 forward for two reasons. It was initially set at rates lower than the rates of persons doing similar work or with the same job title, and her pay increases did not match those of her peers.
132. Richardson’s pay also is low compared to other employees in FDNY’s Bureau of Human Resources. In 2016, FDNY paid her a salary of $80,826 to head the Human Resources Information Center and the Absence Control Unit, two of the units of the Bureau of Human
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Resources. Margaret Puppa, a white woman, is the second in command of a different HR unit, the Candidate Investigation Division, which investigates the background of candidates for positions. Puppa, who has the title of Administrative Investigator (which Plaintiffs also categorize as a Management Specialist), had a salary of $119,573 in 2016, almost 50% higher than Richardson’s. While the unit in which Puppa is a supervisor has more employees than does the unit that Richardson manages, a 50% pay differential between them is unjustifiable.
133. A second comparator for Richardson is Emily Rahimi, a white woman who also works in the Bureau of Human Resources. She was promoted in 2013 from the position of Associate Public Information Specialist in FDNY’s Public Information Office to an Administrative Manager position in Human Resources and received a $20,000 raise from about $58,000 to $78,000 (see below for a discussion of Administrative Manager compensation). Although her responsibility was only to prepare a periodic employee bulletin, she had no staff to manage, and is an Administrative Manager rather than an Administrative Staff Analyst (Administrative Staff Analysts on average receive higher salaries than Administrative Managers), Rahimi’s salary was about $8,000 more than Richardson’s in 2013. In 2015 Rahimi was reclassified as an Administrative Staff Analyst, although her job duties did not change. That title promotion resulted in a 12% increase in pay for her to almost $88,000, almost $12,000 more than Richardson. While Rahimi was receiving these pay increases, Richardson repeatedly requested raises from her manager, Donay Queenan, without success. Notably, in 2016, Richardson was given additional duties formerly performed by the Bureau of Technology & Development within FDNY, but again, her request to Queenan for a pay increase was not honored and did not even receive a formal response. In 2017, Rahimi’s pay was bumped again to over $92,000. Richardson finally received a raise on September 24, 2017, but that still leaves
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her pay well short of Rahimi’s. Two other non-African American Administrative Staff Analysts with no greater job duties than Richardson’s but considerably higher compensation are Aurora Gabriel-Perez, also in the Human Resources Department, and Mary McLaughlin in the Bureau of Health Services.
134. The pay history of white employee Timothy Keppler provides a striking contrast to Richardson’s. Keppler initially joined the FDNY as an Administrative Staff Analyst Trainee on May 26, 2015. His starting salary was $45,299. After only about a year, on June 13, 2016, FDNY promoted Mr. Keppler to the position of Administrative Staff Analyst with an over 25% raise in salary to $57,590. On June 25, 2017, Keppler was again promoted to the position of City Resident Scientist (a non-civil service title given to him by FDNY HR), and his salary skyrocketed from $57,950 to $90,425, although his civil service title and his essential job duties remained unchanged. Between May 2015 and June 2017 his salary virtually doubled, to a salary of about $10,000 more than Richardson’s salary.
135. Most black employees at FDNY, even those who have labored for 25 years or more, make a mere fraction of Keppler’s current $90,425 salary, regardless of work performance. No Plaintiff, and to the best of Plaintiffs’ knowledge no class member, has received close to a 100% increase over the course of two years, or even over the course of ten years.
136. Administrative Managers. In 2016, FDNY employed 59 Administrative Managers (“AMs”) (all had salaries below $150,000). Plaintiffs were able to identify the race of 55 of the 59 AMs that year. Of the 55 AMs of known race, 21 were African American and 34 were not. The mean salary of the 21 African American AMs that year was $69,883. By comparison, the mean salary of the 34 non-African American AMs was $73,967. The mean
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salary of AMs who were not African American thus was 5.8% higher than the mean salary of the African American AMs.
137. As with the ASAs, the average pay disparity was greater when limiting the comparison to white and black AMs. The mean salary of the 19 white AMs was $74,557; consequently, the mean salary of white AMs was 6.7% higher than the mean salary of the African American AMs.
138. Because averages for all persons with a given job title can be affected by new hires starting at lower salaries, it is more meaningful to compare persons with similar years of experience in the job. This type of comparison reveals that the starting salaries of Plaintiffs and other African-American AMs tend to be lower than their non-African American peers and that Plaintiffs and other African American AMs have received lower percentage increases than those accorded to the non-African American with the same AM job title.
139. To qualify as an AM, an employee or outside applicant must first pass a test administered by DCAS. Before 2010 FDNY had provisionally given several employees the title of AM. In 2010, two long-time FDNY employees who had passed the test became the first official AMs at FDNY. In 2011, 11 other employees who had passed the test became AMs, bringing the total number of AMs to 13. Plaintiff Debra Poe was one of the 11 added in 2011.
140. Of the 12 AMs in 2011, three were African American. Their mean salary as AMs in 2011 was $64,372, while the nine non-African Americans had a mean salary of $70,270. The average African American salary was almost $6,000 less than the average non-African American salary. Poe had the second lowest salary of the 12 AMs.
141. This disparity cannot be explained solely as a function of prior salary. Of the 13, seven employees received an increase upon their promotions of above 5% over their salary in the
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prior year; only one was African American. The other six received increases upon their promotions of less than 5% or no increase at all. Two of the six employees who received these small raises were African American, including Poe.
142. The next year, 2012, FDNY added 15 more AMs, including Plaintiff Deborah Bowman. That year the salary increases attendant on the promotions to the AM positions were far more standardized, almost all (including Bowman’s) between 6% and 10%. As discussed below, standardized percentage increases are not discriminatory as long as the prior rates were not discriminatory. If they were, then similar percentage increases can exacerbate the disparities. That happened here. African American AMs in 2012 were earning considerably less, on average, than non-African American AMs. And, as discussed below, the disparities have only grown worse.
143. Five of the 28 persons who became AMs in 2012 or before left FDNY’s employ before the end of 2016. Of the other 23, 14 received the base increases negotiated between their union and the City over the years, which cumulatively came to about 7.2%. Eight of those 14 persons were African American. The other nine received discretionary increases that brought their percentage increases into double figures. Four of those nine were African American.
144. While the difference between 8/14 (57%) and 4/9 (44%) is not large, the overall impact of the discretionary increases was substantial because three of the nine AMs received discretionary increases of 25% or more, and none of the three was African American.
145. These 25% or larger raises cannot be attributed to superior qualifications or job duties. White male Robert Rampino, for example, received the largest overall increase, from $87,588 in 2012 to $123,268 in 2016, a 41% jump over the four-year period. He has only a high school or GED diploma, without other academic credentials. Indeed, upon information and
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belief, Rampino became an AM because he was deemed unqualified for his prior job at FDNY. The 2017 directory does not reflect that any employees report to him, unlike Poe, who earns $55,000 less and has supervised one or two employees throughout her time as an Administrative Manager.
146. Plaintiff Bowman was one of the AMs who did not receive a discretionary increase between 2012 and 2016. As a result, her salary in 2016 was well below that of nonAfrican American comparators, such as Aurea Otero, a Hispanic AM. In 2016 Otero’s salary was $86,190, while Bowman’s was $66,075, a difference of over $20,000. During the five years between 2012 and 2016, Otero’s salaries cumulatively exceeded Bowman’s by about $95,000.
147. Bowman and Otero both work in the Bureau of Fiscal Services performing similar, related work. Bowman audits and assists in replenishing funds through the agency budgets by accruing and clearing expenditures through auditing procedures outlined in the NYC Comptroller’s instructions. She communicates with account payables representatives requesting pertinent documents to release these funds and restore budget money to the current fiscal year. If the funds are released, the money can be spent in the form of purchase orders. Otero prepares purchase orders for budgeted expenditures, requests increases and decreases in the amounts of the purchase orders, and communicates with other units about their purchase orders.
148. Plaintiff Poe did receive a small discretionary increase in 2016, but it brought her salary up to only $68,951. It was bestowed on her only because she agreed to take on additional responsibilities after another employee retired and nobody had been hired to take on his former duties.
149. Poe supervises the Civilian Leave unit of the Bureau of Human Resources. In 2016 she had one report, but at other times two employees have reported to her. The unit
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evaluates and processes under City guidelines requests for leave from Civilians. Non-African American AM Ireneo Almazan similarly supervises a small unit, with three employees, dealing with overtime inquiries of uniformed employees. His salary in 2016 was $75,398. Richard Kemp, also a non-African American AM, assists in running a larger unit (about ten employees), and was paid a salary of $72,824 in 2016. Other non-African American AMs have higher salaries even though they do not have any supervisory duties, including Otero ($86,190), Kathleen Clements ($84,834), Clarinda Matela ($83,948), and Iris Ramos ($79,198). In short, as a result of FDNY’s failure to pay Poe a non-discriminatory salary, her salary was less than other AMs performing similar duties.
150. The bottom line is that of the 23 employees in 2016 who had been AMs for at least four years, the average salary of the 12 African-American employees was $66,444 while the average salary of the 11 non-African American employees was $80,822. The non-African American long-term AMs were paid on average a whopping 22% more than their African American peers.
151. The pay of African Americans who have been AMs since 2012 or before lags not only behind their non-African American peers, but also behind the pay of white employees who became AMs after they did. For example, Poe and Rahimi (discussed above) were both Administrative Managers in Human Resources in 2014. Poe had been an AM for three years longer than Rahimi and supervised an employee, which Rahimi did not. Yet Rahimi’s salary in 2014 was $78,000, while Poe’s was $59,560, a difference of over $18,000.
152. ASAs and AMs, as well as other Management Specialists, work in most of FDNY’s bureaus and offices and perform a variety of duties. Poe, for example, is the Civilian Leave Supervisor within the Bureau of Human Resources, under Donay Queenan, while
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Bowman is an Accounts Representative within the Accounts Payable unit of the Bureau of Fiscal Services. Nonetheless, the compensation disparities between African American and other Management Specialists is systemic, as the information above indicates.
2. FDNY Has Systematically Discriminated Against African American Professionals in its Compensation Decisions
153. Sample Size. According to the DCAS 2015 Workforce Report, FDNY employed 183 persons in professional positions in 2015. The report identifies Computer Specialists as an example of a professional position.
154. Following DCAS guidance to the extent possible, Plaintiffs have included 12 job titles with 169 employees in 2016 with salaries below $150,000 in the Professional category. This includes 60 Computer Specialists and 32 Computer Associates. Employees in those two titles, therefore, constitute about 50% of the employees classified by DCAS as Professionals and more than 50% of the employees in the job titles that Plaintiffs have categorized as Professional.
155. Computer Specialists. Plaintiffs were able to identify the race of 51 of the 60 Computer Specialists in 2016, of whom six were African American and 45 were not. The mean salary of these six employees was $85,106 and the median was either $82,000 or $85,390, depending whether the third or fourth highest figure is used. The mean salary of the other 45 Computer Specialists was $93,272, over $8,000 more, and the median salary was $92,289.
156. This salary disparity in 2016 is largely a product of disparities in discretionary increases over time. Twenty-one of the 59 Computer Specialists had been employed in that job title since 2008, the earliest year for which Plaintiffs have payroll data. Plaintiffs were able to identify the race of 19 of the 21. Of the 19, seven received the minimum increases negotiated by their union totaling 11.6% (an average of about 1.4% per year), two received increases ranging between 15 and 19%, four received increases between 20 and 24%, three received increases
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between 25 and 29%, two received increases between 30 and 34%, and one received increases totaling over 35%.
157. Two Plaintiffs, Stephanie Thomas and Dino Riojas, were the only African Americans who served as salaried Computer Specialists throughout that nine-year period. They both received only the minimum 11.6% increase, while all but 5 of their 17 non-African American peers received much larger increases.
158. In fact, Riojas has not received a discretionary increase in his 35 years as a Computer Specialist at FDNY, while Thomas has not received a discretionary increase in her 30 years as a Computer Specialist.
159. FDNY’s unwillingness to award Riojas and Thomas discretionary raises is not for lack of accomplishments. Riojas for many years has managed the only complex mainframe computer system remaining in FDNY which, among other things, is integral to the building inspection process and generates $55 million in revenue annually for FDNY. His duties require him regularly to write new computer programs for the system, something no other FDNY employee is qualified to do. He also makes major contributions in other ways. During the FDNY migration from a Windows XP environment to the current Windows 7 environment in 2013, for example, Bureau of Technology and Development Systems Chief Information Officer (CIO) Joel Golub asked Riojas to ensure that data in over 2,800 Microsoft Access databases throughout FDNY were not lost or corrupted in the migration. Riojas became certified in Microsoft Access, performed this task without assistance, and successfully completed it on time. Both CIO Golub and Deputy Director of Programming Jason Cheng thanked him for a job well done. But FDNY did not reward Riojas monetarily.
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160. The impact of the lack of discretionary increases despite Riojas’s uniquely valuable skill set and accomplishments is seen by comparing him to other Computer Specialist, level 4 employees such as himself. There were five other level 4 Computer Specialists in 2016 who also were Computer Specialists in 2008, the first year for which Plaintiffs have payroll data. In 2008, Riojas received the fourth highest salary of the six. But over the years, three of the five non-African Americans received discretionary increases, including the two lowest paid in 2008, who over the eight-year period through 2016 saw their salaries increase by 36.6% and 34.6%, respectively, compared to Riojas’s 11.6% increase. As a result, Riojas is now the lowest paid Computer Specialist level 4. Linda Shang, one of those five other Computer Specialist level 4s who used to work under Riojas and whom Riojas trained, had a salary of $120,975 in 2016, which was 17.2% higher than Riojas’s 2016 salary of $103,209.
161. As alleged above in paragraph 59, Thomas has won awards for her work as a Computer Specialist, but not any discretionary increases. Because FDNY has not awarded her any promotions, even to a Computer Specialist 2 level, or discretionary increases, Thomas’s annual compensation is stuck at the same level as new Computer Specialists. In 2016, she was the lowest paid Computer Specialist among the 21 Computer Specialists who had that title also in 2008, and only one person within that peer group (none of whom was African American except for Riojas) was less than $3,000 above her salary level.
162. And as discussed above in paragraph 60, Thomas many years ago developed an expertise in project management. FDNY has only one other employee experienced in project management who comes from a computer background, Dean Eliades, although he lacks Thomas’s technical computer experience. FDNY hired Eliades in late 2015, but despite Thomas’s much greater tenure, experience, and technical qualifications, his salary of about
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$103,000 in 2016 exceeded hers by about $18,000. Two other FDNY project managers, both titled as Administrative Staff Analysts, may have some significant computer software or hardware knowledge. Darlene Hasselbring’s salary in 2016 was almost $124,000, while Katarina Synak’s (also newly hired by FDNY) is about $115,000. The disparities between their salaries and the salary of a 30-year highly credentialed employee such as Thomas are staggering.
163. The result of FDNY’s racial discrimination in compensation also can be seen in the average salaries in 2016 of African American and non-African American Computer Specialists who had been employed by FDNY since 2008, if not before. In addition to Riojas and Thomas, a third African American, Laura Pirtle-Morand, had worked as a Computer Specialist throughout this nine-year period but was not mentioned above because, for most of the time, she had worked on an hourly rather than salaried basis before becoming salaried in 2015. The average salary of these three Computer Specialists in 2016 was $92,433. The average salary of the 17 non-African Americans was $100,921.
164. Computer Associates. In 2016, the number of Computer Associates increased to 32, of whom 30 were paid on a salaried basis. Plaintiffs have been able to identify the race of 26 of these Computer Associates. Ten of these 26 Computer Specialists were African American. The mean salary of these ten employees was $68,235. The average salary of the other 16 Computer Associates of known race was $69,125, only about a thousand dollars more.
165. But what appears to be a relatively small racial disparity in salaries was almost completely a function of the large number of recent hires of Asian-Americans as computer associates. As beginning employees – and possibly because of racial discrimination against Asian-Americans – these new employees received low salaries, driving down the average salary for non-African American computer associates.
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166. Thus, looking only at employees who worked as computer associates during the entire 2008-16 period, the mean salary in 2016 of the six African Americans was $68,076, while the mean salary of the six non-African Americans was $77,081, a difference of about $9,000.
167. And if the one non-white employee among the six long-term non-African American computer associates is excluded, the mean salary in 2016 of the white computer associates was $78,590, about $10,000 more than the average salary of the long-term African American computer associates.
168. The racial disparity in the average salaries of persons who were Computer Associates throughout the 2008-16 period is primarily a function of FDNY paying African American Computer Associates much lower salaries than other Computer Associates in 2008. And of course, because African Americans start from lower base salaries than their comparators and because most employees receive the same percentage increase each year, African Americans receive lower dollar increases than their comparators and the dollar gap between them grows year after year.
4. FDNY Has Discriminated Against Brenda McKiver in its Compensation Decisions
169. According to the DCAS 2015 Workforce Report, FDNY employed 437 persons in clerical and clerical supervisory positions in 2015. The report also identifies Principal Administrative Associates (“PAAs”) as a clerical supervisory position. The payroll data indicates that these were 129 PAAs (including ten hourly) in 2015.
170. Racial disparities in pay are not as pronounced among PAAs as they are in job titles in higher paid job categories. Nonetheless, a racial disparity in compensation exists. Plaintiffs have been able to identify the race of 103 salaried PAAs in 2016: 47 African
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Americans and 56 non-African Americans. The average salary of African-American PAAs that year was $2,600 less than the average salary of the other PAAs: $57,540 to $60,140.
171. Plaintiff Brenda McKiver has suffered more pronounced pay discrimination than have African-American PAAs generally. McKiver is a 29-year FDNY employee who has worked as a PAA in the Bureau of Fire Prevention for about 23 years. During that time, she has never received a discretionary increase. As of 2016, she had the fifth lowest salary out of over 100 employees with the PAA job title. Of the four lower-paid PAAs, two were only hired into FDNY in 2016, and the other two became PAAs much more recently than McKiver. She was the lowest paid PAA with more than twenty years of tenure in the position in the entire FDNY.
172. The Bureau of Fire Prevention (“BFP”) is by far the largest bureau or office for Civilian Employees in FDNY. Recommendations about pay increases for most or all BFP employees – not including persons whose management level places them outside the class definition – are made by a white director, Steven Ertrachter.
173. Employee Class member Jo Blackwell is a 38-year FDNY employee who has worked as a clerical associate in the FDNY’s Bureau of Fire Prevention since 2000. Blackwell, like McKiver, has not received a discretionary increase during those 17 years. In response to Blackwell’s request for a raise, Ertrachter dismissively responded, “You don’t need money. What do you need money for?” McKiver, who heard this story from Blackwell, believes that this accurately reflects Ertrachter’s attitude toward African American employees seeking raises.
174. For many years, McKiver worked in Ertrachter’s unit of the Bureau of Fire Prevention, reviewing the paperwork, certifying, and maintaining the records for installers and servicers of fire extinguishers and smoke detectors and for companies providing exhaust head cleaning. In or about 201_, white employee Maryana Chouchereba and two assistants to
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Chouchereba took over those duties along with other duties not previously performed by McKiver. Chouchereba left FDNY in 2017, and the department gave McKiver’s former job duties to Jennifer McHugh, a white woman. While McHugh had some other duties, McKiver’s former job was her primary duty. McHugh’s job title was Community Coordinator, and her salary in 2016 was $56,229, about $7,000 more than McKiver’s $49,508.
175. Not long after Chouchereba and her assistants assumed McKiver’s job duties, McKiver started working in a different unit of the Bureau of Fire Prevention, although Ertrachter remained responsible for her in the salary setting process. In her new unit, McKiver and two other employees perform the identical duties. One of McKiver’s co-workers is African American while the other is white. The white employee, Tamara Casadona, is a PAA like McKiver, but in 2016 was paid $53,286, almost $4,000 more than McKiver. The disparity cannot be justified based on tenure with FDNY or time-in-position: McKiver started with FDNY in 1988 and became a PAA in 2000, while Casadona first became employed by FDNY – as a PAA – in 2011.
176. McKiver is not the only Plaintiff to suffer pay discrimination while a PAA. In 2007, Assistant Commissioner James Basile informed Plaintiff Deborah Bowman, who was then working as a PAA at the FDNY’s Fleet Services unit located in Long Island City, that he had requested a 4% discretionary salary increase for her and her co-workers. Bowman’s white coworkers subsequently received their discretionary salary increases, but she did not. Basile informed Bowman that he did not know why her salary increase was not approved by FDNY Headquarters, but later told her that her name had been included on the increase list by mistake. She then sent an email to Assistant Commissioner Rush asking for an explanation, but he never responded to her email. Bowman, unlike many PAAs and AMs, has a Bachelor’s degree. She
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also had worked for FDNY for about twenty years in 2007. Nonetheless, she was denied the raise that her peers received.
5. The Racial Discrimination in Compensation Began Long Before the Limitations Period
177. The limitations period goes back to December 2015. The data available to Plaintiffs goes back to 2008. As alleged above, the data reflect that African Americans with job titles within the challenged job categories were systematically paid less than non-African American employees in those job categories back to at least 2008.
178. Upon information and belief, racial discrimination in pay did not begin in January 2008. Plaintiffs have observed discrimination in pay that has affected them as well as other African American employees back to 2004, if not before. All the factors discussed in this Complaint that contribute to the pay discrimination, including FDNY’s culture, policies, and practices, have been in place since at least 2004. B. A Small Group of Decision-Makers Makes or Approves Discretionary Pay Decisions
at FDNY 179. The widespread pay discrimination against African Americans at FDNY in the Professional and Management Specialist categories is attributable to several factors. First, FDNY, through Assistant Commissioner for Budget & Finance Stephen Rush, has an announced policy of limiting salary increases upon hire or promotion to 8% over an employee’s prior salary. Even if this policy were applied evenhandedly, it would lock in preexisting racial pay disparities. However, Plaintiffs allege that this policy is enforced only against African-American employees, and they have provided examples above in which white employees received raises in excess of 8%. These exceptions exacerbate the discrimination caused by the 8% policy. 180. Second, the great majority of employees receive the same percentage increase each year. Such a system will not cause discrimination if the pay rates from the prior year are
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non-discriminatory, but if the rates in the prior year are discriminatory, such a system not only perpetuates the discrimination but also exacerbates it by magnifying differences in absolute terms. For example, if one employee has a salary of $90,000 in year 1 and another employee has a salary of $80,000 in that same year for doing the same work and they both receive a 3% increase, in year 2 the first employee will have a salary of $92,700 while the second employee will have a salary of $82,400. The pay gap will have grown by $300.
181. Third, FDNY does not have any persons or process to monitor discretionary increases for racial disparities. This permits non-African American employees to receive the great bulk of the discretionary increases, allowing the racial salary disparities to increase by more than would occur if all employees received only the minimum increases mandated by the applicable CBA.
182. Fourth, FDNY also does not monitor the salaries of employees in the same or similar positions to identify employees whose compensation appears to be higher or lower than their peers, regardless of how the disparities may have occurred in the past. Because FDNY does not centrally review salaries for disparities, it has no centralized process for increasing the salaries of poorly compensated employees.
183. FDNY’s failure to monitor compensation increases and levels puts it at odds with many, presumably most, large employers, which regularly audit compensation. An audit requires employers to compile and analyze personnel data on pay for employees doing the same work. As part of such audits, employers typically look back as far as necessary to determine whether any employees’ compensation is affected by past decisions or other practices that may affect current compensation. When problems are identified, these employers also typically adjust employee compensation so that past decisions are no longer a factor in current pay.
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184. FDNY also does not encourage managers, let alone have a policy requiring managers, to consider employees’ pay relative to their peers in making recommendations for discretionary increases. As a result, managers may recommend repeated discretionary increases for favored employees while never recommending increases for disfavored employees, as reflected in various of the paragraphs above.
185. Managerial discretion in recommending pay increases also is not constrained by performance reviews. As discussed above, FDNY does not insist on annual performance reviews or objective performance reviews for those employees whose performance is reviewed. It also does not formulaically tie performance ratings to pay increases – a practice that can limit managerial discretion.
186. The policies and practices identified above, including the lack of monitoring, allow FDNY to set both initial salaries and discretionary increases discriminatorily. As discussed above in the context of job selection decisions, FDNY has a decades-long history of in-group favoritism toward Irish, Italian, and other persons of European descent and hostility toward African Americans.
187. These biases do not have to affect a large number of current managers to have a major effect on compensation. A small group of almost exclusively white managers – high ranking officials in each bureau and office – have input into discretionary compensation decisions by recommending a wage rate or salary for a newly hired or promoted employee. However, ultimate decision-making power is concentrated in one person, Assistant Commissioner for Budget & Finance Stephen Rush. He typically decides whether to approve a salary or wage rate in excess of the minimum only after consulting with Queenan. As a result,
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Rush has pay-setting power, and Queenan has pay-setting influence, for all newly hired or promoted members of the proposed Classes.
188. Rush has a stated practice of not permitting increases in prior pay of over 8%, including when an employee is first hired by FDNY, receives a promotion, or receives a discretionary increase. However, this is not a stated policy or even a regular practice of FDNY itself/as a whole. Rather, Rush and Queenan wield the 8% limit like a cudgel against African Americans to hold down their increases, but frequently do not apply this supposed limit for white employees.
189. Similar concentration of decision-making occurs as to discretionary increases. These increases can be made twice a year. Rush establishes a discretionary increase budget for each bureau or office. The Department Leaders next make recommendations concerning increases for favored employees. The recommendations are then considered by an approximately four or five-person committee that includes Rush and Queenan. The FDNY bestows increases only on employees and in amounts approved by the committee.
190. Even if Rush, Queenan, members of the compensation committee, and bureau and office leaders are not now affected by biases in favor of white employees and/or against AfricanAmerican employees, the percentage raise system combined with the lack of monitoring of salaries still produce discriminatory results.
VII. CONTINUING VIOLATION AND DAMAGES 191. The culture, policies, and practices that have caused FDNY to underhire and underemploy African Americans for Civilian positions, confine them largely to lower paying Civilian jobs, and set their salaries or wage rates below the compensation of white Civilian employees have all been in place since 2004, if not before, and have existed on a continuous
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basis at all times since then. The culture, policy, and practices have resulted in systemic and continuing racial discrimination in hiring, advancement, and pay decisions against African American Civilian employees in every year since 2004.
192. FDNY’s underhiring and underemployment of African Americans, confining African Americans largely to lower paying Civilian jobs, and setting their salaries or wage rates below the compensation of white employees all have caused members of the two proposed Classes to receive far less in salaries and wages than they would have between 2004 (or earlier) and the present absent racial discrimination.
193. African Americans’ discriminatorily low salaries and wages also produce large damages in the form of lost overtime pay. Employees at FDNY earn prodigious amounts of overtime pay, often more than the amount of regular pay that they receive. Any salary or wage differential between two employees is increased, generally by 50%, at their overtime rates.
194. African Americans’ discriminatorily low salaries and wages also produce large damages in the form of diminished employee benefits. For example, the pension benefits to which a retiree is or may become eligible are, with certain limitations and variations, calculated by multiplying the number of years of credited service by the employee’s average salary in his or her final three years or highest three years of compensation. As a result, the higher an employee’s salary or wage rate during those three years, the greater the benefits that the employee may receive.
VIII. CLASS ALLEGATIONS 195. Plaintiffs bring this litigation on behalf of themselves and two classes: • All African Americans who have been employed in a Civilian full-time position in FDNY at any time between three years prior to the filing of this Complaint and the date a class
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is certified, unless throughout this period they (a) were in a job title classified by the City as an administrator or manager, or (b) had a salary of at least $150,000 per year during at least one year during the period (the “Employee Class”); and
• All African Americans who passed any applicable DCAS tests, possessed all other posted requirements for any posted FDNY Civilian vacancy, and applied and were rejected by FDNY for any such position at any time between three years prior to the filing of this Complaint and the date a class is certified unless they applied for a position (a) in a job title classified by the City as an administrator or manager (“Rejected Applicant Class”).
196. In addition, Plaintiffs bring this action on behalf of the following subclass of the Employee Class: All Employee Class members who have been employed in a Civilian full-time position classified as Professional or Management Specialist at any time between three years prior to the filing of this Complaint and the date a class is certified.
A. The Employee Class 197. The Employee Class is sufficiently numerous that joinder of all of its members in this lawsuit would be impractical. As alleged above, about 300 Civilian Employees in 2015 were African American. With turnover, there are probably more than 350 current and former FDNY employees in the Employee Class. 198. The Class’s claims raise numerous common questions of fact or law, including but not limited to: • Did FDNY promote Class members less frequently than similarly situated white peers? • Were the promotion decisions adverse to Class members at least in part because of in-group favoritism toward persons of Irish, Italian, or other European descent?
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• Were the promotion decisions adverse to Class members made by a small number of overwhelmingly white decision-makers, and if so, has that facilitated the discrimination?
• Has FDNY failed to adopt and/or systematically implement generally recognized HR practices, and if so, has that failure facilitated discrimination against Class Members in promotion decisions?
• Have FDNY executives and officials been aware that Class members receive fewer promotions than similarly situated whites and done nothing to rectify the disparities?
• Have the Mayor and other City executives and officials failed to exercise control over FDNY’s human resources and diversity practices despite myriad forms of notice of the racial discrimination at FDNY?
• Has FDNY had a continuing policy of discrimination against Class Members that entitles them to relief under NYCHRL for discriminatory promotion decisions back to 2004?
199. Plaintiffs Annette Richardson, Bowman, McKiver, Poe, Riojas, Thomas, and Watson are typical of other Class Members in that they have been Civilian employees of FDNY and have claims of promotion discrimination that they suffered as a result of the same factors that led to discrimination against Class Members. Their claims, like the claims of other Class Members, also give rise to NYCHRL liability under the continuing violations doctrine.
200. Plaintiffs Annette Richardson, Bowman, McKiver, Poe, Riojas, Thomas, and Watson are adequate representatives of the Employee Class. Their claims are typical of the claims of other Class Members; they have no conflicts with the Class Members; and they have retained experienced counsel capable of representing the Class.
201. Class certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because FDNY has acted or refused to act on grounds that apply generally to the Employee Class
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such as by allowing a small group of almost exclusively white managers to make discriminatory promotion decisions and failing to adopt and/or systematically implement recognized means of controlling managerial bias. These actions and failures make appropriate Class-wide injunctive relief, including but not limited to the measures identified in the Prayer for Relief below.
202. Class certification also is appropriate under Federal Rule of Civil Procedure 23(b)(3). The common issues identified above will predominate over any purely individual issues. Moreover, a class action is superior to other means for fairly and efficiently adjudicating the controversy. After all these years, agency-wide injunctive relief is needed to address the discrimination. That type of relief would be difficult if not impossible to obtain in a non-class suit brought by one or a small number of plaintiffs.
B. The Employee Compensation Subclass 203. The Employee Compensation Subclass is sufficiently numerous that joinder of all its members in this lawsuit would be impractical. As alleged above, the Subclass contained over 80 members in 2015. With turnover, there are probably more than 100 current and former FDNY employees in the Employee Compensation Subclass. 204. The Subclass’s claims raise numerous common questions of fact or law, including but not limited to: • Did FDNY pay Subclass members less than similarly situated white peers, including giving them fewer and smaller discretionary pay increases? • Were the compensation decisions adverse to Subclass members at least in part because of in-group favoritism toward persons of Irish, Italian, or other European descent?
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• Were the compensation decisions adverse to Subclass members made by a small number of overwhelmingly white decision-makers, and if so, has that facilitated the discrimination?
• Has FDNY failed to adopt and/or systematically implement generally recognized HR practices, and if so, has that failure facilitated discrimination against Subclass Members in compensation decisions?
• Have FDNY executives and officials been aware that Subclass members been paid less than similarly situated whites and done nothing to rectify the disparities?
• Have the Mayor and other City executives and officials failed to exercise control over FDNY’s human resources and diversity practices despite myriad forms of notice of the racial discrimination at FDNY?
• Has FDNY had a continuing policy of discrimination against Subclass Members that entitles them to relief under NYCHRL for discriminatory compensation decisions back to 2004?
205. Plaintiffs Annette Richardson, Bowman, Poe, Riojas, and Thomas are typical of other Subclass Members in that they have been Civilian employees of FDNY and have claims of pay discrimination that they suffered as a result of the same factors that led to discrimination against other Subclass Members. Their claims, like the claims of other Subclass Members, also give rise to liability under the continuing violations doctrine of the NYCHRL.
206. Plaintiffs Annette Richardson, Bowman, Poe, Riojas, and Thomas are adequate representatives of the Employee Compensation Subclass. Their claims are typical of the claims of other Subclass Members; they have no conflicts with the Subclass Members; and they have retained experienced counsel capable of representing the Subclass.
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207. Class certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because FDNY has acted or refused to act on grounds that apply generally to the Employee Compensation Subclass such as by allowing a small group of almost exclusively white managers to make discriminatory compensation decisions and failing to adopt and/or systematically implement recognized means of controlling managerial bias. These actions and failures make appropriate Subclass-wide injunctive relief, including but not limited to the measures identified in the Prayer for Relief below.
208. Class certification also is appropriate under Federal Rule of Civil Procedure 23(b)(3). The common issues identified above will predominate over any purely individual issues. Moreover, a class action is superior to other means for fairly and efficiently adjudicating the controversy. After all these years, agency-wide injunctive relief is needed to address the discrimination. That type of relief would be difficult if not impossible to obtain in a non-class suit brought by one or a small number of plaintiffs.
C. The Rejected Applicant Class 209. The Rejected Applicant Class is sufficiently numerous that joinder of all of its members in this lawsuit would be impractical. According to the 2015 Workforce Report, FDNY hired about 90 Civilian employees in 2015. If 2015 was typical, the agency hired about 270 Civilian employees over the past three years. Plaintiffs cannot know the number of rejected outside applicants who were African American until discovery commences, but almost certainly hundreds if not thousands of African Americans were among the rejected applicants who are members of the Rejected Applicant Class. 210. The claims of the Class raise numerous common questions of fact or law, including but not limited to:
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• Did FDNY hire Class members less frequently than similarly situated white peers, and less frequently than other City agencies hired employees into similar positions?
• Were the hiring decisions adverse to Class members at least in part because of ingroup favoritism toward persons of Irish, Italian, or other European descent?
• Were the hiring decisions adverse to Class members made by a small number of overwhelmingly white decision-makers, and if so, has that facilitated the discrimination?
• Has FDNY failed to adopt and/or systematically implement generally recognized HR practices, and if so, has that failure facilitated discrimination against Class Members in hiring decisions?
• Have FDNY executives and officials been aware that Class members are hired less frequently than similarly situated whites and done nothing to rectify the disparities?
• Have the Mayor and other City executives and officials failed to exercise control over FDNY’s human resources and diversity practices despite myriad forms of notice of the racial discrimination at FDNY?
211. Plaintiff Erica Richardson is typical of other Class Members in that she applied and was rejected for one or more Civilian positions at FDNY for which she was qualified as a result of the same factors that led to discrimination against other Class Members.
212. Plaintiff Erica Richardson is an adequate representative of the Rejected Applicant Class. Her claims are typical of the claims of other Class Members; she has no conflicts with the Class Members; and she has retained experienced counsel capable of representing the Class.
213. Class certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because FDNY has acted or refused to act on grounds that apply generally to the Rejected Applicant Class, such as by allowing a small group of almost exclusively white managers to
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make discriminatory hiring decisions and failing to adopt and/or systematically implement recognized means of controlling managerial bias. These actions and failures make appropriate Class-wide injunctive relief, including but not limited to the measures identified in the Prayer for Relief below.
214. Class certification also is appropriate under Federal Rule of Civil Procedure 23(b)(3). The common issues identified above will predominate over any purely individual issues. Moreover, a class action is superior to other means for fairly and efficiently adjudicating the controversy. After all these years, agency-wide injunctive relief is needed to address the discrimination. That type of relief would be difficult if not impossible to obtain in a non-class suit brought by one or a small number of plaintiffs.
IX. COUNTS A. Count One: 42 U.S.C. §§ 1981, 1983 215. Plaintiffs reallege each of the paragraphs above as if they were expressly set out in this paragraph. 216. The City, through its agency the FDNY, has impaired under color of state and municipal law the right of Plaintiffs and members of the proposed Classes and Subclass to make and enforce contracts of employment, which under 42 U.S.C. § 1981 shall be the same as the right of white persons, in that the FDNY has (a) discriminatorily failed to select AfricanAmerican outside and internal candidates to fill vacant positions while instead selecting white candidates with lesser qualifications, and (b) paid African-American employees less than, and given African-American employees smaller pay increases than, similarly situated white employees.
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217. In making its job selection (hiring and promotion) and compensation decisions, FDNY and its officials and managers have acted under color of the statutes, ordinances, regulations, customs, and usages, of the laws of the State of New York which, among other things, delegate authority over these decisions to the City of New York.
218. The City, through its agency the FDNY, has subjected the Plaintiffs and the members of the proposed Classes and Subclass to the deprivation of the rights, privileges, or immunities secured by 42 U.S.C. § 1981, as set forth above.
219. The discrimination in job selection and compensation decisions against Plaintiffs and members of the proposed Classes and Subclass have been performed pursuant to a policy or custom within FDNY entitling Plaintiffs and the proposed Class and Subclass members to relief under 42 U.S.C. § 1983. The discrimination has been so persistent or widespread to constitute a custom or usage with the force of law. It also has been so manifest as to imply the constructive acquiescence of senior policy-making officials within FDNY and the City Government. The City’s failure to train and supervise its employees adequately has displayed a deliberate indifference to the constitutional rights of African-American job applicants and employees at FDNY.
220. Plaintiffs and members of the proposed Classes and Subclass have been damaged by the discrimination in job selection and compensation decisions since 2004 (if not before) or such later date as they were first rejected for employment by FDNY or first became employed by FDNY. This damage takes the form of lost pay and lost employee benefits for members of the Rejected Applicant Class, and of lost pay and diminishment of those employee benefits tied to pay levels for members of the Employee Class and Employee Compensation Subclass. Class and Subclass Members also have suffered damage in the form of mental pain and suffering as
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they have experienced stagnation in job position and compensation while watching equally or lesser qualified white employees rocket past them in position, compensation, or both. Members of both Classes and the Subclass will be damaged in the future by the discrimination unless injunctive relief is entered.
B. Count Two: New York City Human Rights Law 221. Plaintiffs reallege each of the paragraphs above as if they were expressly set out in this paragraph. 222. The City, through its Agency FDNY, has discriminated against the Plaintiffs and Class and Subclass Members in its job selection and compensation decisions because of their race in violation of NYC Administrative Code § 8-107.1(a)(3). 223. Through (a) FDNY’s failure to adopt or implement systematically widely accepted human resources practices that reduce the opportunity for discrimination, (b) FDNY’s culture of in-group favoritism, (c) FDNY’s assignment of job selection and compensation decisions to a very small group of almost exclusively white decision-makers who share in the culture of in-group favoritism, (d) use of percentage increases in compensation without any effort to audit and adjust salary rates to eliminate the effects of past discrimination in compensation decisions, and (e) the City’s failure to exercise control over FDNY’s human resources and diversity practices and failure to monitor and correct for current discrimination and the present effects of past discrimination, the City has engaged in a pattern or practice of discrimination in hiring, promotion, and compensation decisions against Plaintiffs and the Class and Subclass Members. 224. FDNY’s failure to adopt or implement systematically widely accepted human resources practices that reduce the opportunity for discrimination and its assignment of job
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selection and compensation decisions to a very small group of almost exclusively white decisionmakers, and the City’s failure to exercise control over FDNY’s human resources and diversity practices have had a disparate impact against Plaintiffs and the Class and Subclass Members.
225. The policy or custom of racial discrimination within FDNY in job selection and compensation decisions has been continuing since 2004.
226. Plaintiffs and the Class and Subclass Members have been damaged by the discrimination in job selection and compensation decisions since 2004 or such later date as they were first rejected for employment by FDNY or first became employed by FDNY. This damage takes the form of lost pay and lost employee benefits for members of the Rejected Applicant Class, and lost pay and diminishment of those employee benefits tied to pay levels for members of the Employee Class and Subclass. Class and Subclass Members also have suffered damage in the form of mental pain and suffering as they have experienced stagnation in job position and compensation while watching equally or lesser qualified white employees rocket past them in position, compensation, or both. Class and Subclass Members will be damaged in the future by the discrimination unless injunctive relief is entered.
X. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court enter a judgment against Defendant and in favor of Plaintiffs and the Class and Subclass Members and award the following relief: A. An order: certifying this action as a class action on behalf of the proposed Classes and Subclass pursuant to Federal Rule of Civil Procedure 23; declaring Plaintiffs Annette Richardson, Bowman, McKiver, Poe, Riojas, Thomas, and Watson as representatives of the Employee Class, Plaintiffs Richardson, Bowman, Poe, Riojas, and Thomas as representatives of
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the Employee Compensation Subclass, and Plaintiff Erica Richardson as the representative of the Rejected Class; and declaring Plaintiffs’ counsel as counsel for each Class and Subclass;
B. An order granting Plaintiffs and members of the Classes and Subclass actual damages for violations of 42 U.S.C. § 1981 and 1983 and of the NYCHRL, including but not limited to back pay, front pay, and other forms of lost compensation such as the value of lost employee benefits;
C. An order granting Plaintiffs and the members of the Classes and Subclass costs of suit, reasonable attorney’s fees and expenses;
D. An order granting Plaintiffs and the Classes and Subclass appropriate injunctive and declaratory relief for a period of time to be determined by the Court but not less than seven years, including but not limited to:
• Appointing an outside monitor going forward for five years or more to review individual and overall job selection and compensation decisions to detect individual instances and patterns of racial discrimination and to train appropriate employees of the FDNY on how to perform such monitoring after the term of the outside monitor ends;
• Requiring FDNY to create plans to increase the representation of African Americans in Civilian positions in which African Americans are underrepresented, which plans shall be reviewed and approved by the outside monitor and ultimately the Court, and giving the outside monitor access to all necessary information to monitor FDNY’s actions to insure that FDNY complies with the plans;
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compensation of Civilian employees and adjust the compensation of any African American employees determined to be underpaid; and • Requiring FDNY to review its Human Resources practices identified in this Complaint and modify them as the outside monitor and ultimately the Court deem appropriate. E. An order granting Plaintiffs and the Class and Subclass members such other, further and different relief as the nature of the case may require or as may be determined to be just, equitable and proper by this Court.
XI. DEMAND FOR A JURY TRIAL Plaintiffs demand a jury trial on all issues triable as of right by a jury.
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Respectfully submitted,

___/s Michael Lieder______
VALLI KANE & VAGNINI, PLLC
Rob J. Valli, Jr. Sara Wyn Kane Valli Kane & Vagnini LLP 600 Old Country Road, Suite 519 Garden City, New York 11530 Telephone: (516) 203-7180 Facsimile: (516)706-0248 rvalli@vkvlawyers.com skane@vkvlawyers.com
MEHRI & SKALET PLLC
Cyrus Mehri U.W. Clemon (pro hac vice pending) Michael D. Lieder Mehri & Skalet, PLLC 1250 Connecticut Ave., NW, Suite 300 Washington, DC 20036 Telephone: (202) 822-5100 Facsimile: (202) 822-4997 cmehri@findjustice.com jclemon@findjustice.com mlieder@findjustice.com

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ANNETTE RICHARDSON, et al., on behalf of themselves and all others similarly situated,
Plaintiffs,
-v-
CITY OF NEW YORK,
Defendant.

17-CV-9447 (JPO) OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Six African American Fire Department of New York (“FDNY”) employees (“Plaintiffs”) have filed a putative class action complaint against the City of New York (“the City”) on behalf of themselves and certain other African American FDNY employees, alleging that FDNY’s hiring, job-placement, and compensation practices discriminate against African Americans in violation of 42 U.S.C. §§ 1981 and 1983 (“Section 1981” and “Section 1983”) and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq. The City has moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cognizable legal claim, and has also moved for an order staying discovery pursuant to Federal Rule of Civil Procedure 26(c). (Dkt. No. 11.) For the reasons that follow, the motion to dismiss is granted in part and denied in part, and the motion to stay discovery is denied as moot. I. Background
A. Factual Background The following facts are drawn from the complaint and are assumed to be true for purposes of resolving the City’s motion to dismiss.

1

FDNY’s roughly 16,400-person workforce is made up of three types of employee:
(1) firefighters and firefighter supervisors, who together make up about two-thirds of the
workforce, (2) emergency medical services (“EMS”) personnel, who make up about one-fifth of
the workforce, and (3) non-uniformed “civilian” personnel, who make up the remainder.1 (Dkt.
No. 4 (“Compl.”) ¶¶ 17–18, 20, 23.) According to the complaint, discrimination against African
Americans has affected hiring, job-placement, and compensation decisions within all three
categories, but the present suit involves only civilian employees.2 (Compl. ¶¶ 19, 21–23.) At the
heart of Plaintiffs’ allegations lies a supposed “pattern or practice of systemic, continuous, and
intentional discrimination” on the part of FDNY that, Plaintiffs contend, has produced
observable racial disparities in the “hiring, placement, advancement, and compensation” of
civilian employees “[f]or well over a century.” (Compl. ¶ 1.)
1. The Underlying Disparities
The complaint’s discrimination claims center on three alleged disparities: (1) FDNY
hires disproportionately few African Americans into its civilian staff in the first place; (2) those
1 All employment figures reported in this opinion derive from fiscal year 2015 unless otherwise noted, but the complaint alleges that these figures are representative for every year from at least 2004 to the present. (Compl. ¶ 43.)
2 The complaint also purports to bring discrimination claims on behalf of a class of EMS employees, but the only named plaintiff representing this class voluntarily dismissed her claims without prejudice on January 9, 2018. (Compl. ¶¶ 8–14; Dkt. No. 7.) In the nearly nine months since then, Plaintiffs have neither moved to amend the complaint nor sought to substitute another named plaintiff to represent the EMS class. Further, in opposing the City’s motion to dismiss, Plaintiffs make no mention whatsoever of their EMS class claims, asserting only that “FDNY has systematically discriminated against African American civilian employees and applicants.” (Dkt. No. 17 at 1 (emphasis added).) To the extent that Plaintiffs have not abandoned their EMS class claims, those claims are dismissed as moot. Cf. Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir. 2006) (holding that “a dismissal of the named plaintiffs’ claims” prior to class certification “should end the case” absent a prompt effort to substitute a different named plaintiff); Jobie O. v. Spitzer, No. 03 Civ. 833, 2007 WL 4302921, at *4 (S.D.N.Y. Dec. 5, 2007) (“As a general rule, if the named plaintiff’s claims become moot prior to class certification, the entire action becomes moot and the case is dismissed.”).
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African Americans who are hired are disproportionately hired into, and made to remain within, lower-paying job positions; and (3) among those employees who occupy identical job positions, African Americans receive disproportionately low compensation. (Compl. ¶ 2.)
i. Disparities in Hiring To be eligible for certain job positions at City agencies—including most civilian positions at FDNY—applicants must usually pass a position-specific competitive exam administered by the City’s Department of Citywide Administrative Services (“DCAS”). (Compl. ¶¶ 25, 28.) Following each exam, DCAS creates an “eligible to hire” list of the passing applicants, ranked by score. (Compl. ¶ 27.) When an agency wishes to fill an open position, it interviews applicants from the associated “eligible to hire” list in order of their rank. (Id.) For most civilian positions, FDNY hires off the same “eligible to hire” lists that other City agencies use when filling comparable positions. (Compl. ¶ 28.) But although FDNY and other City agencies utilize identical ranked lists, five out of FDNY’s seven civilian job categories contain a noticeably lower proportion of African American employees than do the corresponding categories viewed across all City agencies. (Compl. ¶¶ 30, 40.) For example, 27% of City agencies’ administrators and managers—but only 18% of FDNY’s—are African American. (Compl. ¶ 40.) Similarly, 28% of City agencies’ designated “professionals” are African American, compared to only 14% of FDNY’s. (Id.) All told, only 22% of FDNY’s civilian employees are African American, as against 33% of similarly titled employees across all City agencies. (Id.)
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ii. Disparities in Job Placement According to the complaint, this comparative dearth of African American employees is, as a result of FDNY’s initial job-placement and promotion decisions, particularly pronounced within the highest-paid civilian job categories. There are only two civilian job categories in which African American workers make up a greater proportion of the workforce at FDNY than they do in City agencies generally, and those categories are two of the three lowest-paying. (Compl. ¶¶ 23, 40.) For example, African Americans’ representation at FDNY among laborers and transportation workers—whose annual salary averages $52,709—exceeds their representation in similar positions at City agencies overall by 3%. (Id.) In contrast, among administrators and managers, whose annual salary averages $117,831, African American representation at FDNY undershoots African American representation at City agencies overall by 33%. (Id.) All in all, African American representation across the four highest-paid civilian job categories at FDNY is 43% lower than it is across those categories in City agencies overall, whereas African American representation across the three lowest-paid civilian job categories at FDNY is only 15% lower than it is across those categories in City agencies overall.3 (Compl. ¶ 45.) To illustrate these statistical disparities, the complaint describes the experiences of a few individual FDNY employees. For example, Yvonne Moore, who is African American, and Marina Ryappo, who is white, were hired around the same time to perform similar civilian job duties. (Compl. ¶ 52.) Ryappo, however, was given a job title corresponding to an annual salary 25% greater than Moore’s, even though Moore has proven to be the more capable employee.
3 The complaint also briefly alleges that even within any given civilian job category at FDNY, African American representation tends to be concentrated in that category’s lowestpaying jobs. (Compl. ¶¶ 46–47.)
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(Id.) Similarly, Liza Horsley, who is African American, started as a civilian employee in 1998 but in 2014 was denied a higher-paying position for which she was qualified; the position instead went to a white woman who had thirteen years’ less experience at FDNY than Horsley did. (Compl. ¶ 54.) These and other instances, the complaint alleges, exemplify FDNY’s practice of concentrating its African American civilian employees in lower-paying positions.
iii. Disparities in Compensation Within a Given Job Position Finally, the complaint alleges that even within a single job position at FDNY, African American employees generally receive lower pay than white employees do. (Compl. ¶¶ 111, 116–17.) While collective-bargaining agreements (“CBAs”) dictate the minimum salary or wage rate for most civilian job positions at FDNY, employees are eligible for discretionary pay increases that exceed the minimum required by the CBAs. (Compl. ¶¶ 106–07.) According to the complaint, FDNY awards large discretionary raises disproportionately to white employees, with the result that African American workers end up receiving lower pay than their similarly situated white peers. (Compl. ¶ 110.) As evidence of this disparity, the complaint points out that in 2016 the median pay of the twenty-five Administrative Staff Analysts known to be white was around $125,000, whereas the median pay of the seven Administrative Staff Analysts known to be African American was around $87,000. (Compl. ¶ 112.) Similarly, in 2016, the median pay of the thirteen Computer Associates known to be white was around $74,605, whereas the median pay of the seven Computer Associates known to be African American was around $62,490. (Compl. ¶ 115.) Here too, the complaint supplements its quantitative data with anecdotal evidence. For example, when Annette Richardson, an African American employee, was promoted to fill a position that had previously been occupied by a white male, she received a starting salary 33%
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lower than the salary her predecessor had been paid. (Compl. ¶ 118.) And, to take another example, FDNY’s only two African American Computer Specialists, Stephanie Thomas and Dino Riojas, have received no discretionary pay increases in their (respectively) twenty-nine and thirty-five years on the job, despite watching their colleagues enjoy raises as high as 25%.4 (Compl. ¶¶ 120–21.)
According to the complaint, “it is reasonable to believe” based on the quantitative and anecdotal evidence “that statistically significant disparities exist between the compensation of white and African American employees in many job titles.” (Compl. ¶ 116.)
2. The Alleged Causes of These Disparities The complaint attributes these disparities to the combination of four factors. First, the complaint alleges that FDNY’s human resources practices are inadequate to identify and prevent racially motivated job-placement and compensation decisions. (Compl. ¶ 3.) In particular, the complaint identifies four ways in which FDNY’s practices have allegedly fallen short: (1) prior to 2010, FDNY failed to conduct performance appraisals that could form the basis for objective promotion and compensation decisions and, even after FDNY initiated performance reviews in 2010 at the behest of DCAS, the reviews have been inconsistently administered and insufficiently objective (Compl. ¶¶ 87–89, 128); (2) FDNY often forestalls open competition for vacant positions by failing to post available positions publicly or by preselecting an employee to fill a publicly posted position (Compl. ¶¶ 91–92); (3) FDNY produces no written rationales for its job-placement decisions (Compl. ¶ 93); and (4) FDNY lacks a
4 Thomas and Riojas, along with their colleagues, have received the 7.2% raises mandated by their CBA. (Compl. ¶¶ 120–21.)
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mechanism for monitoring job-placement and compensation decisions for racial disparities5 (Compl. ¶¶ 94–95, 128).
Second, the complaint alleges that FDNY is characterized by “a culture of in-group favoritism under which white decision-makers favor people with similar backgrounds to themselves.” (Compl. ¶ 3.) In support of this claim, the complaint points to two previous classaction lawsuits involving FDNY’s hiring practices for filling firefighter positions. (Compl. ¶ 65– 66, 69.) The first of these lawsuits concluded in 1973 with a remedial injunction based on a judicial determination that these practices had an impermissible disparate impact on African American applicants. See Vulcan Soc’y of the N.Y.C. Fire Dep’t, Inc. v. Civil Serv. Comm’n of the City of N.Y., 360 F. Supp. 1265 (S.D.N.Y. 1973), aff’d in relevant part, 490 F.2d 387 (2d Cir.). By 2007, though—thirty years after that injunction lapsed—African American representation among FDNY’s firefighters was no greater than it had been when the 1970s lawsuit was filed. (Compl. ¶ 67.) This stagnation prompted a second litigation, which included a charge of intentional racial discrimination. (Compl. ¶ 69.) This second lawsuit ended in a settlement rather than a final merits judgment (Compl. ¶ 75), but the district judge presiding over the case had, prior to the settlement, highlighted the existence of “convincing evidence that the City, its agencies, and relevant decisionmakers have been aware that the FDNY’s hiring procedures discriminate against black [firefighter] applicants and have nonetheless refused to take steps to remedy this discrimination,” see United States v. City of New York (“City of New
5 In 2015, FDNY created a new executive position, the Chief Diversity and Inclusion Officer (“CDIO”), responsible for promoting diversity at FDNY (Compl. ¶ 97), but the complaint alleges that the position has consistently been filled by people who lack the “skills and/or experience to be effective in that position” (Compl. ¶ 99). Likewise, the complaint alleges that FDNY’s Equal Employment Opportunity office, which reports to the CDIO, has been poorly funded and is principally concerned with investigating one-off complaints rather than engaging in systemic review of FDNY’s practices. (Comp. ¶¶ 100–03.)
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York I”), 683 F. Supp. 2d 225, 250 (E.D.N.Y. 2010), vacated, 717 F.3d 72 (2d Cir. 2013). Although these two lawsuits involved firefighter applicants, not civilian employees, the complaint here contends that they show “the resistance to integration exhibited by high levels of the FDNY.” (Compl. ¶ 65.)
Third, the complaint alleges that most job-placement and compensation decisions for FDNY’s civilian employees require approval by “a very small group of decision-makers.” (Compl. ¶ 3.) As of 2016, there were only about 50–100 department heads within FDNY who provided input into hiring, promotion, and compensation decisions involving civilian employees, and nearly all of these department heads identify as white. (Compl. ¶¶ 78–79.) Further channeling FDNY’s employment decisions, any department head must secure approval from the Bureau of Human Resources head, Donay Queenan, and the Assistant Commissioner for Finance & Budget, Steve Rush, before creating a new position or filling a vacant position. (Compl. ¶ 80.) Moreover, Rush—typically in consultation with Queenan—must approve any salary or wage rate that exceeds the minimum required by an employee’s CBA. (Compl. ¶¶ 82, 108, 127.) According to the complaint, Rush claims that he will not authorize discretionary pay raises that exceed 8%, but although he and Queenan “wield the 8% limit like a cudgel against African Americans to hold down their increases, [they] frequently ignore the supposed limit for white employees.” (Compl. ¶ 110.)
The fourth and final factor that the complaint identifies as a contributor to racial disparity is the failure of the Mayor’s office or other City agencies to “exercise control over FDNY’s human resources and diversity practices” despite widespread publicity of persistent racial disparities among FDNY’s civilian employees. (Compl. ¶ 3.)
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B. Procedural Background On December 1, 2017, Plaintiffs Annette Richardson, Deborah Bowman, Liza Horsley, Debra Poe, Dino Riojas, and Stephanie Thomas—all African American civilian employees at FDNY—filed a putative class action complaint against the City.6 (Dkt. No. 1; Compl. ¶¶ 8–12, 14.) Plaintiffs seek to represent two classes of FDNY employees or job applicants: (1) a class asserting discrimination in hiring and job placement (whether through initial job assignment or promotion decisions), consisting of (a) all African Americans who have, since December 1, 2014, qualified for a posted civilian vacancy at FDNY, applied, and been rejected, and (b) all African Americans who have been employed full-time at FDNY in certain civilian positions at any time since December 1, 2013; and (2) a class asserting discrimination in compensation decisions, consisting of all African Americans who have been employed full-time at FDNY in certain civilian positions at any time since December 1, 2013.7 (Compl. ¶ 136.) Plaintiffs’ complaint asserts two counts against the City. Count One alleges that FDNY has engaged in a pattern or practice of intentional racial discrimination in hiring, job-placement, and compensation decisions that violates Section 1981 by impairing Plaintiffs’ right to make and enforce contracts on the same terms as white citizens, with relief pursuant to Section 1983. (Compl. ¶¶ 155–61.) Count Two alleges that FDNY’s hiring, job-placement, and compensation practices additionally violate NYCHRL, either by intentionally discriminating against African Americans or at least by having an adverse, disparate impact on African Americans. (Compl.
6 The complaint names a seventh plaintiff, Arlene Simmons, who is an African American EMS employee at FDNY (Compl. ¶ 13), but she has voluntarily dismissed her claims against the City without prejudice (Dkt. No. 7).
7 The complaint also expresses Plaintiffs’ intention to represent a third class, consisting of all African Americans who have been employed full-time at FDNY in certain EMS positions at any point since December 1, 2013. (Compl. ¶ 136.) But, as explained above, Plaintiffs’ claims on behalf of this class are moot. See supra note 2.
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¶¶ 162–67.) In addition to monetary damages, Plaintiffs seek an injunction requiring the City to take steps toward addressing the systemic disparities identified in the complaint. (Compl. at 57– 58.)
Presently before the Court are two motions the City filed on February 5, 2018. First, the City moves to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a legally cognizable claim. (Dkt. No. 11.) Second, the City moves to stay discovery pursuant to Rule 26(c) pending resolution of its motion to dismiss. (Id.) Because today’s ruling on the City’s motion to dismiss obviates the City’s stay motion, the latter motion is denied as moot.8 The Court therefore turns to the principal matter before it, the City’s motion to dismiss. II. Legal Standard
To state a legal claim, a complaint must contain factual allegations sufficient “to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnote omitted). In other words, the complaint’s allegations must “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
This standard does not require the plaintiff to plead facts that, if true, would cement the defendant’s liability. Instead, “it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal[ity].” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (alteration in original) (quoting Twombly, 550 U.S. at 556). In the context of employment discrimination in particular, “the pleading requirements . . . are very lenient, even
8 The Court notes in any event that discovery in this case has already long been stayed pending resolution of the City’s Rule 12(b)(6) motion. (Dkt. No. 24.)
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de minimis.” Robinson v. Gucci Am., No. 11 Civ. 3742, 2012 WL 259409, at *3 (S.D.N.Y. Jan. 27, 2012) (quoting Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003)). Still, a plaintiff’s allegations must at least “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. III. Discussion
The City makes two principal arguments in support of its motion to dismiss. First, it argues that the complaint’s factual allegations are insufficient to render Plaintiffs’ discrimination claims plausible. (Dkt. No. 12 at 14–25.) Second, it argues that even if Plaintiffs’ claims are plausible, they are partially time-barred. (Dkt. No. 12 at 8–14.)
A. Plausibility of Plaintiffs’ Discrimination Claims Plaintiffs assert two distinct theories of liability. First, they claim that the City’s hiring, job-placement, and compensation practices reflect a pattern or practice of intentional racial discrimination against African Americans in violation of both Section 1981 and NYCHRL. (Dkt. No. 17 at 1.) Second, they claim that those practices have an adverse—even if unintended—disparate impact on African Americans in violation of NYCHRL alone. (Id.)
1. Pattern-or-Practice Claims (Intentional Discrimination) i. Section 1981
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The right thus protected “includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b). To assert a pattern or practice that violates Section 1981, a plaintiff must plausibly allege that intentional “‘racial discrimination was the [defendant’s] standard operating procedure[,] the regular rather
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than the unusual practice,’ and that the discrimination was directed at a class of victims.” United States v. City of New York (“City of New York II”), 717 F.3d 72, 83 (2d Cir. 2013) (second alteration in original) (citation omitted) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977)).
When bringing a Section 1981 pattern-or-practice claim, “the plaintiff bears the initial burden of presenting a prima facie case,” which requires that the plaintiff produce “sufficient evidence to create a rebuttable presumption of the existence of . . . the employer’s pervasive practice of intentional discrimination.” Id. To make this prima facie showing, “the plaintiff need not initially show discrimination against any particular present or prospective employee.” Id. at 84. Rather, “a statistical showing of disparate impact might suffice.” Id. Once the plaintiff has made this showing, “the burden then shifts to the employer ‘to rebut the presumption of discrimination.’” Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)).
To survive a motion to dismiss, though, “a complaint need not establish a prima facie case of employment discrimination.” Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 215 (S.D.N.Y. 2010). Instead, the complaint need only carry the “minimal burden” of “provid[ing] ‘at least minimal support for the proposition that the employer was motivated by discriminatory intent.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (quoting Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015)).
Here, Plaintiffs’ complaint contains three types of evidence that support their pattern-orpractice claim: (1) statistical evidence showing that (a) FDNY employs proportionally fewer African American civilian workers than other City agencies employ in similar job categories, (b) African American underrepresentation in FDNY civilian positions is most pronounced in the
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highest-paid job categories, and (c) the median pay of a sampling of FDNY’s African American civilian employees in at least two job positions is lower than the median pay of a sampling of FDNY’s white employees in identical job positions; (2) citation to prior class-action litigations that produced evidence that FDNY’s hiring practices for firefighters have had a discriminatory racial impact; and (3) anecdotal accounts of African American civilian employees who were denied sought-after job positions or pay raises.
In moving to dismiss, the City attacks the persuasiveness of each of these three categories of evidence. As to Plaintiffs’ statistics, the City argues that Plaintiffs have pleaded insufficient facts to plausibly suggest that the disparities they have identified are attributable to intentional discrimination rather than to some other cause. (Dkt. No. 12 at 16–19.) As to the prior class actions, the City argues that their consideration of discrimination in FDNY’s hiring practices for firefighters has no bearing on FDNY’s employment practices for civilian employees. (Dkt. No. 12 at 14–15.) And as to the individual anecdotes, the City argues that they are too conclusory to establish that the African American employees denied promotions or raises had qualifications comparable to those of their more successful white colleagues. (Dkt. No. 12 at 21–22.)
Finally, the City contends in addition that Plaintiffs’ own allegations rebut any inference that the City acted with an intent to discriminate. Specifically, the City highlights as demonstrative of FDNY’s racial inclusivity the complaint’s allegations that FDNY’s civilian workforce is 22% African American (Dkt. No. 12 at 16) and that Bureau of Human Resources head Donay Queenan, who plays a significant role in approving hires, promotions, and pay raises, is biracial (Dkt. No. 12 at 20).
The Court concludes that Plaintiffs have adequately pleaded some, but not all, of their federal discrimination claims. In particular, the Court concludes that Plaintiffs have alleged
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sufficient facts to raise a plausible inference that the City’s hiring and job-placement practices are influenced by impermissible racial discrimination, but that the same cannot be said for their claims regarding the City’s compensation decisions.
a. Hiring and Job Placement Plaintiffs’ hiring and job-placement claims satisfy the standard required to survive a motion to dismiss. To be sure, no one of Plaintiffs’ allegations constitutes a smoking gun, nor does the complaint taken as a whole compel the conclusion that the City has exhibited a practice of intentional racial discrimination in deciding whom to hire or promote into which positions. But Plaintiffs need not prove their case at this stage. Indeed, they need not even make out a prima facie case of discrimination. See Barbosa, 716 F. Supp. 2d at 215. Instead, they need only “raise a reasonable expectation that discovery will reveal evidence of illegal[ity].” Arista Records, 604 F.3d at 120 (alteration in original) (quoting Twombly, 550 U.S. at 556). Plaintiffs have done so. Most critically, their statistical evidence is compelling. Unlike in Burgis v. New York City Department of Sanitation, 798 F.3d 63 (2d Cir. 2015), upon which the City relies, Plaintiffs have done more than produce “only the raw percentages of [white and black] individuals at each employment level,” id. at 70. Rather, in addition to those raw numbers, Plaintiffs have shown that African Americans are underrepresented at FDNY—and particularly in higher-paying job categories—when FDNY’s workforce is compared to that of other City agencies that have filled comparable positions from the exact same ranked applicant lists that FDNY uses. The City responds that “[n]either the Supreme Court nor the Second Circuit has ever held that the employer’s overall workforce . . . provides the appropriate basis of comparison in a pattern or practice hiring case.” (Dkt. No. 12 at 17.) And it is true enough that racial disparities across a large employer’s various divisions might not in every case be probative
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of any one division’s discriminatory intent. Here, though, Plaintiffs have adequately alleged that FDNY is similarly situated to other City agencies, in that the City “refers the same pool of candidates to FDNY and to other agencies seeking to fill [c]ivilian positions with the same civil service titles.” (Compl. ¶ 30.) Under such circumstances, it is highly suggestive that “the percentages of African Americans in FDNY are far lower than in other agencies in the New York City government.” (Id.) Perhaps discovery will reveal that factors other than intentional discrimination account for the relative underrepresentation of African Americans at FDNY. But absent some “obvious alternative explanation,” Iqbal, 556 U.S. at 682 (quoting Twombly, 550 U.S. at 567), Plaintiffs’ statistical showing of racial disparity goes a long way toward “permit[ting] the court to infer more than the mere possibility of misconduct,” id. at 679.
Moreover, and again unlike in Burgis, Plaintiffs do not rely on “statistics alone” to raise an inference of discriminatory intent. Burgis, 798 F.3d at 69. In addition to their statistical evidence, Plaintiffs point to a 2010 United States district court opinion concluding that an organization of African American firefighters had presented evidence that was “plainly sufficient to establish a prima facie case” of intentional discrimination against African American applicants for firefighter positions at FDNY. City of New York I, 683 F. Supp. 2d at 249; see also City of New York II, 717 F.3d at 88 (leaving that conclusion undisturbed on appeal). The court reached this conclusion only after considering a “voluminous” summary judgment record that represented “the fruits” of “extensive discovery.” City of New York I, 683 F. Supp. 2d at 244.
To be sure, that case did not involve civilian employees, and it settled prior to any ultimate factual determination on the question of discrimination. But the fact that the extensive discovery in that case produced statistical and historical evidence that a court in this Circuit deemed sufficient to make out a prima facie case that FDNY has engaged in discrimination
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against African American firefighter applicants supports a “reasonable expectation that discovery” related to a different group of job-seekers at that same agency, i.e., civilian job applicants and hopefuls for promotion, could turn up comparable “evidence of illegal[ity].” Arista Records, LLC, 604 F.3d at 120 (alteration in original) (quoting Twombly, 550 U.S. at 556). At the very least, that earlier case’s identification of a “long-standing pattern of low minority participation” at FDNY that has persisted since the 1970s without meaningful abatement notwithstanding the imposition of a remedial injunction, City of New York II, 717 F.3d at 88, further bolsters the plausibility of Plaintiffs’ contention that the statistical disparities identified in the complaint arise out of an agency-wide pattern of discrimination.
Further still, Plaintiffs’ complaint here supplements its statistical evidence of racial disparity with anecdotal evidence designed to “bring[] ‘the cold numbers convincingly to life.’” EEOC v. Bloomberg L.P., 778 F. Supp. 2d 458, 469 (S.D.N.Y. 2011) (quoting Teamsters, 431 U.S. at 339). To be sure, not all of the complaint’s individual examples hold much persuasive value. For instance, while the complaint relates that Plaintiff Liza Horsley, who is African American, has over the course of nineteen years applied for about ten positions for which she was qualified and yet has been unsuccessful each time (Compl. ¶ 53), it contains no allegations about the race and qualifications of the people ultimately selected to fill those positions, and thus provides no basis for attributing Horsley’s lack of success to racial discrimination. Others of Plaintiffs’ examples, however, more effectively buttress an inference of discrimination. Take, for instance, Plaintiff Stephanie Thomas, who holds a master’s degree in project management and who during her nearly thirty years at FDNY has received advanced training and awards for her performance. (Compl. ¶ 55.) Despite her qualifications, Thomas received none of the seven project management positions for which she applied over the course of two years; instead, she
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watched those positions either remain unfilled or go to white applicants, one of whom had only a high-school degree. (Compl. ¶ 56.) Similarly, the complaint relates the story of John Dove, an African American civilian employee, who has been denied three promotions, each of which instead went to a white applicant notwithstanding the fact that Dove was so qualified that his director asked him to train one of the promotions’ recipients. (Compl. ¶ 57.) Such instances, while perhaps insufficient on their own to create a plausible inference that FDNY engages in a pattern or practice of racial discrimination in filling civilian positions, at least nudge Plaintiffs’ pattern-or-practice claim ever so slightly further toward plausibility when taken together with Plaintiffs’ other allegations.
Nor is the Court persuaded by the City’s contention that Plaintiffs’ own allegations in fact undercut any inference of discrimination by establishing FDNY’s racial inclusivity. Given that African American representation at FDNY so markedly undershoots African American representation elsewhere among City agencies that draw from the exact same applicant pool for similar jobs, the fact that FDNY’s civilian workforce is 22% African American does not, as the City would have it, necessarily point to a lack of discrimination. (Dkt. No. 12 at 16.) Nor is it especially relevant that Bureau of Human Resources head Donay Queenan, who approves jobplacement decisions, is biracial. (Compl. ¶ 79.) Even assuming the City’s dubious implicit proposition that somebody who is biracial cannot be moved to discriminate against African Americans, “[a]lmost all” of the 50–100 department heads who have a hand in hiring and promotion decisions are alleged to be white. (Id.)
In sum, the allegations here include Plaintiffs’ strong statistical evidence of African Americans’ underrepresentation at FDNY relative to their representation at other City agencies hiring from the same applicant pool, a sibling court’s conclusion after full discovery that
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adequate evidence supported an inference of intentional discrimination elsewhere within FDNY, and anecdotal evidence plausibly relating individual instances of discrimination. Those allegations, considered together, are sufficient to support a conclusion that it is at least plausible that FDNY stands out among City agencies for its comparatively low African American representation—particularly within higher-paid job categories—as a result of systemic, intentional racial bias. Certainly, Plaintiffs have hardly proven the point. But at this stage, they need not. Right now, the question for the Court is whether Plaintiffs have created a “reasonable expectation” that discovery will prove fruitful. Arista Records, 604 F.3d at 120 (quoting Twombly, 550 U.S. at 556). As to their federal hiring and job-placement claims, the Court concludes that they have.
b. Compensation Plaintiffs’ claim that the City’s compensation decisions reflect intentional racial bias does not fare as well. In contrast to the statistical evidence that plausibly demonstrates African Americans’ underrepresentation among FDNY’s civilian ranks, the statistical evidence Plaintiffs adduce to support their compensation-based claims is inadequate to bring the inference of an agency-wide pattern or practice of pay discrimination “from possible to plausible.” Biro v. Conde Nast, 963 F. Supp. 2d 255, 287 (S.D.N.Y. 2013). The complaint points to race-linked pay disparities in only two of the many civilian job positions available at FDNY and asserts, without any stated justification, that these potentially isolated disparities make it “reasonable to believe that statistically significant disparities exist between the compensation of white and African American employees in many job titles.” (Compl. ¶ 116.) What is more, even within the two civilian job positions that the complaint does address, Plaintiffs allege only that the median pay of the known white employees in each position is higher than the median pay of the known
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African American employees in the same position. (Compl. ¶¶ 112, 115.) In doing so, Plaintiffs make no effort to demonstrate that the white and African American employees being compared are similarly situated with respect to anything other than their job titles, and Plaintiffs further provide no indication of how many employees holding these job titles are of unknown race and are therefore not reflected in the data. (See id.) Such sparse and decontextualized data points fail to plausibly suggest systemic disparity in the first place, let alone that “non-discriminatory explanations” for those disparities that do exist are “very unlikely.” Burgis, 798 F.3d at 69.
Nor does Plaintiffs’ anecdotal evidence—which Plaintiffs themselves recognize plays but a “limited role” in a pattern-or-practice claim (Dkt. No. 17 at 14)—adequately buoy their underwhelming statistical evidence. For example, Plaintiff Annette Richardson notes that upon being promoted to a position that had previously been filled by a white man, she was offered a salary 33% lower than her predecessor’s. (Compl. ¶ 118.) But comparing Richardson’s starting salary to the salary her predecessor was receiving by the time of his retirement is not especially telling, particularly absent any allegations regarding Richardson’s and her predecessor’s relative experience and seniority. Similarly, Plaintiffs Dino Riojas and Stephanie Thomas point to the fact that they have never received a discretionary pay raise, whereas colleagues who are not African American have been more fortunate. (Compl. ¶¶ 120–21.) But the complaint never describes the comparative qualifications of Riojas and Thomas and those employees who have received discretionary raises. Even if others of Plaintiffs’ individual anecdotes have slightly more meat on the bones, such isolated instances, even when viewed alongside Plaintiffs’ scattershot glimpses of statistical pay disparity, are insufficient to create a plausible inference that racial discrimination in compensation was the City’s “standard operating procedure[,] the
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regular rather than the unusual practice.” City of New York II, 717 F.3d at 83 (alteration in original) (quoting Teamsters, 431 U.S. at 336).
Plaintiffs’ federal claims are therefore dismissed to the extent that they rely on the theory that FDNY has engaged in a pattern or practice of racial discrimination in its compensation practices.
ii. NYCHRL Plaintiffs’ pattern-or-practice claims under NYCHRL must be analyzed “separately and independently from any federal and state law claims.” Mihalik v. Credit Agricole Ceuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). This is because NYCHRL “‘explicitly requires an independent liberal construction analysis in all circumstances,’ an analysis that ‘must be targeted to understanding and fulfilling what the statute characterizes as [its] “uniquely broad and remedial purposes,” which go beyond those of counterpart State or federal civil rights laws.’” Bennet v. Health Mgmt. Sys., Inc., 936 N.Y.S.2d 112, 116 (App. Div. 1st Dep’t 2011) (italics omitted) (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 31 (App. Div. 1st Dep’t 2009)). To state a claim of intentional discrimination under this liberal standard, a plaintiff “need only show differential treatment—that she is treated ‘less well’—because of a discriminatory intent.”9 Mihalik, 715 F.3d at 110. Here, Plaintiffs’ NYCHRL pattern-or-practice claims meet the same fate as their federal counterparts. Because Plaintiffs have stated a plausible Section 1981 violation based on the City’s hiring and job-placement practices, they have necessarily stated a claim based on those
9 The parties have not identified any federal or state-law authority analyzing the elements of a pattern-or-practice claim under NYCHRL, and this Court has found none. But the parties all assume that such claims are analyzed under the same “treated less well” standard NYCHRL applies to a claim of discrimination against an individual employee, and this Court follows suit. (Dkt. No. 17 at 7–8; Dkt. No. 21 at 9.)
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same practices under NYCHRL’s more permissive standard. But, for the same reasons discussed above in connection with their Section 1981 claim, Plaintiffs’ meager statistical evidence of pay disparity is also insufficient to raise a plausible inference that FDNY’s African American civilian employees are systemically “treated ‘less well,’” id., in terms of compensation than are their peers of other races. Plaintiffs’ NYCHRL claim that FDNY engages in a pattern or practice of pay discrimination is therefore dismissed.
2. Disparate-Impact Claims Under NYCHRL Plaintiffs next claim that even if the disparities identified in the complaint are not the product of intentional discrimination on the part of FDNY, liability may nonetheless attach under NYCHRL because FDNY’s “group of [hiring, promotion, and compensation] policies or practices . . . results in a disparate impact to the detriment of” African Americans.10 N.Y.C. Admin. Code § 8-107(17)(a)(1). To state a disparate-impact claim under NYCHRL, Plaintiffs must plausibly “(1) identify a specific employment practice or policy; (2) demonstrate that a disparity exists; and (3) establish a causal relationship between the two.” Teasdale v. City of New York, No. 08 Civ. 1684, 2013 WL 5300699, at *8 (E.D.N.Y. Sept. 18, 2013). With respect to the first element, Plaintiffs’ complaint clearly places at issue FDNY’s “fail[ure] to adopt or systematically implement at least four” specific, identifiable “human resource practices”: conducting regular, objective performance evaluations; publicizing open job positions; producing written explanations for employment decisions; and monitoring employment decisions for racial disparities. (Compl. ¶ 85; see also ¶¶ 86, 91, 93–94.) Failure to
10 Unlike Plaintiffs’ theory of intentional discrimination, Plaintiffs’ disparate-impact theory does not implicate Section 1981. See Patterson v. Cty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (“[A] plaintiff pursuing a claimed violation of [Section 1981] . . . under [Section 1983] must show that the discrimination was intentional . . . .”).
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adopt mechanisms that would limit the potential influence of racial bias in employment decisions is precisely the sort of “employment practice or policy,” Teasdale v. City of New York, 2013 WL 5300699, at *8, that courts have found sufficient to form the basis for a disparate-impact claim under federal antidiscrimination law, see, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 (1988) (explaining that an employer’s “leaving promotion decisions to the unchecked discretion of lower level supervisors” is an employment practice that can give rise to disparateimpact liability under Title VII if it results in racially disparate outcomes).
Plaintiffs have also sufficiently pleaded the second element of their disparate-impact claim, at least insofar as the claim pertains to FDNY’s hiring and job-placement practices. As the Court has already explained, Plaintiffs’ allegations plausibly establish African American underrepresentation within FDNY’s civilian workforce, particularly at the highest-paying levels.
Finally, Plaintiffs have plausibly alleged that the four human resource practices absent from FDNY’s playbook would, if adopted, “reduce the opportunity for discrimination” by rendering employment decisions more objective and subjecting them to greater oversight. (Compl. ¶ 3.) It is reasonable to infer, then, that the absence of those practices “facilitate[s] [a] pattern of discriminatory job selection decisions” and therefore is responsible, at least in part, for the disparate racial impact Plaintiffs have plausibly alleged. (Compl. ¶ 85.)
The City responds that Plaintiffs have failed to allege that the absence of any one of the identified human resource practices—or even the absence of all four of them—“alone causes the disparate impact.” (Dkt. No. 12 at 24 (emphasis added).) To the extent the City argues that Plaintiffs were obliged to select one from among the four alleged human resource deficiencies as the source of the disparate impact, the argument is foreclosed by NYCHRL’s text, which provides that a plaintiff who “demonstrates that a group of policies or practices results in a
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disparate impact . . . shall not be required to demonstrate which specific policies or practices within the group results in such disparate impact.” N.Y.C. Admin. Code § 8-107(17)(a)(2) (emphasis added). And to the extent the City argues that Plaintiffs were obliged to plausibly allege that the City’s shortcomings in human resource policy are the only contributors to racial imbalance at FDNY, the City has pointed to no authority for the unlikely proposition that a plaintiff can establish disparate-impact liability only by pinpointing every last cause of unjustified racial disparity within an employer’s workforce.
Plaintiffs have therefore stated a viable disparate-impact claim under NYCHRL on the basis of FDNY’s hiring and job-placement decisions.
As for Plaintiffs’ compensation-based claims, though, they falter here for the same reason they fail under the pattern-or-practice rubric. Critically, a disparate-impact claim under NYCHRL requires a showing that one or more identifiable employment practices “results in a disparate impact.” N.Y.C. Admin. Code § 8-107(17)(a)(1). As the Court has already explained, Plaintiffs’ allegations are insufficient to raise a plausible inference that the compensation of FDNY’s African American civilian employees meaningfully lags behind that of FDNY’s other civilian employees. Plaintiff’s NYCHRL disparate-impact claim based on FDNY’s compensation practices is therefore dismissed.
B. Whether Plaintiffs’ Claims Are Partially Time-Barred The City contends that even if Plaintiffs have adequately pleaded violations of Section 1981 and NYCHRL, the claims are time-barred to the extent that they accrued prior to December 1, 2014—three years prior to the filing of the complaint. (Dkt. No. 12 at 8–10; Dkt. No. 25.) Plaintiffs respond that Section 1981 liability can attach for certain promotion and compensation decisions occurring between December 1, 2013, and December 1, 2014 (Dkt. No. 17 at 16–19), and that none of their NYCHRL claims are time-barred (Dkt. No. 17 at 19–24).
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1. Section 1981 Claims The statute of limitations for a claim brought directly under Section 1981 against a private employer depends on whether or not the claim was cognizable prior to the enactment of the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071. That Act extended Section 1981’s antidiscrimination protections beyond the time of contract formation to cover an employee’s subsequent “enjoyment of all benefits, privileges, terms, and conditions of the [ongoing] contractual relationship.” Id. § 101, 105 Stat. at 1072 (codified at 42 U.S.C. § 1981(b)); see also Patterson v. McLean Credit Union, 491 U.S. 164, 177 (1989) (holding that the pre-1991 version of Section 1981 did not cover “conduct by the employer after the contract relation has been established”). Where a Section 1981 claim asserts the sort of discrimination in contract formation that would have been actionable prior to 1991, it “is subject to the state statute [of limitations] applicable to personal injury claims,” which in New York is three years. Tadros v. Coleman, 898 F.2d 10, 12 (2d Cir. 1990). But where a Section 1981 claim asserts the sort of post-formation discrimination that is actionable only as a result of the 1991 amendment, it is subject to the four-year statute of limitations applicable to “civil action[s] arising under an Act of Congress enacted after [December 1, 1990].” 28 U.S.C. § 1658; see also Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004). Here, Plaintiffs accept that Section 1981 claims asserting discrimination in hiring or in conferring the sort of promotion that creates “an opportunity for a new and distinct relation between the employee and the employer” concern contract formation and thus are subject to a three-year limitations period. (Dkt. No. 17 at 16.) But they argue that their Section 1981 claims asserting discrimination in connection with compensation and the sort of promotions that establish no “new and distinct” employment relationship concern post-formation conduct and are therefore subject to a four-year limitations period. See Butts v. City of N.Y. Dep’t of Hous. Pres.
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& Dev., 990 F.2d 1397, 1412 (2d Cir. 1993) (holding that promotions that “create[] a qualitatively different relation between the employer and employee” were covered by Section 1981 prior to 1991 but that “[p]romotions understood by the parties to be given routinely upon satisfactory job performance” were not).
Plaintiffs overlook, however, that they have not—and indeed could not have—brought their federal claims against the City directly under Section 1981, but instead have located their right to relief for the City’s alleged Section 1981 violations in Section 1983, which provides a cause of action for statutory violations committed under color of state law. (Compl. ¶¶ 158–59; Dkt. No. 17 at 15–16.) Plaintiffs have proceeded under Section 1983 because, as the Supreme Court has explained, “the express cause of action for damages created by [Section] 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in [Section] 1981 by state governmental units.” Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 733 (1989) (emphasis added). And claims brought under Section 1983 are “governed by state law, [which] in this case is the three-year period for personal injury actions under New York State law.” Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009); see also Morse v. Univ. of Vt., 973 F.2d 122, 126 (2d Cir. 1992) (“[D]iscrimination actions brought pursuant to [Sections 1981 and 1983] are most analogous to personal injury actions under state law . . . .”).
Ultimately, because Plaintiffs have brought their Section 1981 claims pursuant to Section 1983, the claims are subject to Section 1983’s three-year statute of limitations rather than Section 1981’s more variable limitations period. See City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 124–25 (2005) (explaining that the statute of limitations for a Section 1983 action does not depend on which underlying right the action is brought to enforce); Duplan v. City of New York, 888 F.3d 612, 619–21 (2d Cir. 2018) (rejecting plaintiff’s effort to bring a claim
25

against state actors directly under Section 1981 in order to avoid Section 1983’s narrower statute of limitations). Plaintiffs’ federal claims are therefore dismissed to the extent that they accrued prior to December 1, 2014.
2. NYCHRL Claims Claims under NYCHRL are also generally subject to a three-year statute of limitations. See N.Y.C. Admin. Code § 8-502(d). Plaintiffs, however, contend that their effort to seek redress under NYCHRL for “racial discrimination within FDNY in job selection and compensation decisions [that] has been continuing since 2004” faces no timeliness problem. (Compl. ¶ 166; see also Dkt. No. 17 at 19.) In making this argument, Plaintiffs invoke the “continuing violation” doctrine, which provides that if a plaintiff makes a discrimination claim “that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.”11 Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155–56 (2d Cir. 2012) (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), overruled on other grounds by Greathouse v. JHS Sec. Inc., 784 F.3d 105 (2d Cir. 2015)). For purposes of Title VII’s federal antidiscrimination protections, the continuing violation doctrine is inapplicable where, as here, the employer conduct complained of consists of a series of “[d]iscrete acts such as . . . failure to promote . . . or refusal to hire.” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). But some courts have held that a “more generous[] continuing violations doctrine” applies to NYCHRL claims, Sotomayor v. City of New York, 862 F. Supp. 2d 226, 250 (E.D.N.Y. 2012) (citing Williams, 872 N.Y.S.2d at 35), and
11 Plaintiffs have disavowed any intention to argue that the continuing violation doctrine applies to their federal claims. (Dkt. No. 17 at 19.)
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the parties assume that these courts are correct12 (Dkt. No. 12 at 12; Dkt. No. 17 at 19). Under this more permissive standard, a plaintiff can demonstrate a continuing violation “where there is proof of specific ongoing discriminatory policies 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.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (quoting Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994)); see also Dimitracopoulos v. City of New York, 26 F. Supp. 3d 200, 212 (E.D.N.Y. 2014) (applying this standard to an NYCHRL claim).
As for Plaintiffs’ NYCHRL pattern-or-practice claim, it almost ipso facto alleges a continuing violation—namely, a longstanding, agency-wide policy of “intentional racial discrimination against African American employees” in hiring, promotion, and compensation decisions. (Compl. ¶ 3.)
The City rejects this straightforward conclusion, arguing that the continuing violation doctrine can apply only where discrimination is attributable to an employer’s use of “an ‘identifiable policy or practice’ such as the ‘repeated use of discriminatory seniority lists or employment tests’” and that, here, Plaintiffs attribute the racial disparities at FDNY to the interrelation of several nebulous factors. (Dkt. No. 12 at 12 (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997)).) But the gravamen of Plaintiffs’ pattern-or-practice claim is that FDNY has embarked on a single continuous and intentional effort to block the advancement of African Americans, even if it has pursued this end through a diverse array of
12 Courts are divided on whether or not claims of a continuing violation under NYCHRL should be analyzed under the standard that applies to Title VII claims. See Torres v. N.Y. Methodist Hosp., No. 15 Civ. 1264, 2016 WL 3561705, at *8 n.10 (E.D.N.Y. Jan. 7, 2016) (acknowledging a split of authority). But because the parties here assume that Title VII’s stricter standard does not apply to Plaintiffs’ NYCHRL claims, this Court does the same.
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means. Where varied but related instances of discrimination “continue unremedied” for a long enough period, discrimination itself can “amount to a . . . policy or practice” that triggers the continuing violation doctrine. Lightfoot, 110 F.3d at 907 (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996)); see also id. (observing that allegations of “an ongoing policy of ‘victimizing’ older employees” are sufficient to state a continuing violation claim); Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. & N.J., 681 F. Supp. 2d 456, 464–65 (S.D.N.Y. 2010) (holding that “intentional discrimination [that] was so pervasive in [an employer’s] practices for promotion . . . that it amounted to a discriminatory policy or custom” could form the basis for a continuing violation claim); Jeudy v. City of New York, 37 N.Y.S.3d 498, 501 (App. Div. 1st Dep’t 2016) (holding that an employer’s “standing practice of refusing to promote foreign-accented” employees can form the basis for a continuing violation claim). The continuing violation doctrine therefore applies to Plaintiffs’ NYCHRL pattern-orpractice claim based on FDNY’s alleged policy of intentionally discriminating against African Americans in its hiring and job-placement decisions.
As for Plaintiffs’ disparate-impact claim, it too plausibly alleges a continuing violation under NYCHRL’s liberal standard. As explained, Plaintiffs allege that FDNY’s failure to effectively implement human resource practices that would lend greater objectivity, consistency, and accountability to promotion decisions has resulted in persistent African American underrepresentation since at least since 2004. In essence, Plaintiffs’ disparate-impact claim challenges the ad hoc and subjective way that FDNY is alleged to have long approached its civilian employment decisions. This target is sufficiently precise to constitute an “ongoing discriminatory polic[y] or practice[].” Quinn, 159 F.3d at 766 (quoting Cornwell, 23 F.3d at 704); see also Port Auth. Police Asian Jade Soc’y, 681 F. Supp. 2d at 463 (finding that plaintiffs
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adequately “identif[ied] a particular employment practice” where they challenged an employer’s insufficiently standardized “practices for promotion”). And even if the specifics of FDNY’s allegedly unsystematic process for making employment decisions “were occasionally altered during the relevant period, the overall policy” of allowing the relevant decision-makers largely unguided and unsupervised discretion was alleged to have been “continuously maintained” throughout. Port Auth. Police Asian Jade Soc’y, 681 F. Supp. 2d at 463. Plaintiffs have thus plausibly alleged a continuing disparate-impact violation under NYCHRL with respect to their hiring and job-placement claims. IV. Conclusion
For the foregoing reasons, the City’s motion to stay discovery is DENIED as moot, Plaintiffs’ claims are DISMISSED as moot to the extent they allege discrimination against EMS employees, and the City’s motion to dismiss is GRANTED as to Plaintiffs’ Section 1981 and NYCHRL claims insofar as they allege pay discrimination and as to all federal claims accruing prior to December 1, 2014. The City’s motion to dismiss, however, is DENIED as to (1) Plaintiffs’ Section 1981 claims accruing after December 1, 2014, insofar as they allege a pattern or practice of intentional discrimination in hiring and job placement; (2) Plaintiffs’ NYCHRL claims insofar as they allege a pattern or practice of intentional discrimination in hiring and job placement; (3) and Plaintiffs’ NYCHRL claims insofar as they allege that the City’s hiring and job-placement practices have a disparate impact on African Americans.
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The Clerk of Court is directed to close the motion at Docket Number 11. SO ORDERED. Dated: September 28, 2018 New York, New York
____________________________________ J. PAUL OETKEN
United States District Judge
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ANNETTE RICHARDSON, et al., on behalf of themselves and all others similarly situated,
Plaintiffs,
-v-
CITY OF NEW YORK,
Defendant.

17-CV-9447 (JPO) OPINION AND ORDER

J. PAUL OETKEN, District Judge: In December 2017, a group of African American employees of the Fire Department of
New York (“FDNY”) filed a lawsuit against the City of New York (the “City”), raising claims under 42 U.S.C. §§ 1981 and 1983 and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq., and alleging that FDNY discriminates against African Americans in its hiring, promotion, and compensation practices. (Dkt. No. 4.) In a prior opinion and order, this Court held that Plaintiffs’ complaint plausibly alleged discrimination in FDNY’s hiring and promotion practices but that it lacked sufficient factual allegations to raise a plausible inference that FDNY’s compensation practices are similarly flawed. (Dkt. No. 26.) Plaintiffs now move to amend their complaint in order to, among other things, bolster their allegations of pay discrimination. (Dkt. No. 33.) For the reasons that follow, Plaintiffs’ motion is granted. I. Background
Familiarity with the Court’s prior opinion in this case is presumed. See Richardson v. City of New York, No. 17 Civ. 9447, 2018 WL 4682224 (S.D.N.Y. Sept. 28, 2018).
Plaintiffs filed their initial putative class-action complaint in this case on December 1, 2017. Id. at *4. That complaint alleged, as relevant, that (1) FDNY hires disproportionately few
1

African Americans into its civilian1 staff; (2) those African Americans who are hired are disproportionately hired into, and made to remain within, lower-paying civilian job positions; and (3) among those employees who occupy identical civilian job positions, African Americans receive disproportionately low compensation. Id. at *3. According to Plaintiffs, these disparities arise from intentional racial discrimination on the part of FDNY or, at a minimum, as an unintended consequence of FDNY’s failure to take certain measures to constrain the discretion and alleged biases of the small group of individuals responsible for making civilian hiring, promotion, and compensation decisions. Id. at *3–4.
On February 5, 2018, the City moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a plausible legal claim to relief. Id. at *5. In a September 28, 2018 opinion and order, this Court granted the City’s motion in part and denied it in part. Id. at *1. In particular, the Court held that Plaintiffs’ allegations supported the plausible inferences (1) that intentional racial discrimination affected FDNY’s hiring and promotion decisions in violation of federal law and NYCHRL, id. at *5–9, and (2) that a set of identifiable FDNY employment practices caused an adverse, even if unintended, disparate impact on African Americans in the realm of hiring and promotion, in violation of NYCHRL, id. at *9–10. But the Court also held, as relevant, that Plaintiffs’ factual allegations were insufficient to raise a plausible inference that “the compensation of FDNY’s African American civilian employees meaningfully lags behind that of FDNY’s other civilian employees,” id. at *10, for purposes of either an intentional-discrimination claim or a disparate-impact claim, see id. at *8–10.
1 FDNY’s “civilian” staff consists of those employees who are neither firefighter staff nor emergency medical services (“EMS”) staff. Richardson, 2018 WL 4682224, at *1.
2

Plaintiffs have now moved to file an amended complaint that, in their view, rectifies the deficiencies this Court found in their compensation claims.2 (Dkt. No. 33.) The City opposes Plaintiffs’ motion on futility grounds, arguing that the proposed amended complaint, just like the original complaint, fails to state a plausible pay-discrimination claim, whether under an intentional-discrimination theory or under a disparate-impact theory. (Dkt. No. 36.) II. Legal Standards
Federal Rule of Civil Procedure 15 directs courts to “freely give leave” for a party to file an amended pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). In ruling on a motion to amend, “the Court should consider whether the motion is being made after an inordinate delay without adequate explanation, whether prejudice to the defendants would result, whether granting the motion would cause further delay, and whether the amendment would be futile.” Vt. Country Foods, Inc. v. So-Pak-Co., Inc., 170 F. App’x 756, 759 (2d Cir. 2006) (summary order) (quoting Mountain Cable Co. v. Pub. Serv. Bd., 242 F. Supp. 2d 400, 403 (D. Vt. 2003)).
The City’s sole argument in opposition to Plaintiffs’ motion to amend is that amendment would be futile because the compensation claims in the proposed amended complaint would, like their predecessors in the original complaint, be subject to dismissal pursuant to Rule 12(b)(6). To state a claim capable of withstanding a Rule 12(b)(6) motion, a complaint must contain factual allegations sufficient “to raise a right to relief above the speculative level” if assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In other words, the complaint’s
2 The proposed amended complaint also differs in other ways from Plaintiffs’ initial complaint. For example, it adds some new plaintiffs and removes some original plaintiffs; removes certain claims involving FDNY’s EMS staff; and modifies the proposed plaintiff classes. (Dkt. No. 33 at 1.) The City raises no objection to Plaintiffs’ proposed amendments except to the extent that Plaintiffs seek to revive their compensation claims (see Dkt. No. 36 at 1 n.1), and the Court limits the scope of its discussion accordingly.
3

allegations must “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the context of employment discrimination, “the pleading requirements . . . are very lenient, even de minimis,” Robinson v. Gucci Am., No. 11 Civ. 3742, 2012 WL 259409, at *3 (S.D.N.Y. Jan. 27, 2012) (quoting Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003)), though a complaint’s allegations must nevertheless at least “permit the court to infer more than the mere possibility of misconduct,” Iqbal, 556 U.S. at 679. III. Discussion
Plaintiffs’ initial complaint sought to hinge a claim of FDNY-wide pay discrimination on a few anecdotal accounts, coupled with allegations that the median pay of employees known to be African American in two civilian job titles—Administrative Staff Analysts and Computer Associates—was less than the median pay of their white counterparts. See Richardson, 2018 WL 4682224, at *3. According to Plaintiffs’ original complaint, it was “reasonable to believe,” based on this evidence, “that statistically significant disparities exist between the compensation of white and African American employees in many job titles.” (Dkt. No. 4 ¶ 116.)
This Court disagreed. The Court noted that Plaintiffs had “point[ed] to race-linked pay disparities in only two of the many civilian job positions available at FDNY,” and that even within those two job positions, Plaintiffs had “allege[d] only that the median pay of the known white employees in each position [was] higher than the median pay of the known African American employees in the same position” without making any “effort to demonstrate that the white and African American employees being compared [were] similarly situated with respect to anything other than their job titles.” Richardson, 2018 WL 4682224, at *8. In addition, the Court observed, Plaintiffs had given “no indication of how many employees holding [those] job titles [were] of unknown race and [were] therefore not reflected in the data.” Id. Accordingly,
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the Court concluded that Plaintiffs’ pay-discrimination allegations, which boiled down to “isolated [anecdotal] instances” and “scattershot glimpses of statistical pay disparity,” id. at *9, were insufficient to create a plausible inference of systemic race-linked pay disparities, and so failed to state either an intentional-discrimination claim under federal law and NYCHRL or a disparate-impact claim under NYCHRL, see id. at *9–10.
In their proposed amended complaint, Plaintiffs have taken several steps to address these problems. First, instead of alleging pay discrimination across FDNY’s civilian workforce as a whole, Plaintiffs now focus their claims on only two of FDNY’s eight civilian job categories, Management Specialists and Professionals (the “Covered Categories”). (See Dkt. No. 33 at 3; Dkt. No. 33-1 (“FAC”) ¶ 114.) Second, Plaintiffs have now alleged that the mean or median pay of known African American employees in four job titles—up from two in the original complaint—is lower than the mean or median pay of similarly titled employees who are known not to be African American, and that those four job titles collectively include over half of the employees in the Covered Categories. (See Dkt. No. 33 at 3; FAC ¶¶ 117, 121, 136, 155, 164.) Third, Plaintiffs have now alleged that African American employees within at least three of these four job titles have received smaller raises on average than their similarly tenured peers of other races, thus undercutting the possibility that the pay disparities in those job titles are attributable solely to employees’ relative seniority. (See Dkt. No. 33 at 3; FAC ¶¶ 130, 138–41, 156–57.) Fourth, Plaintiffs have made clear that their allegations of pay disparity are based on an analysis of between 85% and 93% of the employees—i.e., those employees whose race is known—in each of the four job titles at issue.3 (See Dkt No. 33 at 3; FAC ¶¶ 121, 136, 155, 164.)
3 In addition, Plaintiffs have added further substance to their anecdotal accounts of pay discrimination. (See Dkt. No. 33 at 3–4; FAC ¶¶ 123–34, 145–49, 157–63.)
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The Court concludes that it is plausible to infer from these allegations that race-linked pay disparities exist within the Covered Categories. To be sure, this Court previously found it implausible to infer the existence of such disparities throughout FDNY’s entire civilian workforce from allegations that such disparities occurred within two exemplar job titles— particularly given that the Court had no way to assess the strength of even those limited allegations in light of Plaintiffs’ failure to specify what percentage of employees within those exemplar job titles were of unknown race and so had been excluded from Plaintiffs’ calculations. Here, though, the story is different. Plaintiffs ask the Court to infer the existence of race-linked pay disparities only within the Covered Categories, and they do so on the basis of allegations that such disparities exist within the four job titles that include most of the employees within those categories. Further, Plaintiffs have made clear that their allegations of disparities within these four job titles are based on data sets that are 85–93% complete. Particularly in light of the “exceedingly low burden that discrimination plaintiffs face even after they have survived a motion to dismiss,” Dawson v. N.Y.C. Transit Auth., 624 F. App’x 763, 770 (2d Cir. 2015) (summary order), Plaintiffs have alleged facts from which it is at least plausible to infer that race-linked pay disparities persist throughout the Covered Categories.
The City, for its part, never squarely argues that Plaintiffs have failed to plausibly allege that race-linked pay disparities occur throughout the Covered Categories. Instead, the City argues only that Plaintiffs have failed to plausibly allege that these disparities arise as a result of intentional discrimination (Dkt. No. 36 at 1–4) or, for purposes of Plaintiffs’ disparate-impact claim, as a result of an identifiable FDNY policy or group of policies (Dkt. No. 36 at 4–5).
The Court is not persuaded. With respect to intentional discrimination, the Court does not view Plaintiffs’ pay-discrimination allegations in a vacuum. Rather, the Court has already
6

held that Plaintiffs have plausibly alleged that FDNY intentionally discriminates against African American employees and applicants in its hiring and promotion decisions. Richardson, 2018 WL 4682224, at *7–8. Because the Court has held it to be “at least plausible that FDNY stands out among City agencies for its comparatively low African American representation . . . as a result of systemic, intentional racial bias,” id. at *8, it is likewise plausible to attribute the adequately alleged race-linked pay disparities within the Covered Categories to that same ill.
The City disagrees for two main reasons. First, construing Plaintiffs’ proposed amended complaint as “conced[ing] that [FDNY] does not engage in systemic pay discrimination” outside the Covered Categories, the City finds it implausible to believe that FDNY discriminates against African American employees in two specific job categories but not elsewhere within its civilian workforce. (Dkt. No. 36 at 2.) This argument, however, misreads the complaint. With respect to the six job categories that fall outside the Covered Categories, the complaint “exclude[s]” one of them without explanation; maintains that the “allocation of overtime opportunities” within two of them might be influenced by racial discrimination, even if employees within those categories enjoy roughly egalitarian base salaries; and alleges that there is “salary differentiation,” albeit on a relatively small scale, within the remaining three. (FAC ¶ 114.) Nothing in these allegations is inconsistent with the claim that racial discrimination more egregiously influences compensation within the Covered Categories, which happen to be two of the highest paying. (See FAC ¶ 24.)
Second, relying on Burgis v. New York City Department of Sanitation, 798 F.3d 63 (2d Cir. 2015), the City argues that Plaintiffs have insufficiently ruled out “non-discriminatory explanations,” id. at 69, for the alleged pay disparities. (Dkt. No. 36 at 3.) But as the City itself recognizes, Plaintiffs have made allegations that, assumed true, diminish the likelihood that pay disparities in at least three of the job titles at issue are attributable to employees’ relative
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seniority. (Id.) And, as the Court noted in its prior opinion, the plaintiffs in Burgis sought to rely on “statistics alone,” Richardson, 2018 WL 4682224, at *7 (quoting Burgis, 798 F.3d at 69), to support an inference of intentional discrimination, and so were required to plead statistical disparities that made non-discriminatory explanations for those disparities “very unlikely,” Burgis, 798 F.3d at 69. Here, Plaintiffs do not seek to draw an inference of discrimination exclusively from the bare fact that race-linked pay disparities exist within the Covered Categories; rather, Plaintiffs rely as well on their plausible allegations of discrimination in hiring and promotion (see FAC ¶¶ 44–52), which in turn are set against the backdrop of “a ‘longstanding pattern of low minority participation’ at FDNY that has persisted since the 1970s without meaningful abatement,” Richardson, 2018 WL 4682224, at *7 (quoting United States v. City of New York, 717 F.3d 72, 88 (2d Cir. 2013)).
Moreover, Plaintiffs have “buttress[ed] an inference of [pay] discrimination” within the Covered Categories with anecdotal accounts. Id. at *8. For example, FDNY allegedly hired Plaintiff Annette Richardson at a starting salary 20% lower than the salary she had been earning in her prior job, even though “[w]hite employees accepting jobs with FDNY . . . were not asked to take such large pay cuts.” (FAC ¶ 123.) And as Richardson was subsequently accumulating added job duties without seeing any salary increase, a white colleague was allegedly receiving substantial raises without taking on any new duties. (FAC ¶ 133.) Similarly, Plaintiff Dino Riojas has received no discretionary pay raises in thirty-five years even though he allegedly has relevant job skills that the non–African American comparators who have received such raises do not. (FAC ¶¶ 158–60.) While not dispositive, these allegations, and others like them (see Dkt.
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No. 33 at 4–5), add further plausibility to Plaintiffs’ claims that FDNY’s compensation decisions
within the Covered Categories are routinely influenced by intentional racial discrimination.4
As for Plaintiffs’ intentional-discrimination claims under federal law and NYCHRL,
then, the Court concludes that Plaintiffs’ proposed amendments would not be futile for purposes
of stating a claim based on a theory of pay discrimination.
The Court therefore turns to the City’s argument that Plaintiffs’ proposed amendments
regarding race-linked pay disparities are futile to the extent that they seek to introduce a
disparate-impact claim under NYCHRL. (See Dkt. No. 36 at 4–5.) According to the City, it is
implausible that the facially race-neutral employment policies Plaintiffs identify as contributing
to the alleged disparities—briefly, FDNY’s decision to allow “[a] small group of almost
exclusively white managers” to make compensation decisions (FAC ¶ 187; see also FAC ¶ 189),
coupled with FDNY’s failure to monitor these decisions for bias (FAC ¶¶ 181–86)—would cause
race-linked pay disparities within the Covered Categories but not within FDNY’s other civilian
job categories (Dkt. No. 36 at 4–5).
4 Plaintiff Brenda McKiver, despite holding a job position that does not fall within the Covered Categories, also brings a standalone pay-discrimination claim. (FAC ¶ 118.) The City briefly challenges the plausibility of this claim, characterizing McKiver’s factual allegations as “threadbare.” (Dkt. No. 36 at 4.) But McKiver, who is African American, has alleged that she has the fifth lowest salary out of over one hundred FDNY employees who hold her job title, despite her twenty-three-year tenure in her current position. (FAC ¶¶ 13, 171.) Indeed, McKiver has further alleged that her salary has been surpassed by that of a white colleague who holds the same job title, performs identical job duties, and has been in the job position for eleven fewer years than McKiver has. (FAC ¶ 175.) These allegations satisfy McKiver’s “minimal burden of showing facts suggesting an inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015); see also Brown v. Daikin Am. Inc., 756 F.3d 219, 229– 30 (2d Cir. 2014) (acknowledging that “[a] plaintiff may demonstrate circumstances giving rise to an inference of discrimination by alleging that [s]he was treated less favorably than similarly situated employees of other races,” id. at 229, and observing that “‘[w]hether two employees are similarly situated . . . presents a question of fact,’ rather than a legal question to be resolved on a motion to dismiss,” id. at 230 (alterations in original) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000))).
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As explained above, though, the proposed amended complaint does not rule out the possibility that pay disparities occur—albeit not necessarily in the same way or to the same degree—outside the Covered Categories. To be sure, if the evidence produced in discovery reveals that “the complained of [employment] practice[s] produce[] a disparate impact” in only a subset of FDNY’s civilian workforce, but that the disparity disappears “when the entire [civilian workforce] is analyzed,” the City may well be entitled to summary judgment on Plaintiffs’ disparate-impact claim. Wharff v. State Univ. of N.Y., 413 F. App’x 406, 409 (2d Cir. 2011) (summary order) (quoting Smith v. Xerox Corp., 196 F.3d 358, 369 (2d Cir. 1999), overruled on other grounds, Meachem v. Knolls Atomic Power Lab., 461 F.3d 134, 140 (2d Cir. 2006)). But at this stage, Plaintiffs have plausibly alleged that a set of employment policies allows a small group of decisionmakers at FDNY to give way to “subconscious stereotypes and prejudices,” Gordon v. City of New York, No. 14 Civ. 6115, 2016 WL 4618969, at *6 (S.D.N.Y. Sept. 2, 2016) (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 990 (1988)), with the result that “[non–African American] employees receiv[e] ‘preferential treatment in terms of . . . compensation,’” id. (quoting Hagan v. City of New York, 39 F. Supp. 3d 481, 490 (S.D.N.Y. 2014)). Plaintiffs need not allege that such a result materializes identically always and everywhere in order to raise a plausible disparate-impact claim at the pleading stage.
The Court therefore concludes that Plaintiffs’ proposed amendments would not be futile for purposes of stating an NYCHRL disparate-impact claim based on a theory of race-linked pay disparities within the Covered Categories. IV. Conclusion
For the foregoing reasons, Plaintiffs’ motion for leave to amend is GRANTED. Plaintiffs shall file their amended complaint on or before April 22, 2019. The City is directed to answer or otherwise respond to the amended complaint within three weeks after it is filed.
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The Clerk of Court is directed to close the motion at Docket Number 33. SO ORDERED. Dated: April 8, 2019 New York, New York
____________________________________ J. PAUL OETKEN
United States District Judge
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