1 14-1640-cv Burgis v. New York City Dep’t of Sanitation 

### UNITED STATES COURT OF APPEALS 1 

### F OR THE 

### S ECOND 

### C IRCUIT 2

_____________________ 3 4 A UGUST T ERM , 2014 5 6 (A RGUED : M ARCH 5, 2015 D ECIDED : July 31, 2015) 7 8 Docket No. 14-1640 9

_____________________ 10 11 A NDRENIA B URGIS , C HRISTOPHER B URGOS , L ETICIA S MITH , S AMUEL D UNCAN , A LONZO 12 H UDGINS , R ASHID S MITH , D OREN P INK , A NTHONY J OSEPH , I SRAEL D E J ESUS , on their own behalf 13 and on behalf of others similarly situated, 1 14 15 Plaintiffs-Appellants , 16 17 -v.- 18 19 N EW Y ORK C ITY D EPARTMENT OF S ANITATION , J OHN J. D OHERTY , 20 21 Defendants-Appellees , 22 23 J OHN D OES , 1-10, 24 25 Defendants

. 26 27 28 Before: 29 G UIDO C ALABRESI , P ETER W. H ALL , Circuit Judges , and J ED S. R AKOFF , District Judge

. 2 30

_______________________ 31 32 33 In this putative class action, plaintiffs alle ge discrimination on the basis of race and/or 34 national origin in the New York City Department of Sanitation’s promotional practices, relying 35 essentially on statistics that allegedly show disp arities in the composition of various supervisory 36

1 The caption reflects plaintiffs’ second am ended complaint, dated October 4, 2013, which, among other things, voluntarily dismisses plaint iffs John Whitehead, Angel Fuentes, and Don Phillip. The Clerk of Court is re spectfully directed to amend the official caption as set forth above. 2 Hon. Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.2 positions within the department. The district court dismissed plaintiffs’ Equal Protection and 1 § 1981 claims for failure to allege discriminatory intent, and dismissed the Title VII disparate 2 impact claim for failure to exhaust administrative remedies. We conclude that (1) while statistics 3 alone may be sufficient in some circumstances to show discriminatory intent in an Equal 4 Protection or § 1981 class claim, the statistics here alleged in the complaint were insufficient for 5 this purpose, and (2) plaintiffs failed to exhaus t their administrative remedies prior to filing the 6 Title VII disparate impact claim. Accordingly, th e judgment of the United States District Court 7 for the Southern District of New York (Griesa, J .) is hereby AFFIRMED. 8

_______________________ 9 APPEARING FOR APPELLANTS: A RTHUR Z. S CHWARTZ and Tracey L. Kiernan, 10 Advocates for Justice, Chartered Attorneys, New 11 York, New York 12 13 APPEARING FOR APPELLEES: F AY N G and Pamela Seider Dolgow for Zachary 14 Carter, Corporation Counsel of the City of New 15 York, New York, New York 16

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J ED S. R AKOFF , Senior District Judge: 18 Plaintiffs are individuals employed by the New York City Department of Sanitation 19 (“DSNY”), who allege that the de fendants, the City of New York 3 and John J. Doherty, 20 Commissioner of the DSNY, discriminated agains t them and others sim ilarly situated on the 21 basis of their race and/or national origin in th e DSNY’s promotional pract ices. Plaintiffs bring 22 this putative class action suit under the Fourt eenth Amendment Equal Protection Clause, under 23 42 U.S.C. § 1981, under Title VII (42 U.S.C. § 2000e ), and under the New York State and City 24 human rights laws. The district court dismissed all of plai ntiffs’ claims. We affirm. 25
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3 The complaint names the DSNY as a defendant in the lawsuit; however, as the New York City Charter requires all actio ns to be brought against the City, as opposed to any agency of the City, the district court correctly di smissed the DSNY as a party and construed the claims as though they were asserted against the City of New York.3 BACKGROUND 1 The second amended complaint 4 (“SAC”) makes the following factual allegations. After 2 the DSNY promotes individuals in its ranks of sanitation workers to supervisors, it may then 3 promote those supervisors to the position of general superintendent, ranging from general 4 superintendent level 1 (the lowest level) to ge neral superintendent leve l 4 (the highest level). 5 Prior to 1979, DSNY based promotion to supervisor and to general superintendent levels 1–3 on 6 written examinations, but after 1979 the examinations were eliminated for promotions to levels 2 7 and 3. Promotions to levels 2, 3, and 4 ar e now done on the basis of recommendations. 8 Plaintiffs allege that by using recommenda tions in this way, the DSNY has created a 9 supervisory workforce that is not representative of the racial and/or national origin composition 10 of the sanitation worker workforce. The SAC includes the following chart, which summarizes 11 the racial makeup of sanitation workers, supervisor s, and general superinte ndents in Fiscal Year 12
2011: 13 Title % White % Black % Hispanic
Sanitation Worker 56 23.5 18 Supervisor 81 11 10 General Superintendent Level 1 81 13 9 General Superintendent Level 2 & 3 91 4 3 General Superintendent Level 4 80 10 10
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4 On October 4, 2013, plaintiffs moved to substitu te a “revised” version of the first amended complaint. The district court allowed the filing but correctly referred to the revised first amended complaint as the second amended complaint.4 Plaintiffs further allege that th ere are qualified candidates for supe rvisor in the same percentages 1 racially as the percentages for these races that ar e present in the sanitation worker workforce as a 2 whole. Finally, they allege that even with respect to the positions requiring a written test ( i.e. , 3 supervisor and general superinte ndent level 1), the selection pr ocess invites some subjective 4 evaluation of candidates. 5 As to the individual plaintiffs, the SAC alleges as follows: 6 Plaintiff Andrenia Burgis, a Black female, st arted as a sanitation worker in 1998; she was 7 promoted to supervisor in 2003, and, in 2007, she wa s promoted to general superintendent level 8 1. By 2009, Ms. Burgis had obtained the prerequisi tes for promotion to le vel 2, but instead she 9 was replaced in her command at level 1 by a White male. He was subsequently promoted to level 10 2. She did not obtain another command until 2012, and a number of less qualified White 11 individuals were and have since been promoted. 12 Plaintiff Christopher Burgos, a Hispanic male, started at DSNY as a sanitation worker in 13 2000; he was promoted to supervisor in 2006. He took the exam for promotion to level 1 and is 14 currently on the list for promotion. 15 Plaintiff Leticia Smith, a Hispanic female, started at DSNY as a sanitation worker in 16 1995; she was promoted to supervisor in 2001, and she was promoted to general superintendent 17 level 1 in 2007. She has never been recomme nded for level 2, though she has the requisite 18 experience and White females and males with less experience have been promoted. 19 Plaintiff Samuel Duncan, a Hispanic/Black ma le, started at DSNY as a sanitation worker 20 in 2001; he was promoted to supervisor in 2008. He was demoted during a probationary period, 21 while White supervisors in the same position we re allowed to finish probation and remain as 22 supervisors. 235 Plaintiff Alonzo Hudgins, a Black male, starte d at DSNY as a sanitation worker in 1995; 1 he was promoted to supervis or in 2001, and was subsequently promoted to general 2 superintendent level 1. He has never been recommended to level 2, even though White males in 3 his borough have been recommended and promoted. 4 Plaintiff Rashid Smith, a Black male, starte d at DSNY as a sanitation worker in 1995; he 5 was promoted to supervisor in 2000, and he was subsequently promoted to general 6 superintendent level 1. He has never been recommended for level 2, even though less qualified 7 White males in his borough have been recommended and promoted. 8 Plaintiff Doren Pink, a Black male, started at DSNY as a sanitation worker in 1999; he 9 was promoted to supervisor in 2004. He took th e test for promotion to general superintendent 10 level 1, but has not been promot ed, though many of his White count erparts who took the test at 11 the same time have been promoted despite being less qualified. 12 Plaintiff Anthony Joseph, a Black male, starte d at DSNY as a sanitation worker in 1989; 13 he was subsequently promoted to supervisor. Despite having passed the exam, he has not been 14 promoted to general superintendent level 1, whil e White employees with lower scores have been 15 promoted. 16 Plaintiff Israel Dejesus, a Hispanic male, st arted at DSNY as a sanitation worker in 1995; 17 he was promoted to supervisor in 2005, and he wa s promoted to general s uperintendent level 1 in 18 2008. He has never been recommended for level 2, even though less qualified White employees 19 have been recommended and promoted. 20 As for individual defendant Doherty, plaintiffs allege that he “at all times, was aware that 21 his supervisory workforce was skewed and did not reflect either the racial or national origin 22 makeup of DSNY’s nonsupervisory workforce, or the general population of the City of New 236 York. Doherty, reflecting his approval of this di sparate classification, has taken no action to 1 change it, and has, therefore condoned the discrimination.” 2 On March 31, 2014, the district court granted de fendants’ motion to dismiss. With respect 3 to the § 1981 and Equal Protection claims, the dist rict court held that pl aintiffs had failed to 4 sufficiently allege discriminatory intent. As to the City and defendant D oherty in his official 5 capacity, the district court further found that pl aintiffs had not sufficiently pleaded that the 6 alleged discrimination was the result of an offici al policy, custom, or prac tice. As to defendant 7 Doherty in his individual capacity, the district court concluded that plaintiffs had not adequately 8 alleged that he was personally involved in the alleged discriminatory promotion practices and 9 only made conclusory allegations that he knew th e racial composition of the workforce. Finally, 10 the district court dismissed plaintiffs’ Title VI I disparate impact claim for failure to exhaust 11 administrative remedies. 12 DISCUSSION 13 We review de novo a grant of a motion to dismiss under Rule 12(b)(6), accepting as true 14 all well-pleaded allegations in the complaint and drawing all reasonable infe rences in plaintiffs’ 15 favor. Anschutz Corp. v. Merrill Lynch & Co. , 690 F.3d 98, 107 (2d Cir. 2012). However, the 16 complaint “must contain sufficient factual matter . . . to state a claim to relief that is plausible on 17 its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 18
I 19 To state a discrimination claim under th e Fourteenth Amendment Equal Protection 20 Clause and/or § 1981, plaintiffs must sufficiently allege that defendants acted with 21 discriminatory intent. Gen. Bldg. Contractors Ass’n v. Pennsylvania , 458 U.S. 375, 391 (1982). 22 Here, plaintiffs fail to allege in other than conclusory fashion any specific instances of 237 discrimination with respect to any individual plaintiff or others similarly situated. Indeed, each 1 plaintiff has at some point been promoted from a sanitation worker to supervisor, and five of the 2 nine were subsequently promoted to general superintendent level 1. While the SAC generally 3 alleges with respect to seven plaintiffs that they have been passed over for subsequent 4 promotions while White individuals, who were a llegedly less qualified, were promoted, the SAC 5 fails to provide meaningful specifics of the alleged difference in qualifications, let alone 6 discriminatory intent. With respect to the other two plaintiffs, plaintiffs Burgos and Duncan, the 7 SAC alleges even less. It simply alleges that plaintiff Burgos was promoted to supervisor in 8 2006, has taken the exam for general superintendent level 1, and is curren tly on the list for 9 promotion. Plaintiff Duncan, it alleges, was promoted to supe rvisor but subsequently was 10 demoted during a probationary period while White i ndividuals in an allegedly similar situation 11 were not demoted. 12 These bare allegations do not present circumstances that “give rise to an inference of 13 unlawful discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 253 (1981). 14 Without any specificity as to the qualificati ons considered for each position and without any 15 reference to specific statements or individual circumstances that suggest discriminatory 16 treatment, plaintiffs’ allegations do not support a finding that defendants acted with a 17 discriminatory purpose. For all that one can tell from the SAC (plaintiffs’ “third bite at the 18 apple”), it is equally possible th at plaintiffs have not been prom oted for valid, non-discriminatory 19

reasons. See Iqbal , 556 U.S. at 678 (“Where a complaint pleads facts that are merely consistent 20 with a defendant’s liability, it st ops short of the line between po ssibility and plausibility of 21 entitlement to relief.” (internal quotation marks omitted)). 228 Plaintiffs argue, however, that statistics alone may be suffi cient to warrant a plausible 1 inference of discriminatory intent if they show a pattern or practice that cannot be explained 2 except on the basis of in tentional discrimination. This is an issue of first impression for this 3 Circuit in the context of a putative class acti on alleging employment di scrimination under § 1981 4 and/or the Equal Protection Clause. 5 We now hold that, as some of our Title VII cases have 5 hinted, in certain circumstances (described below), statistics alone may be sufficient. Cf. United 6 States v. City of New York , 717 F.3d 72, 84 (2d Cir. 2013) (noting that while, in a Title VII 7 disparate treatment pattern or practice case, “i nstances of discrimina tion against particular 8 employees are relevant to show a policy of inte ntional discrimination, they are not required; a 9 statistical showing of disp arate impact might suffice”); see also Hudson v. Int’l Bus. Machines 10 Corp. , 620 F.2d 351, 355 (2d Cir. 1980) (stating, in a case preceding Iqbal , that “in class actions 11 alleging racially discriminatory employment prac tices, statistical evidence may establish a prima 12 facie case of discriminatory effect”). However, to show discriminatory intent in a § 1981 or 13 Equal Protection case based on statistics alone, the statistics must not only be statistically 14 significant in the mathematical sense, but they must also be of a level that makes other plausible 15 non-discriminatory explanations very unlikely. Cf. Hazelwood Sch. Dist. v. United States , 433 16 U.S. 299, 307–08 (1977) (holding that to “constitute prima facie proof of a pattern or practice of 17 discrimination,” a plainti ff must show “gross statistical disparities”); Ottaviani v. State Univ. of 18 New York at New Paltz , 875 F.2d 365, 371 (2d Cir. 1989) (“The threshold question in [Title VII 19

5 We have held that statistics alone are not sufficient to allege discriminatory intent in § 1981 or Equal Protection cases brought by an i ndividual only on her own behalf, Martin v. Citibank, N.A. , 762 F.2d 212, 218 (2d Cir. 1985), or in cases brought against a state official in her individual capacity, Reynolds v. Barrett , 685 F.3d 193, 204–05 (2d Cir. 2012). In these situations, we have held, broad statistical evidence, without ev idence of specific instances of discrimination, is not relevant to whether any specif ic individual acted with discriminatory intent or whether any specific individual was the target of discrimination.9 pattern-or-practice] disparate treatment cases, then, is: “At what point is the disparity in selection 1 rates sufficiently large, or the probabil ity that chance was the cause sufficiently low , for the 2 numbers alone to establish a legitimate inference of discrimination?’” (quoting Palmer v. Shultz , 3 815 F.2d 84, 92 (D.C. Cir. 1987) (alterations omitted))). 6 4 In the instant case, plaintiffs have failed to allege statistics that meet the standards 5 articulated above. Among other shortcomings, the statistics provided by plaintiffs show only the 6 raw percentages of White, Black, and Hispanic individuals at each employment level, without 7 providing any detail as to the number of indi viduals at each level, the qualifications of 8 individuals in the applicant pool and of those hired for each position, or the number of openings 9 at each level. See Lomotey v. CT Dep’t of Transp. , 355 F. App’x 478, 481 (2d Cir. 2009) 10 (summary order) (“[Plaintiff’s] evidence that only Caucasians were selected for [job] placements 11 amounts to nothing more than raw numbers which, without further information on key 12 considerations such as the racial composition of the qualified labor pool, cannot support an 13 inference of discrimination.”). 14 Furthermore, the fact that each of the plainti ffs has been promoted at some point to the 15 position of supervisor undermines their allegati ons of discrimination in the promotion of 16 sanitation workers to supervisors. Five of the ni ne plaintiffs have also been promoted from 17 supervisor to general superinte ndent level 1, again calling in to doubt their allegations of 18 discrimination at that phase, especially given th at the racial composition between individuals in 19

6 In Hazelwood , the Supreme Court held that measuring th e significance of statistical disparities “involves calculation of the ‘stand ard deviation’ as a measure of predicted fluctuations from the expected value of a sample.” 433 U.S. at 308 n.14 . As a general rule, “if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that [the alleged discriminatory acti on was taken] without regard to race would be suspect.” Id. (internal quotation marks omitted); see also Ramona L. Paetzold & Steve L. Willborn, The Statistics of Discrimination § 4:11 (2014).10 the supervisor and general superint endent level 1 positions is essentially the same. While there is 1 an increase in racial and nati onal origin disparities between ge neral superintendent level 1 and 2 levels 2 and 3, the racial composition returns at le vel 4 to essentially the same percentage as at 3 level 1. 7 Accordingly, the district court’s decision gr anting defendants’ mo tion to dismiss the 4 Equal Protection and § 1981 claims is affirmed. 8 5
II 6 Turning to plaintiffs’ Title VII claim, here di scriminatory intent need not be alleged in a 7 case based on so-called “disparate impact.” But we need not decide whether plaintiffs’ statistics 8

7 Plaintiffs alternatively argue that the “rule of exclusion” test established in Castaneda v. Partida , 430 U.S. 482 (1977), applies here. Under this test, in asserting a claim of discrimination in the composition of grand juries, a plaintiff mu st 1) show that the group is a “recognizable, distinct class, singled out for different treatme nt under the laws,” and 2) prove the degree of underrepresentation “by comparing the proportion of the group in the to tal population to the proportion called to serve . . . , ove r a significant period of time.” Id. at 494. This rule is hardly applicable here, where individuals are not promoted at random from the general population, but are considered for promotion on the basis of their individual qualifications. “When special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of i ndividuals who possess the necessary qualifications) may have little probative value.” Hazelwood , 433 U.S. at 308 n.13.

8 Plaintiffs’ § 1981 claim and Equal Protection claim (asserted under § 1983) against the City and defendant Doherty in his official capacity also fail, because they have not alleged the discriminatory practice was caused by a municipa l policy, custom or practice. “[W]hen the defendant sued for discrimination under § 1981 or § 1983 is a municipality—or an individual sued in his official capacity—the plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom.” Patterson v. Cty. of Oneida , 375 F.3d 206, 226 (2d Cir. 2004) (internal citations omitted). Here, plaintiffs again rely on statistical evidence to infer a municipal policy of discrimination. For the same reasons discussed above, the statistics are not sufficient to give rise to an inference of discriminatory intent, and, as the district court found, plaintiffs do not even describe the disc riminatory policy, custom, or practice on which their complaint is based. Their conclusory alle gations that defendant Doherty knew about the discriminatory practice, without any allegation as to how he knew or should have known of it is not sufficient to establish a custom or policy. Furt hermore, when compared to the fact that the statistical allegations are insufficient to show discriminatory intent on the part of the municipality, they are likewise insufficient to show liability by Doherty in his individual capacity. See Reynolds , 685 F.3d at 204–05. Accordingly, the di strict court’s dismissal of the case against him indivi dually is affirmed.11 show any disparate impact, because we agree with the district court that the Title VII claim must 1 be dismissed for failure to e xhaust administrative remedies. 2 To bring a claim under Title VII, a plaintiff must first have filed a complaint with the 3 Equal Employment Opportunity Commission (“EEO C”) or a state equiva lent—here, the New 4 York State Division of Human Rights (“SDHR”). See 42 U.S.C. § 2000e-5. Courts may only 5 hear claims “reasonably related” to allegations set forth in the administrative complaint. Kirkland 6 v. Buffalo Bd. of Educ. , 622 F.2d 1066, 1068 (2d Cir. 1980). 7 Here, plaintiffs Burgis and Burgos submitted complaints of racial discrimination to the 8 SDHR and received letters to sue from the EEOC . However, plaintiff Bu rgos’s administrative 9 complaint does not allege discrimination in defe ndants’ promotion practices. And while plaintiff 10 Burgis’s complaint alleges that she was discriminated against on the basis of race when 11 defendants removed her as general superintendent level 1 for approximately three years before 12 giving her another assignment, a nd by failing to promote her to level 2 when the White male who 13 initially replaced her was promoted, her complaints of individualized disparate treatment are not 14 reasonably related to a Title VII disparate imp act claim alleging class- wide discrimination. 15 Woodman v. WWOR-TV, Inc. , 293 F. Supp. 2d 381, 390 (S.D.N.Y. 2003), aff’d , 411 F.3d 69 (2d 16 Cir. 2005). 9 Accordingly, plaintiffs failed to exhaust administrative remedies prior to filing the 17 Title VII disparate impact claim in this action, a nd the district court order dismissing plaintiffs’ 18 Title VII claim is affirmed. 19

9 In an appropriate case, the facts pleaded in an administrative charge may well encompass a disparate impact claim even if th e plaintiff has only “labeled” her claim as “disparate treatment.” To be reasonably related, a claim must be one th at reasonably would be e xpected to fall within the scope of the conduct complained of in the administrative charge. See Ximines v. George Wingate High Sch. , 516 F.3d 156, 158–59 (2d Cir. 2008) (per curiam). Here, however, the conduct about which Burgis and Burgos complained to the SDHR would not reasonably have led that agency to investigate—beyond the facts of th eir individual cases—the effects on a protected class of DSNY’s promotional practices.12 CONCLUSION 1 For the reasons set forth above, the judgment of the district c ourt is AFFIRMED. 2