Assistant Deputy Wardens/Deputy Wardens et al v. The City of New York et al
MEMORANDUM AND ORDER: Defendants motion 31 to dismiss plaintiffs complaint under FRCP 12(b)(6) on the grounds of res judicata and for failure to state a claim is granted in part and denied in part. The Court holds that res judicata is not applicable and plaintiffs disparate-impact discrimination claims survive and all other claims are dismissed. Ordered by Judge Frederic Block on 4/22/2016. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ASSISTANT DEPUTY WARDENS/
DEPUTY WARDENS ASSOCIATION,
for itself and on behalf of its members;
SIDNEY SCHWARTZBAUM, as
President of the Assistant Deputy
MEMORANDUM AND ORDER
Wardens/Deputy Wardens Association;
14-CV-4308 (FB) (JO)
PAMELA WALTON, MERVIN O.
BATSON, BRENDA ROSS AND
WILLIAM DIAZ, individually and on
behalf of all similarly situated members of
the Assistant Deputy Wardens/Deputy
-againstTHE CITY OF NEW YORK; THE NEW
YORK CITY DEPARTMENT OF
CORRECTION; MAYOR WILLIAM DE
BLASIO and NEW YORK CITY
DEPARTMENT OF CORRECTION
COMMISSIONER JOSEPH PONTE, in
their individual and official capacities,
For the Plaintiffs:
PAUL S. LINZER, ESQ.
STEPHEN MCQUADE, ESQ.
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue, 9th Floor
East Meadow, New York 11554
For the Defendants:
ZACHARY W. CARTER, ESQ.
Corporation Counsel for the City of
STEPHEN P. PISCHL, ESQ.
Assistant Corporate Counsel
100 Church Street, Rm 2-142
New York, New York 10007
BLOCK, Senior District Judge:
Defendants move to dismiss plaintiffs’ complaint under FRCP 12(b)(6) on the
grounds of res judicata and for failure to state a claim. The court holds that res judicata
is not applicable and plaintiffs’ disparate-impact discrimination claims survive.
This litigation marks the third attempt by plaintiff Assistant Deputy
Wardens/Deputy Wardens Association (“DWA”) to obviate the application of a rule
promulgated by the defendant New York City Department of Correction (“DOC”)–Rule
3.10.160(E)–which places a one-year cap on compensation for accumulated
compensatory time for all of DOC’s employees, including those represented by the
DWA, upon the termination of their employment.1
The First Attempt
The first attempt arose in an arbitration proceeding between the DWA, on behalf
of its members, and the defendants City of New York and the DOC, pursuant to their
Collective Bargaining Agreement (the “CBA”). There, in denying a grievance brought
by the DWA challenging the application of the Rule to DWA employees, the arbitrator,
DOC Rule 3.10.160(E) provides in relevant part: “the total paid to any
employee upon termination of services or upon retirement, for accrued annual
leave, accrued overtime and terminal leave granted in accordance with the
provision prescribed herein shall not exceed payment of twelve (12) months of
as a matter of contract interpretation, held that the Rule was “made part of the labor
agreement by virtue of the grievance procedure;” thus “the [DOC] did not violate [the
CBA] when it applied [the Rule].” ECF No.32-1 (Arbitration Award), at 17, 19. The
arbitrator noted, however, that the DWA raised a “serious challenge to the applicability
of the rule based on [matters of] equity.” Id. at 17. She found that deputy wardens were
working an increased number of overtime hours, were assigned more than one
discipline, and were working 10-14 hour days. Regardless, the arbitrator was
“constrained” to limit her authority to the resolution of the grievance under the CBA.
The Second Attempt
The DWA brought an Article 75 proceeding in the New York Supreme Court to
vitiate the arbitrator’s award under CPLR 7511(b)(1)(iii) on the ground that it “was
irrational and against public policy.” ECF No. 32-3 (N.Y. Supreme Court Decision),
at 5. The court disagreed, noting that “[t]he Court of Appeals has held this subsection
is only applicable where the arbitrator’s award ‘is totally irrational or violative of a
strong public policy and thus in excess of the arbitrator’s powers.” Id. at 6 (citation
omitted) (emphasis added). In finding the award not to be irrational, the court simply
held that “[w]hile Deputy Wardens would have preferred a different result, the CBA
did not compel one.” Id. at 8.
Turning to the public policy issue, the court first correctly articulated the
applicable standard: “[t]o vacate the award, petitioner must show, without engaging in
extended factfinding or legal analysis that an identifiable public policy exists,
embodied in statute or decisional law, which prohibited the arbitrator , in an absolute
sense.” Id.(alteration in original) (emphasis added) (quoting Matter of Selman v. State
of New York Dept. Of Correctional Servs., 773 N.Y.S.2d 364, 364 (1st Dept. 2004)).
The DWA argued that capping compensatory time upon retirement “violate[d] the
strong public policy that employees receive remuneration for all overtime worked”
under “the Fair Labor Standards Act, as well as State and City labor laws.” Id. The
court held, however, that those laws did not reflect a public policy “that prohibited [the
arbitrator] from reaching the decision that she reached.” Id.
The Third Attempt
Ever resourceful, the DWA has now brought the present federal lawsuit, trotting
out yet different reasons for vitiating the arbitrator’s award. It now alleges that the cap
embodied in Rule 3.10.160(E) discriminates against the DWA’s members under Title
VII, 42 U.S.C §2000e, et seq., and comparable State and City statutes, as well as under
section 19812 and the Equal Protection Clause, because “between 80 and 90 percent of
[deputy wardens] are females and minorities, such as Hispanic-Americans, and AsianAmericans,” Compl. ¶ 113, whereas, allegedly similarly situated “employees working
The Supreme Court has construed 42 U.S.C. § 1981 “to forbid all ‘racial’
discrimination in the making of private as well as public contracts.” Saint Francis
Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987).
in the ranks of Captain and Deputy Inspector within the New York City Police
Department and/or Battalion Chief and Deputy Chief within the New York City Fire
Department,” who are not subject to the cap, “generally do not fall within the status of
a protected class, as recognized by applicable federal and state anti-discrimination
statutes.” Compl. ¶ 89.
Specifically, as alleged in the complaint, the cap is a city-wide policy that affects
all New York City employees; however, it is presumably subject to changes based on
citywide labor agreements. Although, the DOC, in enacting Rule 3.10.160(E), chose
to implement the cap and–as the arbitrator found–made it part of its collective
bargaining agreement with the DWA, employees of the NYPD and FDNY are not
bound by that arbitrator’s award, and the cap is not otherwise applied to them.
Now joining the DWA–suing on its own behalf, as well as on behalf of all its
members–as plaintiffs, are its president, as well as two representative members of the
alleged protected class.3 In addition to the City and the DOC, they have joined Mayor
DeBlasio and DOC Commissioner Joseph Ponte, in their individual and official
capacities. Plaintiffs seek pecuniary and non-pecuniary damages.
Pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii), plaintiffs Pamela Walton and
William Diaz stipulated to the voluntary dismissal of their claims with prejudice.
See ECF No. 50, Nov. 30, 2015.
The essence of plaintiffs’ complaint is that the application of the Rule has a
disparate impact on them because of their protected status as minorities and females
when compared to allegedly other similarly situated NYPD and FDNY employees who
are not principally minorities or females. Plaintiffs also claim that the application of the
Rule constitutes disparate treatment under Title VII and various State and City laws,
is cognizable under Section 1981, and is violative of the Equal Protection clause,
As for the disparate-treatment claims, they are not since they each require
plausible allegations of intentional discrimination. See Ricci v. DeStefano, 557 U.S.
557, 577 (2009)(under Title VII “[a] disparate-treatment plaintiff must establish ‘that
the defendant had a discriminatory intent or motive’ for taking a job related action”);
Burgis v. New York City Dept. Of Sanitation, 798 F.3d 63, 68 (2d Cir. 2015)(under
§1981 plaintiffs must “sufficiently allege that defendants acted with discriminatory
intent.”); Patterson v. Cty of Oneida, N.Y., 375 F.3d 206, 226, 27 (2d Cir.
2004)(citations omitted) (“a plaintiff pursuing violation of § 1981 or denial of equal
protection under § 1983 must show that the discrimination was intentional”); Brown v.
City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (same for New York Human Rights
Law disparate-treatment claims); Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
715 F.3d 102, 110 (2d Cir. 2013) (same for New York City Human Rights Law
disparate-treatment claims). It cannot plausibly be maintained that the enactment of the
Rule by the DOC was intended to discriminate only against DWA minorities or women,
since it applies to all DOC employees alike.
The disparate-impact claim is arguably different. In asserting that the alleged
citywide policy capping compensatory compensation has been applied to them by the
City - through the enactment by DOC of the Rule - but not to similarly situated
members of the Police and Fire Departments, plaintiffs have satisfied the threshold
pleading standard under Iqbal. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”); see Tsombandis v. West Haven Fire Hepartment, 352 F.3d 565, 76-77 (2d
Cir. 2003) (to demonstrate disparity, plaintiffs “must first identify members of a
protected group that are affected by the neutral policy and then identify similarly
situated persons who are unaffected by the policy.”) (emphasis added).4
Plaintiffs’ disparate-impact claims are somewhat attenuated and may not survive
summary judgment since it may be difficult to establish the requisite “causal
relationship” between the challenged practice or policy and the alleged disparity.
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001). This
It is unclear from the complaint whether the plaintiffs intended to plead
state and city law disparate-impact claims. However, because they are cognizable,
and the analysis is the same under Federal law, Collette v. St. Luke’s Roosevelt
Hosp., 132 F. Supp. 2d 256, 275 (S.D.N.Y. 2001), the Court construes the
complaint to include such claims.
will undoubtedly require statistical evidence and analysis, and “[t]he statistics must
reveal that the disparity is substantial or significant,” and “must be of a kind and degree
sufficient” to satisfy causation. Id. (internal quotations removed); Chin v. Port
Authority of New York & New Jersey, 685 F.3d 135, 151 (2d Cir. 2012).
But for present purposes, the disparate-impact claims survive. In addition to
satisfying the minimal pleading requirement under Iqbal, they cannot be barred by res
judicata. The public policy ground for vacating an arbitration award in an Article 75
proceeding is “narrow.” See Matter of New York City Trans. Auth. v. Transport
Workers Union of Am., Local 100, AFL-CIO, 99 N.Y.2d 1, 6-7 (2002). As the state
court aptly observed, it is not the province of an Article 75 proceeding in considering
the public policy exception to engage in “extended factfinding or legal analysis.” See
ECF No. 32-3 (N.Y. Supreme Court Decision), at 8 (citing Selman, 773 N.Y.S.2d at
364). Yet, that would be exactly what the state judge would be required to do in
analyzing plaintiffs’ disparate-impact claims and determining whether the plaintiffs
have adduced the requisite factual evidence to establish causation. See Matter of Hirsch
Const. Corp. v. Cooper, 585 N.Y.S.2d 418, 420 (1st Dept. 1992) (“the courts will not
vacate an arbitration on public policy grounds where, as here, there ‘is nothing on the
face of the award to indicate that it violates the public policy against recovery by
unlicensed home improvement contractors.” (emphasis added)(internal citations
The Federal and State disparate-impact claims survive. All other claims are
/S/ Frderic Block____________
Senior United States District Judge
Brooklyn, New York
April 22, 2016
Application of res judicata is further not warranted because there are
additional plaintiffs, defendants, and claims for compensatory damages here that
were not present or at issue in the narrow Article 75 proceeding.
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