The Dugger Law Firm, PLLC: Former Mayor’s Office of Appointments Special Counsel and Deputy Director of Vetting Martha Perez-Pedemonti Files Discrimination and Retaliation Class Action Against NYC

Former Mayor’s Office of Appointments (“MOA”) Special Counsel and Deputy Director of Vetting Martha Perez-Pedemonti has filed an individual and class action complaint against the City of New York (“NYC”), former Director and Principal EEO Officer for MOA Joni Kletter (“Kletter”), NYC Law Department EEO Officer Sosimo Fabian (“Fabian”), and NYC Agency Counsel Michael Levario (“Levario”).

Filed pursuant to the Family and Medical Leave Act (“FMLA”), Section 1981, Section 1983, and the New York City Human Rights Law (“NYCHRL”), the twelve-count complaint includes individual claims for: (1) race, ancestry, color, and race and/or ancestry-plus gender discrimination, hostile work environment, and stereotyping discrimination; (2) retaliation; (3) interference with FMLA and NYCHRL rights; (4) NYCHRL aiding and abetting and attempted aiding and abetting liability; and (5) NYCHRL disparate impact liability.

The complaint’s allegations include that Defendants NYC and Kletter discriminated against Ms. Perez-Pedemonti because of her Hispanic and/or Hispanic female identity (and/or color), and/or retaliated against her because of her complaints of discrimination and/or retaliation at MOA, including by failing to promote her in favor of Defendant Levario, demoting her, stripping her of job duties, and/or attempting to force her to sign a confidentiality agreement, as well as by creating a discriminatory hostile work environment.  The complaint further alleges FMLA retaliation and interference claims against Defendants NYC and Kletter.

Beyond the allegations of discrimination and retaliation directed at Ms. Perez-Pedemonti, the complaint further alleges that Defendant Kletter: (1) agreed that “‘three Muslims’ were ‘too many’” for a Civic Engagement Commission and then had two Muslims removed from contention for the candidate pool; (2) responded inappropriately to a sexual harassment complaint against Defendant Levario that Ms. Perez-Pedemonti had reported to Defendant Kletter, as MOA’s EEO Officer, on behalf of a female subordinate; (3) mocked current Commissioner Everardo Jefferson for having a Spanish accent during a practice interview when he was a candidate for the City’s Landmarks Preservation Commission; (4) repeatedly discriminated against MOA’s Black female former Legal Director; and (5) told Ms. Perez-Pedemonti that she considered MOA’s former Legal Director’s taking of FMLA leave to have been “insubordination.”  Ms. Perez-Pedemonti additionally alleges that she was retaliated against after she complained about some of this discriminatory and/or retaliatory conduct, as well as following her complaint to human resources of a “culture of racial and ethnic discrimination at MOA.” 

In addition to individual claims, Ms. Perez-Pedemonti alleges class claims, for injunctive and declaratory relief, on behalf of all NYC employees who filed EEO complaints against a Commissioner, Head of Agency, and/or EEO Officer.  Specifically, the complaint alleges, a pattern or practice, in violation of the NYCHRL, of retaliation, interference, and/or aiding and abetting of NYCHRL violations, and in violation of  Section 1981 concerning a pattern or practice of retaliation, by the NYC Law Department and/or its EEO Officer Sosimo Fabian, against NYC employees who made EEO complaints against Commissioners, Heads of Agencies, and/or EEO Officers that were referred to the Law Department for resolution.  The complaint alleges these violations occurred through the Law Department and/or Fabian: (1) issuing findings that their EEO complaints were “unsubstantiated”; (2) conducting bad faith investigations of EEO complaints; (3) conducting pre-determined investigations of EEO complaints; (4) failing to accurately communicate the actual results of EEO complaint investigations; and/or (5) failing to properly, fully, and/or fairly investigate employee complaints of discrimination and retaliation.

The complaint additionally alleges a disparate impact on NYC employees who made EEO complaints against Commissioners, Heads of Agency, and/or EEO Officers, as a result of NYC’s applicable EEO policies, including: (1) referral of such EEO complaints to the Law Department for resolution; and/or (2) the Department of Citywide Administrative Services’ (“DCAS’s”) issuance of EEO guidelines and policies that did not provide clear standards for resolution of EEO claims and/or that did not accurately reflect the legal standards specific to the NYCHRL.  The complaint alleges that these, and other EEO policies, resulted in a disparate impact on the class through disproportionate rates of discipline, resignation, and/or termination.

The complaint further alleges that, in violation of Section 1983, the City has, on a class-wide basis, failed to adequately train and/or supervise Commissioners, Heads of Agency, EEO Officers, including regarding: (1) appropriately identifying potential discrimination and retaliation violations (including oral complaints); and (2) refraining from retaliating and/or instructing others to refrain from retaliating against NYC employees who made EEO complaints concerning Commissioners, Agency Heads, and/or EEO Officers.  It further alleges that NYC had a policy or practice of retaliation against employees who made sex discrimination, race discrimination, or related retaliation EEO complaints against Commissioners, Agency Heads, and/or EEO Officers.

Ms. Perez-Pedemonti’s complaint, in addition to seeking individual relief, seeks a class-wide injunction requiring the reevaluation of EEO complaints against Commissioners, Heads of Agency, and EEO Officers, that the Law Department previously found to be “unsubstantiated,” during the relevant class period, as well as prospective evaluation of such future EEO complaints, by an independent body such as an independent office, ombudsman, or the NYC Office of the Public Advocate.

Perez-Pedemonti v. The City of New York et al., No. 1:22-cv-06180 (NRB) (JW), is proceeding in the United States District Court for the Southern District of New York before the Honorable Naomi Reice Buchwald.

Media Contact: Cyrus E. Dugger, The Dugger Law Firm, PLLC, (646) 560-3208, cd@theduggerlawfirm.com

The Consumer Financial Protection Bureau Just Made Your Life Better

So many times better:

"The nation’s consumer watchdog is unveiling a proposed rule on Thursday that would restore customers’ rights to bring class-action lawsuits against financial firms, giving Americans major new protections and delivering a serious blow to Wall Street that could cost the industry billions of dollars." (link)

In the words of Richard Cordray, director of the Consumer Financial Protection Bureau:

“Many banks and financial companies avoid accountability by putting arbitration clauses in their contracts that block groups of their customers from suing them.” (link)

As noted in a previous post covering The Nation's article How Consumers Are Getting Screwed by Court-Enforced Arbitration -- yes -- unfortunately -- this applies to you.

CVS Store Detectives File Race Discrimination Class Action Alleging Forced Racial Profiling of Black and Latino Shoppers

As reported in the NY Times:

"Four former store detectives employed by CVS in New York filed a class-action lawsuit against the drugstore chain on Wednesday, accusing their bosses of ordering them to target black and Hispanic shoppers.

The lawsuit, filed in Federal District Court in Manhattan, also alleged that the detectives were fired after they complained about racial discrimination, against both customers and themselves.

The plaintiffs, all of whom are either black or Hispanic, contend in their suit that two supervisors in CVS’s loss-prevention department, overseeing stores in Manhattan and Queens, regularly told them to racially profile nonwhite shoppers. The suit says that one of the supervisors, Anthony Salvatore, routinely told subordinates that “black people always are the ones that are the thieves,” and that “lots of Hispanic people steal.” The second supervisor, Abdul Selene, frequently advised detectives, known at CVS as market investigators, to “watch the black and Hispanic people to catch more cases,” the suit said." (keep reading)

The Dugger Law Firm, PLLC & Outten & Golden LLP File Sex Discrimination Class Action Against Connecticut Department of Correction

On January 14, 2015, Denisha Davis filed a sex discrimination class action complaint in the District of Connecticut against the Connecticut Department of Correction. 

The lawsuit follows earlier litigation in Easterling v. Connecticut Department of Correction, in which a federal court held in 2011 that the state fitness test violated Title VII and found for the job applicant plaintiffs.  The new lawsuit alleges that the state’s revised physical fitness test – which modified only one aspect of the test from a 1.5-mile run to a 300-meter dash – continued to have an adverse impact on women.

 The press release is available here.

Joe’s Crab Shack Managers Overcome Class Hurdles to Move Forward with Class Certification of Misclassification Case

A helpful overview from JDSupra that notes how the court addressed common class certification disputes issues is available here (excerpt below):

Although some of the plaintiffs could not accurately account for the exact amount of time spent performing non-exempt tasks, the court noted that “courts in overtime exemption cases must proceed through an analysis of the employer’s realistic expectations and classification of tasks rather than asking the employee to identify in retrospect whether, at a particular time, he or she was engaged in an exempt or nonexempt tasks.”  It stated that “[b]y refocusing its analysis on the policies and practices of the employer and the effect those policies and practices have on the putative class, as well as narrowing the class if appropriate, the trial court may in fact find class analysis a more efficient and effective means of resolving plaintiffs’ overtime claims.” (link)

SDNY Courts Converging Around Liability Only Class Certification?

From David M. McMillan:

In what appears to be an increasingly common practice since the Supreme Court decided Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), the Southern District of New York recently certified a class as to liability, but rejected certification as to damages.  Fort Worth Employees' Retirement Fund v. J.P. Morgan Chase & Co., — F.R.D. —-, 2014 WL 4840752, 09-3701 (JPO) (S.D.N.Y. Sep. 30, 2014).  Taking a cue from Comcast, the Court held that the predominance requirement for class certification—that "questions of law or fact common to class members predominate over any questions affecting only individual members," see Fed. R. Civ. P. 23(b)(3)—requires plaintiffs to specify a damages methodology that can be utilized for the entire class.  The plaintiffs, investors in certain mortgage-backed securities issued by JP Morgan Chase & Co. and related entities (collectively "JPM"), failed to adequately specify the methodology they planned to use to value the securities at issue.  The Court therefore rejected certification as to damages and placed responsibility on each class member to prove damages on a member-by-member basis.  The Court, however, found that the plaintiffs proved predominance as to liability and certified the class for that limited purpose. (continue reading).

Aunt Jemima No Longer Smiling

The heirs of Anna S. Harrington, the woman portrayed as Aunt Jemima on Aunt Jemima pancakes products for approximately 80 years, have filed a class action alleging Quaker Oates intentionally withheld royalties associated with the use of her likeness:

"In their suit, D.W. Hunter and Larnell Evans say Quaker Oats representatives discovered their great-grandmother, Anna S. Harrington, making pancakes at the New York State Fair in 1935.

Harrington portrayed the character in commercials and other public appearances for 15 years.

The suit says Quaker Oats used Harrington's pancake recipes and trademarked her likeness as the character 'Aunt Jemima' in 1937.

The great-grandsons say Quaker Oats exploited Harrington with the intent of not paying royalties toward her estate after her death in 1955. They claim the companies conspired not to acknowledge Harrington's status as an employee of Quaker Oats by saying they could not find any employment records or images of her. But they say, Quaker Oats had her image deposited with the United States Patent and Trademark Office.

Harrington's family, according to the complaint, filed the suit after it was able to obtain a death certificate that listed Quaker Oats as Harrington's employer." (link).

The suit also alleges that Quaker Oates wrongfully took Harrington's pancake recipes and racially discriminated against her and her family.  Plaintiffs seek $2 billion in damages.

Letterman Probably Not Laughing in Light of Unpaid Intern Class Action

Probably not laughing at all:

"ICM Partners might be happy to hear today that they are not the latest industry enterprise to be hit with an interns lawsuit, but it’s a good bet CBS and The Late Show With David Letterman are not. The network and the late-night show have been walloped with a class action of their own: Late last week, Mallory Musallam filed a class action complaint against CBS Broadcasting, CBS Corp. and the retiring late-night host’s Worldwide Pants on behalf herself and everyone who has ever been an intern on the show. 'Named Plaintiff has initiated this action seeking for herself, and on behalf of all similarly situated employees that also worked on The Late Show With David Letterman, all compensation, including minimum wages and overtime compensation, which they were deprived of, plus interest, attorneys’ fees, and costs,' says the jury demanding filing in New York Supreme Court (read it here)." (link)

Will CBS and Letterman go the way of Charlie Rose and his production company and get ahead of this unpaid intern lawsuit (Rose settled early on in litigation for $110,000), go the way of Fox Searchlight and litigate, lose, appeal, and then cross their fingers, or win and face appeal as in the Hearst unpaid intern litigation?

We shall soon see.

Barclays Accused of Predatory Lending Targeting Minority Homeowners in NYC

The story is available here, the class action complaint filed by MFY Legal Services is available here, and the press release is excerpted below:

"Plaintiff Tony Wong, a long-time Staten Island homeowner and school security officer for the New York City Police Department, alleges he fell prey to Barclays’ scheme to market risky, predatory mortgages in New York City’s minority neighborhoods. He claims that in September 2007, he was duped into refinancing with Barclays’ wholly owned subprime subsidiary EquiFirst Corporation.  With high monthly payments and an 11.075% interest rate, Mr. Wong’s mortgage was engineered to fail but only after his savings ran dry in his attempt to keep up with the mortgage payments. 

According to publicly available records, Mr. Wong was not the only minority who received a disastrous EquiFirst loan. During the year Mr. Wong’s loan was originated, the vast majority of the predatory loans EquiFirst issued in the New York City area were for homes in minority neighborhoods. Taking advantage of New York’s segregated housing market, Barclays, through EquiFirst, sold nearly 50% of its predatory loans to homeowners who lived in neighborhoods with 80 percent or greater minority populations. Mr. Wong’s home is located in a neighborhood that is now 69 percent minority and was 56 percent minority in 2007. These subprime mortgages were largely bundled, securitized and sold on Wall Street by investment banks like Barclays in the form of mortgage-backed securities. (link)"

MFY attorney Elizabeth M. Lynch explains:

“This lawsuit demonstrates that the profits Barclays made in the housing market run-up in the mid-2000s came on the backs of minority borrowers in New York City like Mr. Wong,” said Elizabeth M. Lynch, a staff attorney at MFY. “Barclays should be held responsible for its fraudulent conduct, and borrowers like Mr. Wong should be made whole for the suffering Barclays caused them. While the media touts the recovery of the housing market, communities of color are still reeling from the effects of the mortgage crisis.” (link)