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

New York's Redlining Race Discrimination Remix

These days the most common claims of lending discrimination have been "reverse redlining" cases.

But the NY Attorney General is hot on the trail of apparently resurgent good-old-fashioned redlining discrimination.  The AG filed a suit for discriminatory redlining practices against the parent company of Hamburg-based Evans Bank -- and has described the alleged redlining as a textbook example of an illegal redlining policy:

“This is classic redlining,” Schneiderman said, tracing his finger around the boundary. “If you had to make up a hypothetical to explain to law students what redlining is, you would use a map like this.”

Schneiderman also cited statistics showing that from 2009 to 2012, Evans received 1,114 applications for residential mortgages in the Buffalo metro area, but only four were from African-American applicants. He also said of those 1,114 applications, only eight came from the East Side and just one of those was from an African-American. Schneiderman said that competing banks were lending at much higher rates." (link)

Here's the relevant map of Evan's lending:

To be blunt, this map does very much look like it could be in a lending discrimination textbook.

Moreover, it looks like there's more good-old-fashioned redlining litigation to come:

“We are looking at other banks in other parts of the state, and if banks do not agree to resolve these really disgraceful practices, then there will be further litigation,” Schneiderman said at a news conference in his Buffalo office." (link)

Stay tuned for some discrimination classic hits!

Donna Ballman: Can I Be Fired Because My Boss Knows I'll Be Leaving?

A thoughtful discussion of a tricky issue by Donna Ballman.

EEOC Settles ADA Leave Suit for $1.35 Million With Princeton Healthcare

The EEOC has settled another ADA leave as a reasonable accommodation case.

Princeton HealthCare System, which operates the University Medical Center of Princeton at Plainsboro and several other medical facilities, will pay $1.35 million and will undertake significant remedial measures to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission, the agency announced today.

The EEOC’s suit alleged that the hospital’s fixed leave policy failed to consider leave as a reasonable accommodation, in violation of the Americans with Disabilities Act. According to the EEOC, Princeton HealthCare’s leave policy merely tracked the requirements of the federal Family Medical Leave Act and employee leaves were limited to a maximum of 12 weeks. The policy meant that employees who were not eligible for leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks.

The EEOC filed suit in U.S. District Court for the District of New Jersey after attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, approved by U.S. Magistrate Judge Douglas E. Arpert, the hospital is prohibited from having a blanket policy that limits the amount of leave time an employee covered by the Americans with Disabilities Act may take.

. . .

Princeton HealthCare also agreed that it will not subject employees to progressive discipline for ADA-related absences, and will provide training on the Americans with Disabilities Act to its workforce. (link)

Subconscious Bias: College Professors at Top 250 Colleges More Likely to Respond to Emails From White Males

Whenever people get into a debate about the need (or lack thereof) for anti-discrimination laws I am always fascinated. 

While I firmly believe that anti-discrimination statutes are incredibly important the fact that some people disagree with me is not surprising at all. 

However, what I find fascinating are the reasons people give for disagreeing with me. 

What I have often found is that, while people in the abstract are against discrimination, and agree steps should be taken to oppose it, they tend to refuse to accept the notion that, however high-minded they may be, they too are susceptible to subconscious biases.

The result is a vague resistance to discrimination, but with an equally vague resistance to some of the measures used to fight subconscious biases that result in discrimination - including disparate impact civil rights statutes. 

These statutes provide that, even where there is no intentional discrimination, a protected group can still be subjected to discrimination because a policy has a disparate impact on that group -- and where the defendant cannot qualify for an exception -- for example in the employment law context where that policy is not job related and/or consistent with business necessity -- the policy will be found to be discriminatory.

These disparate impact statutes have been one of the best vehicles for addressing subconscious biases because they provide a methodology to remove the policies that may (often inadvertently) exacerbate the effects of such biases. 

To help underscore the importance of the above point I will provide a series of posts that address the application of subconscious biases in a variety of employment and other contexts.

The first, although not strictly an employment matter, is what I think was an ingenious demonstration of this issue.

A study sought to determine how professor response rates to emails from students varied based on the gender and ethnicity of the student.  The result, unfortunately, unsurprisingly, was that professors were significantly more likely to ignore emails from female students and/or students of color and respond to emails from white males (based on the usual gender and/or racial association of the name):

"A group of researchers ran this interesting field experiment. They emailed more than 6,500 professors at the top 250 schools pretending to be the students. And they wrote letters saying, I really admire your work. Would you have some time to meet? The letters to the faculty were all identical, but the names of the students were all different."

. . .

[W]hat they found was there were very large disparities. Women and minorities [were] systematically less likely to get responses from the professors and also less likely to get positive responses from the professors. Now remember, these are top faculty at the top schools in the United States and the letters were all impeccably written."  (link)

In short, "[w]hite men were more likely than women and minorities to receive a reply in every discipline except the fine arts, where the bias was reversed.” (link)

Business schools should take particular notice of this study:

"The business field showed the greatest disparity — 87 percent of white men received a response; compare this to only 67 percent of women and minorities who got a reply. Other disciplines such as computer science, engineering, and math also showed a significant bias against female and minority students." (link)

One of the most interesting aspects of the study is that Asian students experienced the greatest negative bias:

Previous studies of academia have shown a positive trend with Asians in higher education institutions.  Not this time.  “Among private university faculty the response rate for white men was 29 percentage points higher than for Chinese women — the greatest disparity observed . . . .” (link)

The researchers also found that "the greater the professor's salary, the greater the difference in response rate between white men and minority students." (link) Indeed, “[f]or every 13,000 increase in salary, . . . [there was a] drop of 5 percentage points in the response rate when compared to Caucasian males.” (link)

This study is a good illustration of why it is important for tools such as the civil rights statutes, and specifically their disparate impact provisions, are such important aspects of any effort to continue to address the effects of subconscious biases. 

At least for now, the substantive equality, and ability to equally access opportunity, for all Americans, other than white males, depends on them.

You can read the complete study here and listen to coverage on NPR here.