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

Overview: Light Duty & the ADA, FMLA, and PDA

An informative overview of the intersection of light duty work and the ADA, FMLA, and PDA from the FMLA Insights Blog: Don't Be Tripped Up by Light Duty Obligations under the FMLA and ADA: A Discussion of Employer Best Practices.

FMLA Joint Employer Doctrine May Cover Unaware Smaller Employers

A cautionary tale to smaller employers concerning FMLA coverage and compliance:

"On September 19, 2014, the 7th Circuit affirmed summary judgment in favor of an employee on the issue of FMLA coverage under the joint-employer doctrine.  Cuff v. Trans States Holdings, Inc., No. 13-1241 (7th Cir., 9-19-2014).  The Family and Medical Leave Act applies only to an employer that has at least 50 employees within 75 miles of the employee's work station.  Cuff was on the payroll of Trans States, which only had 33 employees.  However, Department of Labor Regulation 29 C.F.R. 825.106(a) provides that workers are covered by the FMLA when they are jointly employed by multiple firms that collectively employ 50 or more workers.  In addition, DOL Regulation 29 C.F.R. 825.104(c) provides that 2 or more firms may be treated as a single employer when they operate a joint business.  The joint-employer doctrine applies when one person is employed jointly by two firms that otherwise have distinct labor forces.

* * *

The 7th Circuit held that Cuff was covered by the FMLA because he was jointly employed by Trans States and GoJet, who collectively employ 50 or more workers."  (link)

Second State To Guarantee Paid Sick Time - Just 48 to Go ...

On August 30, 2014, California became the second state to guarantee sick time.  While, likely a surprise to most people, although federal law provides some protections for at least unpaid medical leave, at least after employees working for certain employers have been on the job for a year (FMLA), there is no federal law broadly guaranteeing paid sick days -- not even just one. 

Some local jurisdictions like NYC have passed local laws.  But, absent local legislative action, there is an enormous gaping hole in protections for sick workers.

Right now -- you're thinking about the fact that you do have sick days at work -- that's great news. The bad news is that those sick days are likely merely your employer's disrcretionary policy and are not mandated under federal law -- which I'm sure you think they should be.

Here is an overview of the new California law from the Labor and Employment Law Blog:

"The new law is called the 'Healthy Workplaces, Healthy Families Act.'  Beginning on July 1, 2015, both public and private employers (of any size) will be required to provide eligible employees with paid sick leave 'at the rate of not less than one hour per every 30 hours worked.'  Eligible employees are those employees who have worked 30 or more days within a year after their date of hire.  Under the new law, exempt employees are deemed to work a 40 hour workweek.  Employees are to be compensated at the same wage as the employee normally earns during regular work hours.  The rate of pay shall be the employee’s hourly wage.  If the employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay shall be calculated by dividing the employee’s total wages (not including overtime premium pay) by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

There are a few exceptions in which employers are not required to offer the new paid sick leave benefit and they relate mainly to employees who are covered under a collective bargaining agreement, or who work in the construction industry, the home healthcare industry, or the airline industry." (link)

An in-depth overview of the new California law is available here.

Based on the experience of Connecticut, the only other state to pass a similar state-wide law, concerns raised about the California law are unlikely to be realized:

"California joins Connecticut, the first state to guarantee its residents have paid sick leave.  If that state’s experience is a guide, the California Chamber of Commerce, which called the state’s bill a 'job killer,' should have nothing to worry about.  A year and a half after Connecticut’s law took effect, most employers said the costs had been negligible or non-existent, abuse hadn’t cropped up, and many actually saw benefits.  More than three-quarters support the law, with nearly 40 percent saying they’re very supportive." (link)

Wait -- "more than three-quarters support the law?" Sounds like supporting the rights of workers to take a paid sick day might even attract votes to supportive legislators.

Just 48 states to go . . . including New York.