United States District Court, S.D. New York
September 27, 2005.
NATHAN TUCKER, et al., Plaintiffs,
ALBERTO GONZALES, as ATTORNEY GENERAL of the UNITED STATES, Defendant.
The opinion of the court was delivered by: LAURA SWAIN, District Judge
OPINION AND ORDER
Nathan Tucker, Paul Sutherland and Wilfred Baptiste
(collectively "Plaintiffs"),*fn1 all former and/or present
Special Agents ("SAs") in the New York Field Office ("NYFO") of
the Federal Bureau of Investigation ("FBI"), bring this action
against Alberto Gonzales ("Defendant"),*fn2 who as Attorney
General of the United States is responsible for the FBI, pursuant
to Title VII of the Civil Rights Act ("Title VII"), as amended,
42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1991
("Civil Rights Act"), 42 U.S.C. § 1981(a). The Court has
jurisdiction of this action pursuant to 42 U.S.C. § 2000e, et
seq., and 42 U.S.C. § 1981(a). Defendant moves pursuant to
Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure for
an Order dismissing the pattern or practice and disparate impact
causes of action asserted in Plaintiffs' Amended Complaint. The
Court treats the motion as one pursuant to Rule 12(b)(6). For the
following reasons, Defendant's motion to dismiss Plaintiffs'
pattern or practice and disparate impact claims is granted.
The facts of this action as alleged in Plaintiffs' Amended
Complaint are taken as true for the purposes of this motion.
Nathan Tucker ("Tucker"), an African-American GS-13 SA, was
employed in the FBI's NYFO from 1987 to March 2001, during which
time he served on the Fugitive Task Force Squad. (Am. Compl. ¶
9a.) Paul Sutherland ("Sutherland") is an African-American GS-13
SA who has been employed with the FBI since 1989. (Id. ¶ 9b.) During his tenure, Sutherland has served on the Fugitive Task
Force Squad, and has acted as a firearms instructor, a tactical
instructor and a squad leader of the Special Weapons and Tactics
("SWAT") team. (Id.) Wilfred Baptiste ("Baptiste") began his
employment with the FBI's NYFO in 1988. (Id. ¶ 9c.) Baptiste,
an African-American GS-13 SA, served on the Fugitive Task Force
Squad and was a member of the SWAT team until his transfer to the
Long Island Resident Agency on December 4, 2000. (Id. ¶¶ 9c,
In October of 1999, the FBI promoted SA Mark Paridy ("Paridy")
to the position of Supervisory Special Agent ("SSA") of the
Fugitive Task Force Squad. (Id. ¶ 11.) At the time of Paridy's
appointment, Tucker, Sutherland and Baptiste were each
accomplished members of the Fugitive Task Force and were
responsible for many high profile arrests. (Id. ¶ 12.) Tucker
had worked on "the successful capture[s] of a FBI `Top Ten'
fugitive[and] . . . of a subject featured on the television show
`America's Most Wanted,' while Sutherland had helped capture a
notorious gang enforcer and Baptiste had helped capture two
serial killers. (Id. ¶¶ 13-14.) Additionally, Tucker and
Baptiste "consistently received exceptional performance appraisal
report ratings," and Sutherland received a superior rating.
(Id. ¶ 12.)
However, despite Tucker's, Sutherland's and Baptiste's records
of achievement, Paridy constantly scrutinized and belittled their
work, harassed them because of their race and limited their
ability to attend training sessions. (Id. ¶¶ 19, 21.) In
addition, Paridy sought to use his position of power to
discriminate against the African-American and Hispanic members of
the NYFO. For example, soon after his appointment, Paridy
instituted an "Availability/Accountability Policy" which
eliminated the 10:00 a.m. to 6:00 p.m. work shift favored by
African-American SAs, but retained the 6:00 a.m. to 2:00 p.m. and
8:15 a.m. to 5:00 p.m. work shifts favored by Caucasian SAs. (Id. ¶ 15.) Paridy
implemented the Availability/Accountability Policy in order "to
interfere with [the African-American SAs'] investigations and
make their personal lives more difficult and burdensome as means
of racial harassment." (Id.)
On April 25, 2000, SA Tucker filed an initial complaint against
SSA Paridy with the FBI's Office of Equal Employment Opportunity
Affairs ("EEO"), alleging that Paridy had subjected him to
disparate and prejudicial treatment. (Veronica Venture Decl. Ex.
A.) After Tucker filed his EEO complaint, Paridy retaliated by
dropping his performance rating from "exceptional" to "superior."
(Am. Compl. ¶ 28.) Paridy also temporarily assigned Tucker to the
White Collar Crime Branch, where he was assigned duties usually
left to junior agents. (Id. ¶ 29.) "At [that] time, Tucker was
second in seniority on the Fugitive Task Force Squad." (Id.)
Eventually, as a result of Tucker's unwillingness to drop his EEO
Complaint, the FBI reassigned him to the Bank Robbery Squad.
(Id. ¶ 33.) After his transfer, Tucker was unable to secure a
supervisory position as a result of Paridy's low evaluations.
(Id. ¶ 35.) Tucker finally decided to relocate "to the FBI's
Baltimore Division because of the discrimination, hostile work
environment and retaliation he had suffered" at the NYFO. (Id.)
SAs Sutherland and Baptiste were also victims of Paridy's
discriminatory conduct at the NYFO. Paridy cancelled Sutherland's
original vehicle equipment assignment, and replaced his vehicle
with a less desirable model. (Id. ¶ 37.) After learning of
Sutherland's situation, Coordinating Supervisory Special Agent
David Stone and Assistant Special Agent in Charge James Sheehan
overturned Paridy's decision. (Id.) Paridy further subjected
Sutherland to discrimination by berating him in front of a New
York City Police Department Officer after the arrest of a
dangerous fugitive and by including unsubstantiated negative
comments in the narrative section of his performance appraisal report. (Id. ¶¶
Paridy over-scrutinized Baptiste's written reports and
communications in comparison to those of similarly situated
Caucasian SAs, and limited his participation on the SWAT team.
(Id. ¶¶ 50-51.) Although Baptiste was a senior agent on the
Fugitive Task Force, Paridy treated him as if he were an
inexperienced agent and constantly spoke to him in a
condescending manner. (Id. ¶ 53.) Paridy also downgraded
Baptiste's performance rating from "exceptional" to "superior,"
and omitted from the performance report Baptiste's
accomplishments, while negatively characterizing his work. (Id.
¶ 49.) On December 4, 2000, Baptiste was transferred from the
Fugitive Task Force to the Long Island Resident Agency. (Id. ¶
61.) This transfer was based on an earlier misrepresentation by
Paridy to Special Agent in Charge Robert Cordier. (Id.)
Plaintiffs filed a Complaint against Defendant on September 25,
2002, in the United States District Court for the District of
Columbia, alleging a pattern of discrimination, harassment and
retaliation by the FBI in violation of Title VII and the Civil
Rights Act. (Jeffrey Oestericher Decl. Ex. A.) By Order dated
March 12, 2003, District Court Judge Royce C. Lamberth dismissed
Plaintiffs' Complaint without prejudice to re-filing in a proper
venue. (Id. at Ex. B.)
Plaintiffs filed their Complaint with this Court on May 2,
2003. Defendant thereafter moved for an Order (1) dismissing the
Complaint insofar as claims were asserted on behalf of Hobson and
Luquis for failure to exhaust administrative remedies pursuant to
Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure;
and (2) dismissing Plaintiffs' Complaint in its entirety for
failure to comply with Rule 8 of the Federal Rules of Civil
Procedure or, in the alternative, severing the claims of Hobson and Luquis pursuant to
Rules 21 and 42(b) of the Federal Rules of Civil Procedure. In
response to Defendant's motion, Plaintiffs filed an Amended
Complaint on October 31, 2003, asserting five causes of action
for alleged violations of Title VII and the Civil Rights Act: (1)
hostile work environment, (2) pattern or practice discrimination,
(3) disparate impact, (4) disparate treatment discrimination and
(5) retaliation. The Court denied the motion to dismiss, without
prejudice, in light of the amendment of the complaint.
On December 2, 2003, Defendant filed a renewed motion to
dismiss Plaintiffs' pattern or practice and disparate impact
causes of action for failure to state a claim and failure to
exhaust administrative remedies, pursuant to Rules 12(b)(6) and
56 of the Federal Rules of Civil Procedure. Because it is not
necessary for the Court to look beyond the Amended Complaint to
make a determination on this matter, the motion will be treated
solely as one pursuant to Rule 12(b)(6). The claims of Plaintiffs
Hobson and Luquis were dismissed on May 31, 2005, without
In evaluating a motion to dismiss pursuant to Rule 12(b)(6),
the Court must take as true the facts alleged in Plaintiffs'
Amended Complaint and draw all reasonable inferences in their
favor. Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164 (1993); Hernandez v.
Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Further, the Court
must not dismiss a complaint "unless it appears beyond doubt that
the plaintiff[s] can prove no set of facts in support of [their]
claim[s] which would entitle [them] to relief." Conley v.
Gibson, 355 U.S. 41, 45-46 (1957).
Pattern or Practice Claim
Invoking the Supreme Court's decision in Int'l Bhd. of
Teamsters v. United States, 431 U.S. 324 (1977) and subsequent
circuit court decisions, Plaintiffs assert "pattern or practice"
discrimination as one of the five causes of action identified in
their Amended Complaint. In Teamsters, the Supreme Court
sanctioned the use of statistical evidence to prove a prima
facie case of widespread intentional discriminatory conduct.
This burden is satisfied by proof "by a preponderance of the
evidence that racial discrimination is the company's standard
operating procedure  the regular rather than the unusual
practice." Id. at 336. Absent the employer's showing in
rebuttal that the statistical evidence is inaccurate or
insignificant, such a prima facie case is sufficient to
support the grant of injunctive relief to preclude future
violations. Id. at 360-61.
In addition, once a prima facie pattern or practice case
has been established, individual members of the class of victims
of the widespread discrimination have the benefit of a
presumption of discrimination in proving their claims for
individual relief such as back pay, front pay or compensatory
damages. Robinson v. Metro-North Commuter R.R. Co.,
267 F.3d 147, 159 (2d Cir. 2001). The class member will only need to show
that he or she suffered an adverse employment decision and,
therefore, was a likely victim of the systemic discrimination.
Teamsters, 431 U.S. at 362; Robinson, 267 F.3d at 159. Unless
an employer can then show that the adverse employment decision
was based on lawful reasons, the class member is entitled to
individual relief. Robinson, 267 F.3d at 160. Defendants seek dismissal of Plaintiff's Second Cause of
Action, arguing that the "pattern or practice" method of proof is
unavailable in the context of private, non-class action suits.
Defendant further contends that dismissal of the cause of action
is appropriate because the Amended Complaint fails to allege
facts sufficient to support a pattern or practice claim. The
Court finds that dismissal of the separate "pattern or practice"
claim is warranted.
The Supreme Court has not specifically addressed the issue of
whether an individual plaintiff may maintain a Title VII claim on
a pattern or practice basis. Lowery v. Circuit City Stores,
Inc., 158 F.3d 742, 761 (4th Cir. 1998), vacated on other
grounds, 527 U.S. 1031 (1999). The cases in which the Supreme
Court has approved use of the pattern or practice method have,
however, involved class claims. See, e.g., Cooper v. Fed.
Reserve Bank of Richmond, 467 U.S. 867, 876 n. 9 (1984) (citing
Teamsters, 431 U.S. at 358-60) (noting that the Teamsters
framework applies in private, class action suits); Lowery,
158 F.3d at 760 (citing Teamsters, 431 U.S. at 357-60) (discussing
the Supreme Court's implicit endorsement of the application of
pattern or practice principles to private, class action suits in
Plaintiffs rely principally on Davis v. Califano,
613 F.2d 957 (D.C. Cir. 1979), and Carmichael v. Birmingham Saw Works,
738 F.2d 1126 (11th Cir. 1984), in defending the propriety of
their pattern or practice claim. The courts in those cases held
that individual plaintiffs could prove their prima facie
cases of disparate treatment through pattern or practice
evidence. Other courts have held that private, non-class pattern
or practice claims are inappropriate. See, e.g., Lowery,
158 F.3d at 760-61 (declining to allow individual plaintiffs to bring
a pattern and practice claim); Babrocky v. Jewel Food Co.,
773 F.2d 857, 866 n. 6 (7th Cir. 1985) (recognizing that pattern or
practice claims involve claims of class-wide discrimination). But see Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1559
(11th Cir. 1986) (finding that individual plaintiffs may use the
Teamsters method of proof after "establish[ing] `that . . .
discrimination was the company's standard operating procedure'"
(citing Teamsters, 431 U.S. at 336)). Although the Second
Circuit has not specifically addressed the issue of whether an
individual can maintain a private, non-class pattern or practice
claim, district courts within the circuit have suggested that
they cannot. See Blake v. Bronx Lebanon Hosp., No. 02 Civ.
3827(CBM), 2003 WL 21910867, at *5 (S.D.N.Y. Aug. 11, 2003)
(doubting the propriety of a pattern or practice claim in a
non-class action complaint); Heap v. County of Schenectady,
214 F. Supp. 2d 263, 272 (N.D.N.Y. 2002) (dismissing individual
plaintiff's pattern or practice claim as improper); Foster-Bey
v. Henderson, No. 3:98CV01097(EBB), 2000 WL 620331, at *1 n. 1
(D. Conn. Apr. 7, 2000) ("The Court is not convinced that a
plaintiff may bring a `pattern and practice' claim in a non-class
action complaint."); Victory v. Hewlett-Packard Co.,
34 F. Supp. 2d 809, 821 (E.D.N.Y. 1999) (concurring that a pattern or
practice claim is limited to class actions); In re W. Dist.
Xerox Litig., 850 F. Supp. 1079, 1083 (W.D.N.Y. 1994) (noting
that pattern or practice claims generally occur in the context of
It is not necessary for the Court to determine, in the current
posture of this case, whether Plaintiffs may be able to use the
statistical pattern or practice method of proving their claims.
As previously noted, pattern or practice is merely a method of
proving prohibited disparate treatment. Here, Plaintiffs' amended
complaint already includes a cause of action for disparate
treatment. (See Am. Compl., Fourth Cause of Action, "Disparate
Treatment".) None of the cases cited by the parties recognizes a
cause of action for "pattern or practice" discrimination separate
and distinct from a claim that an employer deliberately
mistreated employees on racial or other prohibited grounds. The Second Cause
of Action is thus, at best, duplicative, and will be dismissed
without prejudice to the disparate treatment claim asserted in
the Fourth Cause of Action.*fn3
Disparate Impact Claim
The general introductory paragraphs of the Amended Complaint
assert, among other things, that
the policies, practices and procedures of the NYFO,
and those of the FBI generally, have operated to have
a disparate impact on African-American and Hispanic
Special Agents with regard to performance appraisal
reports (`PAR's) [sic], the conduction [sic] of file
reviews, the assignment of equipment, in-service and
outside training opportunities, case assignments,
duty assignments, availability and accountability
practices, investigative support and awards, bonuses
and other forms of official recognition.
(Am. Compl. ¶ 4.) Plaintiffs reiterate this general assertion in
paragraph 115 of the Amended Complaint in support of a Third
Cause of Action for "Disparate Impact." As noted earlier,
however, the intervening paragraphs of the Amended Complaint
comprise a detailed series of accounts of disparate treatment of
Plaintiffs by a particular New York Field Office supervisor.
Defendants argue that the Third Cause of Action should be
dismissed because the Amended Complaint fails to identify any
particular facially neutral policy that is alleged to have had a disparate impact on African-American and Hispanic SAs.
In order to establish a prima facie case of disparate
impact, it is not enough for a plaintiff simply to allege that
there is a "bottom line" racial imbalance in the workplace.
Connecticut v. Teal, 457 U.S. 440, 450-51 (1982). Instead, a
plaintiff must identify a facially neutral employment policy or
practice of the employer that has a significant disparate impact
on a protected class. See Griggs v. Duke Power Co.,
401 U.S. 424, 430-32 (1971); Brown v. Coach Stores, Inc., 163 F.3d 706,
712 (2d Cir. 1998); Kulkarni v. City Univ. of New York, No. 01
Civ. 10628(DLC), 2002 WL 1315596, at *1 (S.D.N.Y. June 14, 2002).
Plaintiffs failed to respond to Defendant's arguments
concerning the Third Cause of Action. Having considered carefully
the content of the Amended Complaint and the applicable law, the
Court finds that dismissal of the Third Cause of Action is
warranted on account of Plaintiffs' failure to identify
challenged policies and/or their allegedly disparate impact.
In light of the foregoing conclusions regarding Plaintiffs'
Second and Third Causes of Action, it is unnecessary for the
Court to address Defendant's argument that the claims asserted in
those Causes of Action should be dismissed for failure to exhaust
For the foregoing reasons, Defendant's motion pursuant to
Federal Rule of Civil Procedure 12(b)(6) to dismiss the Second
("Pattern or Practice") and Third ("Disparate Impact") Causes of
Action asserted in Plaintiffs' Amended Complaint is granted;
provided that this dismissal is without prejudice to Plaintiffs' pursuit of the
disparate treatment claims asserted in their Fourth Cause of
The parties shall promptly meet with Judge Maas to discuss
settlement and all outstanding pretrial matters. If the parties
wish to proceed before Judge Maas for all purposes, they shall
promptly so inform the undersigned and shall execute the
requisite written consent form.
In light of the disposition of the pending motion to dismiss
and the continued reference to Judge Maas for completion of
pretrial matters, Plaintiffs' Motion to Expedite Proceedings to
Trial (Docket Entry No. 51) is denied without prejudice.
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