The opinion of the court was delivered by: Denny Chin, D.J.
In this action, plaintiffs allege that the New York City Department of Parks and Recreation ("Parks") violated federal, state, and city discrimination laws. Plaintiffs, eleven African-American and Hispanic current and former Parks employees, allege that defendants engaged in a pattern and practice of employment discrimination on the basis of race, color, and national origin. They allege also that defendants engaged in a pattern or practice of retaliation against employees who attempted to oppose the discriminatory practices. Plaintiffs sue on their own behalf as well as on behalf of similarly situated individuals.
Before the Court is defendants' motion for summary judgment dismissing certain class claims and certain individual claims. As part of the motion, defendants also seek to exclude the reports and testimony of plaintiffs' expert witnesses, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
Except to the extent set forth below, defendants' motion is denied, for plaintiffs have presented substantial, concrete evidence to support their claims of discrimination and retaliation. Plaintiffs' statistics, for example, show that in 2000, the year before this lawsuit was filed, 92.9% of the Parks employees earning less than $20,000 per year were African-American or Hispanic, while only 14.2% of those earning between $50,000 and $60,000 per year were African-American or Hispanic. Plaintiffs have also presented evidence of discriminatory remarks by high-ranking Parks officials as well as evidence of subjective and ad hoc employment practices that created roadblocks to advancement, including, for example, the filling of vacancies based on personal connections without posting or other public announcement. Plaintiffs have also presented evidence that Parks officials repeatedly retaliated against class members who complained of discrimination. Class members, for example, were denied promotions and raises after they complained. Indeed, two of the named plaintiffs were assigned to work in basements after they complained.
A reasonable jury could find from this and other evidence in the record that Parks engaged in widespread discrimination against African-American and Hispanic employees, in terms of promotions and compensation, and that Parks engaged in widespread retaliation against those who opposed what they believed to be discriminatory practices. I conclude, however, that plaintiffs have not presented sufficient evidence to sustain their claims that defendants engaged in a pattern or practice of assigning employees and allocating funds based on race. Likewise, I conclude that plaintiffs have not presented sufficient evidence to support their hostile environment racial harassment claim. Accordingly, defendants' motion for summary judgment is denied in part and granted in part. Defendants' request for preclusion of the testimony of plaintiffs' experts is denied.
Construed in the light most favorable to plaintiffs as the parties opposing summary judgment, the facts are as follows:
The named plaintiffs -- Carrie Anderson, Walter Beach, Jacqueline Brown, Angelo Colon, Paula Loving, Odessa Portlette, David Ray, Elizabeth Rogers, Henry Roman, Kathleen Walker, and Robert Wright -- are current and former Parks employees who are African-American or Hispanic.*fn1
The named plaintiffs are long-time Parks employees, some of whom have been employed at Parks for as many as twenty-five or thirty years. All but one (Beach) were denied promotions because they applied for positions and were rejected or they were unable to apply because the positions were not posted. Eight of the eleven (Brown, Colon, Loving, Portlette, Rogers, Roman, Walker, and Wright) contend they were paid less and/or received fewer discretionary pay raises than comparably situated Caucasian employees. Seven of the eleven (Beach, Brown, Colon, Portlette, Roman, Walker, and Wright) contend that after they complained of discrimination, they were subjected to adverse and retaliatory treatment.
Parks is an agency of defendant City of New York (the "City"). (Compl.*fn2 ¶ 16). Defendant Henry Stern, who was Executive Director of Parks in 1966, served as Commissioner of Parks during the Koch and Giuliani mayoral administrations, from in or about 1983 until 1989 and from 1995 until February 2002. (Stern Dep. at 38, 43, 49, 61). Defendant Adrian Benepe has been the Parks Commissioner since February 2002. Benepe worked at Parks as a seasonal employee for several years during the 1970s. After joining Parks full-time as an Urban Park Ranger in 1982, Benepe served in a variety of positions before his appointment as Commissioner by Mayor Bloomberg. (Benepe 12/23/05 Decl. ¶¶ 4-8). Stern and Benepe are sued in both their individual and official capacities.
Parks is responsible for the care of more than 4,000 City properties, covering almost 29,000 acres of parklands, 7 public beaches, 993 playgrounds, 608 ball fields, 63 swimming pools, 36 recreation areas or senior citizen centers, 17 golf courses and driving ranges, 6 ice skating rinks, 5 major stadia, more than 500 tennis courts, 22 historic house museums, hundreds of statues and monuments, and more than 600,000 street trees. (Id. ¶ 2). Parks' mission is to keep the City's parklands safe and clean, while also providing quality recreational opportunities to the public. (Id. at ¶ 3).
The Commissioner is responsible for the overall operation of the agency. The Commissioner appoints Deputy, Borough, and Assistant Commissioners who are responsible for managing the agency divisions. (Id. ¶ 9). During Stern's term as Commissioner, the third floor of the Arsenal in Central Park served as the main headquarters for central management and high-level employees ("Arsenal Officials"). (Moss Dep. at 16-17, 202-04; Garafola Dep. at 52-53; Spiegel Dep. at 311). In addition, each borough has its own headquarters and a management team, composed of a Borough Commissioner, Chief of Operations, and a Deputy Chief of Operations. (Benepe 12/23/05 Decl. ¶¶ 10, 25-26; Stark Decl. ¶ 35; Stern Dep. at 66-67).
Although the numbers fluctuated over time, Parks employed roughly 3,400 to 5,000 full-time year-round employees at a time during the period in question. Some 2,000 to 4,000 were formal year-round employees and some 1,400 to 1,600 were "seasonal" employees who were paid from the seasonal budget but worked year-round. An additional 3,000 to 7,000 employees worked on a seasonal basis only. (Benepe Decl. ¶ 9; Schneider Report Table C-1; Stark Dep. at 481-82, 486; Stark Dep. at 327-30; Stark Decl. ¶ 22). In addition, there are "seasonal step-up" positions, which involve a year-round employee receiving a temporary, seasonal promotion to a supervisory function. (Stark Decl. ¶ 24). When an employee receives a seasonal step-up, his regular salary is paid out of the full-time budget but the temporary increment is paid out of the seasonal budget. (Id.).
Between January 1, 1997, and December 31, 2003, Parks employed 6,295 full-time, year-round employees. Of these, 15 were Native American, 227 were Asian-American, 1,163 were Hispanic, 2,124 were African-American, 2,753 were White, and 13 were unknown. (Schneider Decl. ¶ 13 (class members approximately 52.2%; White 43.7%); cf. Stark Decl. ¶ 3 (48% class members)).
c. Employment Classifications and Regulations
The terms and conditions of employment at Parks are subject to both the civil service structure and the union contracts in place in New York City. (Stark Decl. ¶ 6). As of December 2005, 94.3% of full-time Parks employees were unionized. (Id. ¶ 12). Each union contract sets salaries, including minimum and maximum salaries where applicable, and provides for non-discretionary salary increments. (Id. ¶ 14). Employees covered by unions work in non-management positions. (Terhune Dep. at 44). For managerial employees, compensation is determined by the "Managerial Pay Plan," which sets minimum and maximum salaries for employees at eight assignment levels. (Stark Decl. at ¶ 16). The Mayor's Personnel Order sets forth revision to those salaries. (Id.).
Under the New York State Constitution, all public employees are "civil service" employees. (Id. ¶ 7). There are 220 civil service job titles at Parks, 184 of which are actively held by Parks employees. (Id. ¶ 8; Schneider Decl. ¶ 15). One position, "Commissioner," is "unclassified," and all other positions are "classified." Classified service is divided into four classes -- exempt, non-competitive, labor, and competitive, with "[t]he majority of titles . . . in the competitive class." (Stark Decl. ¶¶ 8-9). Employees in different classes are subject to different terms of employment with exempt and non-competitive classes serving at the will of the appointing officer. (Id. ¶ 10).
Under civil service law, appointments and promotions of employees in the competitive class are to be made either permanently from a civil service list of employees who have passed an examination or, where no employees are on the civil service list, by provisional appointment. (Stark. Decl. ¶ 10).*fn3
The Parks Working Conditions Agreement, which was in force during the times relevant to this lawsuit, provides that provisional promotions shall be made by seniority. (Pl. Dep. Ex. 42 ¶ 7; Stark Dep. at 337-38).
For most or all of Stern's term as Commissioner, citywide examinations were not given for a number of positions. From at least as early as 1995 until 2000 or 2001, the City did not administer civil service examinations for the title of Park Supervisor, Principal Park Supervisor, Associate Park Service Worker, Urban Park Ranger, Recreation Assistant, and Recreation Supervisor. (Def. Resp. Pl. RFA ## 258-59, 277-78, 280-81).*fn4 As a result, employees in the competitive class frequently served on a provisional basis, which allowed them to advance without passing a civil service examination. (Terhune Dep. at 154; Lawless Dep. at 291-92).
In addition to civil service titles, Parks uses "in-house" titles for its employees. Typically, in-house titles are more descriptive of the employee's actual role and responsibilities at Parks. (Terhune Dep. at 133-35). Though there may sometimes be a correlation between certain in-house titles and civil service titles, there is no Parks document setting forth which in-house titles correspond to which civil service titles. (Id. at 143-48).
3. Evidence of Discrimination
In support of their claims of discrimination, plaintiffs have offered evidence of: (a) statistical imbalances, (b) discriminatory comments purportedly made by Stern and other Parks management officials, (c) displays of nooses, (d) discriminatory practices in awarding wage increases, (e) discriminatory practices in promotions, postings of vacancies, and the interview process, (f) the discriminatory nature of the "Class Of" program, and (g) discriminatory decisions regarding assignments, funding, and staffing.
In terms of salary, plaintiffs' statistics show a significant disparity, as the lower-paid positions are overwhelmingly held by class members while class members hold only a small percentage of the higher paid positions. For example, class member composition by income group in 2000 was as follows:
Salary Percentage Class Members
Less than $20,000 92.9% $20,000 - $30,000 68.8% $30,000 - $40,000 54.3% $40,000 - $50,000 30.2% $50,000 - $60,000 14.2% $60,000 - $70,000 20.7% $70,000 13.3% (Schneider Rebut. App. Table A-6; Ex. ETH-00001; see also Pl. Dep. Exs. 64 & 186).*fn5 Likewise, controlling for job title, class members were paid between $16.44 and $32.59 less than Caucasian members on a bi-weekly basis between 1997 and 2003. (Schneider Rebut. Table 2). Without controlling for job title, class members were paid from $283.25 to $364.09 less than Caucasians on a bi-weekly basis over the same time period. (Id.).
With respect to pay growth from a starting salary of $30,000 in January 1997, the salaries of Caucasians increased, on average, at a 4% higher rate than class members' salaries. (Schneider Rebut. Table 4; App. Table A-14). Similarly, Stern and Benepe recommended salary increases 2.5% greater for non-class members than for class members. (Schneider Report ¶¶ 72-73). Moreover, non-class members received significantly higher average salaries than class members for each year from 1996 to 2003. For non-managers, the difference in salaries ranged from $6,909 in 1996 to, increasing steadily each year, $9,994 in 2003. (Schneider Rebut. App. Table A-9). For managers, the difference ranged from $5,284 in 1996 to $7,957 in 2001 to $3,407 in 2003. (Schneider Rebut. App. Table A-8).
With respect to promotions, class members suffered statistically significant lower probabilities of receiving "wage promotions"*fn6 than Caucasians, controlling for job title, experience, and tenure. (Pl. Mem. at 25; Schneider Rebut. Table 3 (ranging from 4.2 to 5.23 standard deviations)). From 1996 until 2003, class members made up between 50% and 56% of the non"Class Of" Parks workforce. (Schneider App. Table A-5). Nevertheless, they constituted only some 18 to 23% of the managerial workforce from 1996 to 2001. After the filing of this lawsuit, the number of class members in the managerial workforce increased to around 25% in 2002 and 2003. (Schneider Rebut. Fig. 4, App. Table A-4). A review of the in-house rosters shows that non-class members received 70.9% of the managerial in-house promotions from July 1995 to August 2004 while class members received 29.1% of those promotions. (Schneider Rebut. Fig. 13). Though the parties dispute what constitutes a promotion, defendants' own records show 77% of promotions going to non-class members in 1998 and 82% of promotions going to non-class members in 1999. (Pl. Dep. Ex. 85 (41 out of 53 promotions went to non-class members in 1998 and 53 out of 65 promotions went to non-class members in 1999)). As of February 2000, all 27 Principal Parks Supervisors were Caucasian and approximately 72% of Parks Supervisors were Caucasian. (Ex. ETH 0078).
Moreover, plaintiffs' expert Kathleen Lundquist, Ph.D., created a database containing overall panel interview scores for applicants for certain positions between 1995 and January 2004. (Lundquist Report at 12). The race of each applicant was tracked according to the DCAS database or the interview panel summary rating form. Based on her analysis of this database, Lundquist concluded that class members received statistically significant lower interview scores than Caucasians. (Id. at 12-13).
As EEO Officer, Lesley Webster met weekly with Stern and submitted investigation reports and status reports to Stern. Webster testified that she informed Stern that minorities were underutilized in Parks management positions. (Webster Dep. 280-86). Indeed, in January 1997, the City Equal Employment Practices Commission ("EEPC") issued a report finding significant under-representation of class members in numerous job titles and managerial titles at Park. (Pl. Ex. 67 at 7-9). Parks' reports to the EEPC for the years 1998-1999 contained a section describing the steps Parks would take to address the underutilization of women and minorities in certain positions. (See Pl. Dep. Ex. 89b-h).
Stern's former employees describe him as "eccentric" (e.g., Ricciardone 12/04/02 Dep. at 21) and a "combination of Groucho Marx and Woody Allen" (Benepe DOJ Int. at 57), and there is much in the record to support these characterizations. For example, Stern developed "Parks nicknames" for Parks employees, which were included in the agency-wide manual and by which he referred to employees, even during depositions. (E.g., Def. Vol. II, Ex. 24; Stern Dep. at 35 ("Gorilla" and "Gorilla Gorilla"), 135 ("Zorro"), 258 ("Igor"), 386 ("Home Boy")). Various Parks employees reported that Stern made fun of everyone, regardless of race, including himself. (Benepe DOJ Int. at 57-58; Castro DOJ Int. at 81). Stern prides himself on not being politically correct. (Stern Dep. at 250-54).
From the evidence on the record, a reasonable jury could find the following:*fn7
* Stern said to Tanya Bowers, a former employee of Parks who is Jewish and African-American, "It's wonderful, Tanya. You look black, but when you talk, I know you're Jewish. I can bring you home and know that the silverware will still be there when you leave." (Bowers Dep. at 203).
* Responding to a complaint of discrimination in promotions forwarded from the Mayor's office, Stern asked the complainant, Bernard Lewis, whether he was a drug addict or drank on the job. (Lewis Aff. ¶¶ 7-9).
* Stern attributes the lack of African-Americans in managerial positions to the "smaller number of blacks who are able to perform managerial positions." (Stern Dep. at 150). He further explained that this was because of "background, because they have not in a sense climbed the ladder." (Id. at 150-51).
* Stern believed, as he testified, that class members "racialized" conflicts with non-class member employees. (Id. at 159).
* At a going away party for a Parks employee who was leaving to attend Yale Law School, Stern said that he was "pleased" the departing employee would be attending Yale "where he could meet and rub arms with important people like the DuPonts and the Rockefellers and also he could rub elbows with the quota kids." (Beach 4/3/03 Dep. at 196-97; Stern Dep. at 257-59; Castro Dep. at 152-53 (testifying that he interpreted "quota kids" as referring to African-Americans and Hispanics)).
* While walking with his dog, Boomer, Stern told a group of Chinese children that "they could pet Boomer, but not eat him." (Stern Dep. at 33). Stern described the incident as "warm and affectionate" and "clearly a joke rather than a remark denigrating anyone." (Id. at 33, 37). Nevertheless, he apologized when an adult complained about the incident, clarifying that he had not meant to offend anyone. (Id. at 36).
* Stern recommended that "Class Of" employees -- who are recruited primarily from elite colleges through a program described in more detail below -- read The Bell Curve, a book describing purported differences in levels of intelligence among racial groups. (Bowers Dep. at 133-34).
Other Parks officials testified that they had heard that Stern had a reputation for making racial remarks. Castro testified that he occasionally heard Stern use "racial references" in a derogatory manner. (Castro Dep. at 155). Likewise, Moss admitted that Stern had a reputation for making derogatory remarks. (Moss Dep. at 148).
ii. Other Parks Employees
Plaintiffs also point to statements and conduct of other Parks employees. For example,
* Robert Garafola, a Deputy Commissioner under Stern, wrote "incompetent people accusing racism" though he admitted that he did not know all of the plaintiffs who had filed lawsuits. (Garafola 9/10/03 Dep. at 122-23). Further, Garafola admitted that there was merit in the statement that minorities had been underrepresented in management and middle management at Parks. (Id. at 30; Garafola Dep. at 12/30/02 at 285). Though Garafola attempted to attribute this under-representation to few minorities passing the required tests, he admitted that Parks mployees were promoted without taking civil service tests. (Garafola 9/10/03 Dep. at 30-33).
* Charlie Cousins, a Caucasian Parks Supervisor in Manhattan, said to class member Jose Cintron, "[Y]ou people are a bunch of animals" in reference to the Puerto Rican Day Parade. (Cintron Dep. at 48-49). He also repeatedly referred to Cintron as a "stupid spic." (Id. at 56). In the presence of Cintron, Cousins also said to class member Richie Laylock, "you are a stupid black Mother Fucker." (Id. at 53-55).
* In March 1999, in a Brooklyn Parks facility, Greg Dawson, Brooklyn's Deputy Chief of Operations, said to Henry Roman, "[W]hat kind of Puerto Rican are you that you don't carry a knife." (Roman Dep. 9/4/02 Dep. at 73; Roman 1/16/03 Dep. at 213-14).
* Patricia Gracia, a Caucasian supervisor, muttered "black bitch" under her breath when class member Arlene Dunbar refused to sign a supervisory conference report dated August 15, 1998. (Dunbar Dep. at 123-24, 139).
* Class member Dennis Moody heard that Phil Rabena, a Caucasian Supervisor on Staten Island, asked an African-American WEP worker named Montgomery to pull down his pants to see if black men had larger penises than whites. Moody learned this from three workers who were present at the incident and the WEP worker. Verne Reilly, a Caucasian Parks Supervisor and EEO representative on Staten Island, encouraged the WEP worker to report the incident. (Moody Dep. at 30-34; Pl. Dep. Ex. 537).*fn8
Thereafter, Reilly informed Webster that he was concerned Rabena would retaliate against him. (Pl. Dep. Ex. 537; Webster Dep. at 620-22). Indeed, Reilly was transferred shortly thereafter from Staten Island, where he lived, to Harlem, purportedly for disciplinary reasons. (Reilly Dep. at 58).
* In August 2001, Jack Bero, a Caucasian supervisor, made a joke containing the phrase, "It's time to get the niggers out of here." (As Salaam Dep. at 88-89).
* Following a catered special event at the Historic House in the Bronx, Kathleen Walker overheard Commissioner Linn say, "[I]f you give them maybe the bottles that are halfway open, . . . maybe they won't steal the rest of the bottles." (Walker 9/17/02 Dep. at 106).
In 1998, a noose was found hanging from a pipe in the Forestry Office in Staten Island. (Webster Dep. at 315; Moody Dep. at 124-28). A picture of a black man was on the wall behind the pipe so that the head of the man in the picture could be seen through the opening of the noose. (Moody Dep. at 124-28). The noose was removed after a Parks employee complained. Though a complaint was filed, it is unclear whether an investigation was conducted. No one was disciplined for hanging the noose. (Webster Dep. at 315-16).
In 2000, a noose was hung on a forestry truck in Queens. (Webster Dep. at 319-20, 688-90; Pl. Dep. Ex. 9). Webster testified that she "conducted an investigation[,] . . . found . . . that the noose was taken . . . down, that they were not sure who put the noose up and how long it had been there, and that was it." (Webster Dep. at 320). Again, no one was disciplined. Webster did not refer either allegation to the City's Advocate's Office, and she was unable to specify whether she dealt with the nooses in subsequent trainings. (Id. at 320-22, 692).
Each October, between 1995 and 1997 or 1998, Susan Silvestro, a Caucasian supervisor, hung a noose in her office at Five-Boro on Randalls Island, apparently as part of a Halloween display. (Silvestro 4/15/03 Dep. at 180-81, 185; Portlette 8/26/02 Dep. at 89-90; Green Dep. at 124-36). Silvestro continued to display the noose even after an African-American employee complained. (Green Dep. at 125-36).
Stern acknowledged that he was aware that a noose was placed on Parks property in 1998 or 1999 and that McCoy had complained about it, but he did not know if Parks investigated it. (Stern Dep. 159-63). Stern explained that McCoy was of "limited capacity." (Id. at 160). Further, while he understood that nooses could be offensive to African-Americans, Stern did not order any investigation of the nooses on Parks property though he considered them "childish" and "silly." (Id. at 163-68). From January 1, 1995, until August 20, 2004, defendants did not discipline any Parks employee for displaying a noose on Parks property. (Def. Resp. Pl. RFA #457).
iv. Wage Increases and Promotions
When an employee was recommended for a wage increase or promotion, a Planned Action Report form ("PAR") was prepared identifying the candidate and proposing an increase or promotion but leaving a blank for the salary and Stern's signature. (Stark Dep. at 64-65, 69, 259-61, 274-81). David Stark, who oversees the Personnel Department as Chief Fiscal Officer of Parks, would bring these forms to Stern, and together they would review the proposed action. (Id. at 273-74). If Stern approved a request, he would determine a salary and write it on the PAR form. (Id. at 221, 270-78; Terhune Dep. at 56, 65). Generally, Stern did not consult Civil Service law or collective bargaining agreements in determining the salary. (Stark Dep. at 276-78 (observing that Stern filled in salary on PAR forms without consulting any guidelines but also noting that Stern knew the salary structure of the agency)).
After Stern approved a planned action and determined a salary, Stark and Terhune would select a civil service title that matched the salary selected by Stern. (Id. at 285-89). Thus, the salary determined the civil service title the employee would receive. (Id.). In some circumstances, employees would have received a change in their in-house titles prior to a PAR being submitted and approved. These individuals, however, would not be eligible for a salary promotion until the PAR was approved. (Id. at 264).
In the case of year-round employees paid from the seasonal budget, the PAR would be implemented after Stern signed it. (Id. at 288). In the case of employees paid from the regular Parks budget, Stark and his associates would fill in the "justification" on the PAR after Stern set the salary and signed the form. (Id. at 257-59, 288-89). The completed PARs for these employees would then be sent to City Hall for approval. (Id. at 293).
Stern had ultimate authority to approve or disapprove a job action. (Id. at 270-78; Stern Dep. at 18). In practice, he generally approved the action recommended by his subordinates though sometimes he did not approve salary increases at the level recommended by them. (Stern Dep. at 18; Stark Dep. at 280-85). The level of the raise was almost always determined by the Commissioner. (Stark Dep. 276-68 ("I never knew what [number] he was going to put in there until he did it.")).
Stern said he did not want "to stigmatize" minorities by giving them a plus for diversity, but he nonetheless stated that all things being equal, he would give a slight preference to a minority to help to create diversity. He could not think of an employee to whom he had given that benefit. (Stern Dep. at 315-16).
v. Postings and Interviews
The City of New York Affirmative Employment Plan for 1991 requires that Parks notify employees when job openings occur. (Pl. Dep. Ex. 3 at 5). The City's Personnel Policy, dated June 30, 1998, requires that vacancy notices be posted. (Id. Ex. 45). Likewise, the Citywide Contract, which applied to Parks as of May 24, 1998, and the Parks Working Conditions Agreement require that Parks post notices of job positions, including promotional provisional vacancies, two weeks before the positions are filled. (Def. Resp. RFA ## 60-62; Pl. Dep. Ex. 42 at 2). Since 1994, Stark has maintained a policy that all job vacancies are to be posted. (Stark Dep. at 83-88).
Despite these requirements and policies, Parks did not have an official policy regarding the posting of vacancies and regularly failed to post vacancies prior to the filing of this lawsuit.*fn9 (Terhune Dep. at 180, 405-06; Stark Dep. at 83-88). Indeed, when the personnel department received notice of a vacancy, Terhune would ask whether he had "the go ahead" to post the position. (Terhune Dep. at 406). Between 1995 and March 1999, there were no postings for the following ...