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Burgis v. New York City Dep't of Sanitation

United States Court of Appeals, Second Circuit

July 31, 2015

ANDRENIA BURGIS, CHRISTOPHER BURGOS, LETICIA SMITH, SAMUEL DUNCAN, ALONZO HUDGINS, RASHID SMITH, DOREN PINK, ANTHONY JOSEPH, ISRAEL DEJESUS, on their own behalf and on behalf of others similarly situated, [1] Plaintiffs-Appellants,
v.
NEW YORK CITY DEPARTMENT OF SANITATION, JOHN J. DOHERTY, Defendants-Appellees, JOHN DOES, 1-10, Defendants

Argued March 5, 2015

Page 64

[Copyrighted Material Omitted]

Page 65

In this putative class action, plaintiffs allege discrimination on the basis of race and/or national origin in the New York City Department of Sanitation's promotional practices, relying essentially on statistics that allegedly show disparities in the composition of various supervisory positions within the department. The district court dismissed plaintiffs' Equal Protection and § 1981 claims for failure to allege discriminatory intent, and dismissed the Title VII disparate impact claim for failure to exhaust administrative remedies. We conclude that (1) while statistics alone may be sufficient in some circumstances to show discriminatory intent in an Equal Protection or § 1981 class claim, the statistics here alleged in the complaint were insufficient for this purpose, and (2) plaintiffs failed to exhaust their administrative remedies prior to filing the Title VII disparate impact claim. Accordingly, the judgment of the United States District Court for the Southern District of New York (Griesa, J.) is hereby AFFIRMED.

FOR APPELLANTS: ARTHUR Z. SCHWARTZ and Tracey L. Kiernan, Advocates for Justice, Chartered Attorneys, New York, New York.

FOR APPELLEES: FAY NG and Pamela Seider Dolgow for Zachary Carter, Corporation Counsel of the City of New York, New York, New York.

Before: GUIDO CALABRESI, PETER W. HALL, Circuit Judges, and JED S. RAKOFF, District Judge.[2]

OPINION

Page 66

Jed S. Rakoff, Senior District Judge:

Plaintiffs are individuals employed by the New York City Department of Sanitation (" DSNY" ), who allege that the defendants, the City of New York[3] and John J. Doherty, Commissioner of the DSNY, discriminated against them and others similarly situated on the basis of their race and/or national origin in the DSNY's promotional practices. Plaintiffs bring this putative class action suit under the Fourteenth Amendment Equal Protection Clause, under 42 U.S.C. § 1981, under Title VII (42 U.S.C. § 2000e), and under the New York State and City human rights laws. The district court dismissed all of plaintiffs' claims. We affirm.

BACKGROUND

The second amended complaint[4] (" SAC" ) makes the following factual allegations. After the DSNY promotes individuals in its ranks of sanitation workers to supervisors, it may then promote those supervisors to the position of general superintendent, ranging from general superintendent level 1 (the lowest level) to general superintendent level 4 (the highest level). Prior to 1979, DSNY based promotion to supervisor and to general superintendent levels 1-3 on written examinations, but after 1979 the examinations were eliminated for promotions to levels 2 and 3. Promotions to levels 2, 3, and 4 are now done on the basis of recommendations.

Plaintiffs allege that by using recommendations in this way, the DSNY has created a supervisory workforce that is not representative of the racial and/or national origin composition of the sanitation worker workforce. The SAC includes the following chart, which summarizes the racial makeup of sanitation workers, supervisors, and general superintendents in Fiscal Year 2011:

Title

% White

% Black

% Hispanic

Sanitation Worker

56

23.5

18

Supervisor

81

11

10

General Superintendent Level 1

81

13

9

General Superintendent Level 2 & 3

91

4

3

General Superintendent Level 4

80

10

10


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