United States District Court, S.D. New York
OPINION AND ORDER
G. Schofield United States District Judge.
Bryan Wynn, John Williams, Awilda Guzman, Jose Otero and
Kevin Fulton bring this action against Defendants New York
City Housing Authority (“NYCHA”) and Union Local
237, I.B.T. (the “Union”). Plaintiffs allege that
NYCHA violated their rights under 42 U.S.C. § 1981
(“Section 1981”), 42 U.S.C. § 1983
(“Section 1983”) and the New York City Human
Rights Law, NY.C. Admin. Code § 8-107 et seq.
(“NYCHRL”), by paying them less than similarly
situated workers as a result of their minority status and by
failing to remedy the discrimination. Plaintiffs further
allege that the Union “tacitly engaged in and/or
encouraged” such discrimination. NYCHA and the Union
independently filed motions for summary judgment. For the
reasons discussed below, both motions are granted.
following facts are drawn from the parties' Rule 56.1
Statements and the evidence submitted by the parties in
connection with the present motion. For purposes of this
motion, all factual disputes are resolved, and all reasonable
inferences are drawn, in favor of Plaintiffs. See Wright
v. N.Y. State Dep't of Corr., 831 F.3d 64, 71-72 (2d
Brian Wynn is a black male who has been employed by Defendant
NYCHA since 1996. Plaintiff John Williams is a black male who
has been employed by NYCHA since 1997. Plaintiff Awilda
Guzman is a Hispanic female who worked for NYCHA from 1995 to
2013. Plaintiff Jose Otero is a Hispanic male who has been
employed by NYCHA since 2000. Plaintiff Kevin Fulton is a
black male who has been employed by NYCHA since 1995. Each
Plaintiff worked for NYCHA as a “Caretaker P”
from at least 2003 to 2013, with Otero working in that role
NYCHA is a municipal entity subject to the New York Civil
Service Law. See N.Y. Pub. Hous. Law § 32.
Pursuant to the Civil Service Law, New York City
(“City”) employees are classified according to
job title, which determines their compensation level.
See N.Y. Civ. Serv. Law § 20. Workers whose
positions require that they take and pass a competitive
examination comprise the Competitive Class. See Id.
§ 44. Unskilled laborers whose positions do not require
a competitive examination comprise the Labor Class. See
Id. § 43(1). The specific job titles that fall into
each class are determined by the New York City Department of
Citywide Administrative Services (“DCAS”).
See N.Y. Civ. Serv. Law § 20; N.Y.C. Charter
§§ 811, 814; Rules of the City of New York, Tit.
55, App. A, Rules II - IV, VII § 7.3.1.
employees who are deemed to be “laborers, workmen, or
mechanics” within the meaning of New York Labor Law
§ 220 are entitled to prevailing wages, i.e.,
those wages paid for a day's work in the same trade or
occupation in the private sector. See N.Y. Lab. Law
§ 220(3)(a), (5); Ramos v. SimplexGrinnell LP,
740 F.3d 852, 856 (2d Cir. 2014); see also Local 621,
S.E.I.U., AFL-CIO v. City of New York, No. 99 Civ. 9025,
2002 WL 31151355, at *1 (S.D.N.Y. Sept. 26, 2002) (City
determines which employee titles are entitled to Labor Law
§ 220 prevailing wages). DCAS has determined that titles
classified as skilled titles in the Competitive Class are
entitled to prevailing wages. See Hanley v.
Thompson, 838 N.Y.S.2d 59, 60 (1st Dep't 2007);
see also Corrigan v. Joseph, 106 N.E.2d 593, 601
(N.Y. 1952) (workers who are members of the skilled, graded
services of the Competitive Class are entitled to prevailing
wages). Once DCAS has determined which job titles are
entitled to prevailing wages, the City Comptroller
(“Comptroller”) determines the appropriate wages
for each eligible job title. See N.Y. Lab. Law
§ 220(3)(c), (3-a).
relevant here, DCAS has authorized NYCHA to use the civil
service title of “Caretaker (H.A.)” in the Labor
Class. Within the Caretaker (H.A.) title, NYCHA has
established internal job designations, including for
Caretakers P. Caretakers P work for NYCHA assisting
Plasterers. Standard duties of the position include setting
up and cleaning up for Plasterers. Caretakers P are not
required to take a competitive examination prior to
employment, and are not paid prevailing wages for their work.
The private sector version of a Caretaker P is a Plasterer
Tender or Plasterer Helper. Unlike Caretakers P, private
sector Plasterer Tenders also work on the exterior of
buildings and mix plaster outside with a machine that
Caretakers P do not use. Private sector Plasterer Tenders
earn prevailing wages amounting to several thousand dollars
per year more than Caretakers P. In 2000, the Comptroller
issued an annual report which includes a number of prevailing
wage determinations. The report states that a consent
determination was entered for the title Plasterer Helper, but
does not state the outcome of the determination or what
duties a “Plasterer Helper” performs.
result of their positions as Caretakers P, Plaintiffs are or
were each members of Defendant Union. The Union represents
Caretakers P in collective bargaining with NYCHA, which
determines the Caretakers' compensation. The Union also
represents other NYCHA workers including Mason's Helpers,
who assist Bricklayers by setting up scaffolds, mixing
mortar, cleaning the work site and lugging tools, among other
tasks. Mason's Helpers are members of the skilled,
Competitive Class of the civil service, and must take a
competitive examination prior to employment. As a result of
their status as skilled employees, Mason's Helpers are
entitled to prevailing wages. According to Plaintiffs,
Mason's Helpers do less work than Caretakers P. While
approximately 94 percent of Caretakers P are black or
Hispanic, over 60 percent of Mason's Helpers are white.
2007, following complaints by Caretakers P, the Union's
attorney filed a complaint with the Comptroller, seeking
prevailing wages for Caretakers P. The Comptroller rejected
the Union's complaint in February 2008, stating that
Caretakers are not entitled to prevailing wages, as they are
neither classified within the Competitive Class of the civil
service nor employed by public work contractors or
subcontractors. In March 2008, the Union's attorney
requested that DCAS reclassify Caretakers P into a job title
eligible for prevailing wages. DCAS rejected the Union's
request in May 2008, stating that neither “Caretaker
P” nor “Plasterer Helper” was a recognized
title in the skilled class of the civil service and that
Caretakers P are not entitled to be classified as skilled
workers subject to a prevailing wage.
April 2010, the Union and NYCHA entered into an agreement
that provided for an expansion of duties and an increase in
pay for Caretakers P (the “Agreement”). As a
result of their expanded duties, Caretakers P were expected
to use tools, mix plaster, engage in demolition and work side
by side with the Plasterers applying plaster and wire, among
other new tasks. At no time did the expanded duties require
Plaintiffs to work on the exterior of buildings or with
certain machines used by private sector Plasterer Helpers.
Agreement also provides for the development and
implementation of a training program for the expanded duties,
and states that NYCHA “agrees to use its best efforts
to petition” DCAS to create a “Plasterer's
Helper (H.A.)” title incorporating the expanded duties.
It further provides that NYCHA and the Union will jointly ask
DCAS to consider the expanded duties as creditable experience
toward meeting the qualification requirements of the skilled
the adoption of the Agreement, NYCHA created a training
program related to the expanded duties and an assessment
program by which Caretakers P would be evaluated on their
progress in learning and performing their expanded duties.
Only 42 percent of Caretakers P passed their initial
assessment. More Caretakers P later passed the second
assessment test. While NYCHA has intermittently referred to
its Caretakers P as Plasterer Helpers, NYCHA has not
petitioned DCAS to create a formal Plasterer's Helper
title since the Agreement was signed. Nor have NYCHA and the
Union jointly petitioned DCAS to reduce the amount of time
for a Caretaker P to become a Plasterer.