Key Case Developments

Order Directing Filing of Motion for Preliminary Approval of Settlement and Submission of Proposed Notice of Settlement of Class Action and Settlement Fairness Hearing Date

On October 24, 2018, the court issued an ORDER directing that Plaintiffs file a Motion for Preliminary Approval of Settlement, along with the final proposed Settlement Agreement, and Defendant City of New York  file and submit a Proposed Notice of Settlement of Class Action and Settlement Fairness Hearing (“Notice”) for the Court’s approval.

Plaintiffs’ Motion for Preliminary Injunction

On January 27, 2014, Plaintiffs moved for a preliminary injunction against the City and DC 37 (Dkt. # 43 – Click here.  While the motion for preliminary injunction was pending, on March 6, 2014, DC 37 filed answer to the complaint, denying the allegations of the complaint. (Dkt. # 64 — Click here

Denial of Motion for Preliminary Injunction with Leave to Renew

Following oral argument for the injunction on March 20, 2014, Judge Chen denied Plaintiffs’ motion for a preliminary injunction “except that in the event of a change in circumstances or new evidence, Plaintiffs may seek leave to renew their motion”. Click here 

Plaintiff’s Amended Complaint

Despite denying the motion for preliminary injunction, the Court granted Plaintiffs leave to amend the complaint. Plaintiffs thereafter filed an amended complaint on April 17, 2014 (Dkt. # 77). Click here

Defendants’ Motion to Dismiss the Claims in the Complaint

On June 26, 2014, the City and DC 37 served Plaintiffs with their respective motion to dismiss their claims. On November 05, 2014, Plaintiffs responded to DC 37’s and the City’s motions (Dkt. # 90 and 94). Thereafter, Defendants submitted their respective replies to Plaintiff’s opposition (Dkt. # 89-2 and 93).

Plaintiff’s Motion for Class Certification

On May 8, 2015, Plaintiffs moved for class certification under Rule 23(a) and (b)(2) for their (i) FMLA claim, (ii) their Section 1981 Teamster pattern-or-practice claim for racial discrimination, and (iii) the City’s breach of the Collective Bargaining Agreement for cancellation of sick leave. (Dkt. # 104-106).

Plaintiffs seek certification under FRCP 23(a) and 23(b)(2) on liability and for an injunction of a “§ 1981 Class” and a “FMLA Class,” defined as  follows: 

Section 1981 Racial Discrimination Rule 23(b)(2) Class

All minority individuals who are currently employed, or have been employed within three years preceding the filing of this action, by the City of New York as Police Communications Technicians (“PCTs”) or Supervisor Police Communication Technicians (“SPCTs”) in the NYPD Communications Section.

FMLA Rule 23(b)(2) Class

All minority individuals who are currently working in the civil services titles of PCT and SPCT in the NYPD Communications Section who are eligible for FMLA leave.

The above definition of members for the FMLA class is limited to operators still employed by the City since only they will benefit from the injunctive relief sought in this action.

Both the City Defendants and DC 37 oppose certification, and May 8, 2015, DC 37 and the City respectively responded to Plaintiffs’ motion for class certification (Dkt. # 110-113 and 114). Thereafter, Plaintiffs submitted separate replies to the City and DC 37’s opposition (Dkt. # 107, 108, and 109).

Decision Partially Denying Motion to Dismiss and Granting Class Certification

Decision on Motion to Dismiss: On September 28, 2015, by a memorandum and order, the Court granted in part and denied in part the City’s motion to dismiss Click here and dismissed the following claims as to the City Defendants:

(1) Plaintiffs’ FMLA interference claim based on certification delay, miscalculation of eligibility hours, use of a designated FMLA number, and investigation of FMLA use (fifth cause of action);

(2) Plaintiffs’ FMLA retaliation claim based on the “high absentee” list (fifth cause of action);

(3) Plaintiffs’ First Amendment retaliation claim (fourth cause of action); and

(4) Plaintiffs’ New York State Labor Law claim with respect to denying 911 Operators meal breaks (seventh cause of action).

Based on the Court’s decision, the following claims are not dismissed and will proceed:

(1) Plaintiffs’ racial discrimination claims under §§ 1981 and 1983 (first cause of action);

(2) NYSHRL racial discrimination claim (second cause of action);

(3) NYCHRL racial discrimination claim (third cause of action);

(4) Plaintiffs’ FMLA interference claim based on the 30−minute call window and the miscalculation of FMLA hours used (fifth cause of action);

(5) Plaintiffs’ FMLA retaliation claim based on the requirement to perform mandatory overtime immediately upon returning from leave (fifth cause of    action); and

(6) Plaintiffs’ breach of contract claim against the City and DC 37 with respect to the CBA (sixth cause of action).

DC 37’s motion to dismiss Plaintiffs’ § 1981 racial discrimination claim (tenth cause of action) is granted insofar as Plaintiffs assert a direct discrimination claim, but denied on an acquiescence theory.  Since DC 37 did not move to dismiss Plaintiffs’ breach of duty of fair representation claim (eighth cause of action), that claim will proceed.

Decision on Class Certification:

By the same September 29, 2015 decision, Plaintiffs’ motion to certify the proposed § 1981 and FMLA classes, pursuant to FRCP 23(b)(2) for liability and injunctive relief, was also  granted by the Court.

In granting class certification, the Court noted the following:

Certification under FRCP 23(b)(2) is appropriate in this case with respect to the claims against both the City Defendants and DC 37.

With respect to their §1981 claim against the City Defendants, Plaintiffs have made a sufficient showing, by a preponderance of the evidence, that the City Defendants acted on grounds generally applicable to the proposed class. The Amended Complaint includes repeated instances when the City Defendants issued a blanket cancellation of sick leave for 911 Operators, scheduled 911 Operators for consecutive double-shifts and/or overtime shifts, and required 911 Operators who request reasonable ADA accommodations, in the form of limited overtime hours, to undergo “sham” medical examinations.

With respect to the FMLA class, Plaintiffs submitted a memorandum circulated by Kelly on July 23, 2013, announcing that because “members of squads scheduled for overtime three times a week . . . are  reporting sick or FMLA to avoid overtime”, all platoon commanders will conduct daily reviews of sick and FMLA lists for the previous day’s tour and order overtime on the current tour for any 911 Operator “who reported sick or FMLA for their squad’s ordered overtime tour on the previous day . . . even if their squad is not ordered.”  Plaintiffs also submitted an email from Belusic stating that the disciplinary unit will only accept emergent FMLA requests at most 30 minutes prior to the time of requested leave. Additionally, Plaintiffs submitted declarations from the named Plaintiffs and members of the proposed class attesting to these violations, and to DC 37’s repeated failure to meaningfully protect their rights.  The requested injunctive relief, insofar as it seeks to enjoin these policies and to obtain a declaratory judgment, would remedy these alleged wrongs class-wide.

With respect to the Section 1981 claims against it, DC 37 contends that Plaintiffs cannot show by a preponderance of the evidence that DC 37 acted or refused to act on generally applicable grounds because the core factual allegations underlying Plaintiffs’ § 1981 claims “have been shown to be false”, thereby rendering these claims moot.  See Comer, 37 F.3d at 800 (to establish mootness, a party who claims to have voluntarily ceased illegal conduct must demonstrate that there is no reasonable expectation that the conduct will occur, and that interim relief or events have completely eradicated the effects of the alleged violation). DC 37 has submitted affidavits detailing DC 37’s advocacy on behalf of the 911Operators, including, in particular, the grievance it filed on January 31, 2014 regarding sick leave cancellations in late 2013 and early 2014.  (Dkt. 61 ¶ 51 & Ex. J; see Dkt. 112). On November 28, 2014, DC 37 and the City reached a settlement agreement in which (1) the NYPD acknowledged that it cannot deny NYPD employees the right to request sick leave, (2) agreed to reimburse any DC 37 member who was docked pay and designed as “AWOL” for attempting to use sick leave, and (3) rescind discipline imposed on DC 37 members for attempting to use sick leave.  (Dkt. 113 ¶ 5 & Ex. A). However, as Plaintiffs correctly counter, DC 37’s recent efforts do not render Plaintiffs’ claims moot since these efforts have not resulted in meaningful relief.  Plaintiffs have submitted affidavits from the named Plaintiffs attesting to the facts that sick leave continued to be canceled from December 31, 2014 to January 1, 2015 and again from January 26, 2015 to January 28, 2015, and that DC 37 is aware of these ongoing cancellations by the City Defendants.  (Dkt. 109−2 ¶¶ 10−12, 15; 109−3 ¶¶ 10−12, 15).  If true, these facts further support the Amended Complaint’s claim that DC 37’s alleged failure to protect the 911 Operators by, inter alia, not enforcing agreements with the City, are ongoing.  Plaintiffs contend that the November 2014 agreement is only the latest example of a long history of DC 37 failing to secure practical relief for Plaintiffs, and that class certification is necessary for Plaintiffs to finally obtain relief class wide.  (Dkt. 108 at 5.)  Since this history creates a reasonable expectation that the complained-of conduct, namely DC 37’s failure to protect 911 Operators, will recur, Plaintiffs’ claims are not moot.  See Comer, 37 F.3d at 800.

Based on the above, the Court concluded that:

Because Plaintiffs have alleged the existence of City policies and practices that pose a legitimate, non-speculative threat to Plaintiffs’ rights, the Court certifies both the § 1981 and FMLA classes to seek declaratory and injunctive relief pursuant to FRCP 23(b)(2).

Initial Scheduling Conference and Joint Discovery Plan

Immediately following class certification, on September 29, 2015, Magistrate Judge James Orenstein directed that the parties appear for an initial discovery on October 27, 2015 (Dkt# 117). Pursuant to the order, the parties were required to submit a joint proposed discovery plan by October 23, 2015. However, by an order dated October 20, 2015, Magistrate Judge Orenstein changed the initial conference date to November 4, 2015 and the date for submission of the joint proposed discovery plan from October 23 to November 2, 2015 (Dkt#118).

Pursuant to the Order of Magistrate Judge Orenstein, the parties met and agreed on a number of discovery issues.

Order Establishing Case Management Plan (schedule for discovery or exchange of information was entered on November 4, 2015 at 9:30 A.M. by Magistrate Judge Orenstein Click here


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