Burgis v. New York City Department of Sanitation
798 F.3d 63
| 2d Cir. | 2015Background
- Plaintiffs (nine DSNY employees) brought a putative class action alleging race/national-origin discrimination in DSNY promotional practices (supervisor → general superintendent levels 1–4). Promotions to levels 2–4 rely on recommendations; level 1 and supervisor promotions involve written tests but invite subjective review.
- SAC included FY2011 racial percentages showing higher percentages of Whites in supervisor and higher superintendent levels relative to the sanitation-worker pool; plaintiffs alleged qualified candidates existed in proportions matching the worker pool.
- Plaintiffs alleged various individualized instances where White employees were promoted over Black/Hispanic plaintiffs, and asserted Commissioner Doherty knew of and condoned the disparity.
- District court dismissed all claims: Equal Protection and § 1981 claims for failure to allege discriminatory intent; Title VII disparate-impact claim for failure to exhaust administrative remedies.
- Second Circuit affirmed: held plaintiffs’ statistical allegations and factual pleadings insufficient to plausibly infer discriminatory intent for Equal Protection/§ 1981 claims, and plaintiffs failed to exhaust for the Title VII disparate-impact claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statistics alone can plausibly plead discriminatory intent under Equal Protection/§ 1981 | Statistics showing racial disparities in supervisory ranks infer a pattern or practice of intentional discrimination | Statistics are raw percentages lacking counts, applicant/qualifications data, openings; individual facts do not plausibly show intent | Stats can suffice in some cases, but here the statistics and pleaded facts were inadequate to infer discriminatory intent; claim dismissed |
| Whether plaintiffs pleaded sufficient individualized instances of discriminatory intent | Plaintiffs pointed to multiple alleged passes-over and promotions of less-qualified White employees | Individual allegations are conclusory, lack specifics on comparative qualifications or discriminatory statements | Individual allegations insufficiently specific to support an inference of intent; claim dismissed |
| Whether municipality/officials can be liable absent a pleaded policy or custom | Plaintiffs argue statistical pattern demonstrates municipal policy/custom and Doherty’s knowledge | City/Doherty argue no specific policy pleaded and statistics insufficient to infer intent; conclusory allegations about knowledge inadequate | Absent specific municipal policy/custom or nonconclusory factual allegations of Doherty’s involvement/knowledge, municipal and official-capacity claims fail |
| Whether Title VII disparate-impact claim was exhausted administratively | Plaintiffs argue classwide disparate-impact claim derives from the same conduct complained of administratively | Defendants argue administrative charges did not allege classwide promotion policy or disparate impact; only individual treatment | Plaintiffs failed to exhaust: administrative charges were not reasonably related to a classwide disparate-impact claim; Title VII claim dismissed |
Key Cases Cited
- Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (establishes discriminatory intent requirement for Equal Protection/§ 1981 claims)
- Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (discusses statistical standards and standard-deviation analysis for prima facie pattern-or-practice proofs)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility pleading standard for complaints)
- United States v. City of New York, 717 F.3d 72 (noting statistical disparate-impact evidence may suffice in Title VII pattern-or-practice contexts)
- Ottaviani v. State Univ. of N.Y. at New Paltz, 875 F.2d 365 (discusses threshold for disparity sufficient to infer discrimination)
- Patterson v. Cty. of Oneida, 375 F.3d 206 (municipal liability under § 1983/§ 1981 requires municipal policy or custom)