Opinion
Index No. 514002/2022 Cal. 1 Mot. Seq. 1
03-14-2024
Ahmad Alli, Dewkoemar Mohan, Nelson Chen, Roger Sankerdial, and all others similarly situated, PLAINTIFFS, v. The City of New York, Keechant Seewell, individually, and Dermot Shea, individually, DEFENDANTS.
Unpublished Opinion
DECISION/ORDER
PATRIA FRIAS-COLÓN, JUDGE
Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:
NYSCEF Doc #s 12-35; 45-48 by Plaintiff
NYSCEF Doc #s 42-44 by Defendant City
Upon the foregoing cited papers and after oral argument on January 31, 2024, pursuant to Article 9 of the CPLR, Plaintiffs Motion for an Order: (1) certifying this action as a class action; (2) providing that notice be sent via mail to proposed class members; (3) appointing the Law Office of John A. Scola, PLLC and the Law Office of Jack Jaskaran, PLLC as class counsel; and (4) appointing Plaintiffs Alli, Mohan, Chen, and Sankerdial as joint class representatives is DENIED in its entirety.
Background
On May 13, 2022, Plaintiff Alli, a retired Captain with the New York Police Department ("NYPD"), commenced this proposed class action against the City of New York ("the City") and individual Defendants Keechant Seewell ("Seewell") and Dermot Shea ("Shea"), the NYPD's former Police Commissioners (collectively, "the City Defendants"), by filing a summons and a complaint.
NYSCEF Doc# 1.
On October 17, 2022, Plaintiffs Alli, Mohan, Chen and Sankerdial, each a retired or current Captain with NYPD and of Asian descent, filed a 73-page amended class action complaint for:
"race discrimination in the form of the Defendants' disparate treatment of Asian NYPD Captains in terms of promotions above the rank of Captain in the NYPD...in violation of the New York City Human Rights Law [NYCHRL] as codified in Title 8 (Civil Rights), Chapter 1, of the New York City Administrative Code."
NYSCEF Doc #7 at 1.
The amended complaint alleges that:
"[t]he NYPD's pattern and practice of depriving Asian Captains of promotions above the rank of Captain when compared to other races, and in particular White Captains, is well known by Defendants because they possess the data showing the disparate practice, yet no corrective actions, such as establishing fair, transparent, and objective promotional standards, have been taken to cure the discriminatory practices."
Id. at ¶ 7.
The amended complaint alleges that Plaintiffs Alli, Chen and Sankerdial are retired NYPD Captains, while Plaintiff Mohan is an active-duty NYPD Captain, who commenced this class action on behalf of "those similarly situated, to vindicate their rights and the rights of the Proposed Class for race discrimination related to the disparate application of promotions above the rank of Captain" for Asian NYPD Captains. It further alleges that "[t]he Plaintiffs herein are all decorated NYPD Captains, but because of their race (Asian), they were repeatedly passed over for discretionary promotions above the rank of Captain in lieu of less qualified non-Asian Captains." "Disheartened and humiliated by the NYPD repeatedly passing them over for promotion, three (3) of the Captains herein decided to retire from the NYPD with over twenty years of service each."
Id. at ¶ 8.
Id. at ¶ 20.
Id. at ¶ 27.
The amended complaint alleges that "[o]nce an officer attains the highest rank (Captain) that is attainable through a civil service promotional examination, she/he/they can only be promoted above that rank (Captain) at the discretion of Defendant CITY OF NEW YORK'S Police Commissioner." It further alleges that "[t]he ranks above Captain in ascending order are, Deputy Inspector, then Inspector, then Deputy Chief, then Assistant Chief, then Bureau Chief, and finally, Chief of Department" (Uniformed NYPD Executives). The amended complaint alleges that "Defendants, as a matter of practice, discriminate against Asian Uniformed Executives, which is evidenced by the lack of a proportional representation of [them] in the ranks above Captain when compared to White Captains" "based on the NYPD's own data of its demographic composition." The amended complaint alleges that throughout the years since 2010, NYPD data proves that "Asian NYPD Captains had received the lowest rate of discretionary promotions."
Id. at ¶ 11 [emphasis added] and ¶¶ 61 and 64.
Id. at ¶ 12 and ¶¶ 58-59.
Id. at ¶¶ 16 and 18.
Id. at ¶¶ 70-72.
The amended complaint also alleges, upon information and belief, that the NYPD "demonstrated in at least 2018 that it was aware that Asian NYPD Captains (males at least) were the recipient of the fewest number of discretionary promotions and spent the longest time in the rank of Captain" when "the Director of the NYPD's Legal Bureau's Civil Section...and three (3) NYPD Captains detailed as Deputy Inspectors, conducted research, and wrote a policy recommendation paper...on 'The Discretionary Promotion Process from Captain to Deputy Inspector.'" Allegedly, "[d]espite this awareness, the City of New York did not correct the disparate application of discretionary promotions that resulted in a disparate impact on Asian NYPD Captains..."
Id. at ¶¶ 73 and 77-78 [emphasis added],
Id. at ¶ 79.
The amended complaint alleges that "[o]n November 18, 2021, in response to Mayor's Executive Order 67 and New York City Resolution 1584-2021, the NYPD implemented Administrative Guide Procedure 329-27 (hereinafter...'A.G. 329-27') which is entitled 'Discretionary Promotion Process for Uniformed Executives.'" However, the amended complaint alleges that "[n]either A.G. 329-27, nor any other publication by the City of New York or its Police Department provides any information on how the NYPD's Executive Discretionary Promotion Review Committee arrives at its determination as to which qualified candidate to recommend to the Police Commissioner for a discretionary promotion." Allegedly, "[d]espite the efforts of the New York City Council to engender equity in the NYPD's discretionary promotion process for NYPD Captains, the NYPD continues its discriminatory practice of depriving Asian Captains of a fair opportunity to receive a discretion promotion." The amended complaint alleges that out of the 725 NYPD Captains, 384 have been awarded a discretionary promotion by race, and a smaller percentage of Asian NYPD Captains have received discretionary promotions. The amended complaint describes each of the four Plaintiffs, their NYPD employment histories, their accomplishments leading to their promotions to NYPD Captain and that they were (or are) all Asian NYPD Captains who were passed over for discretionary promotions based on their Asian descent.
Mayor's Executive Order 67 allegedly "required that before NYPD made any discretionary designation to fill any senior position, NYPD must conduct a meaningful interview of at least one qualified applicant for each open position who is of a race that is underrepresented in senior positions at the NYPD" Id. at ¶ 93.
New York City Resolution 1584-2021 allegedly "specifically required that the NYPD reform its discretionary promotion process to focus on transparency and fairness" Id. at ¶ 90.
Id. at ¶ 96.
Id. at ¶ 117.
Id. at ¶ 124.
Id. at ¶¶ 123-150.
Id. at ¶¶ 155-207; 208-272; 273-312; and 313-365.
The amended complaint specifically identifies the Proposed Class as:
"All Asian NYPD Employees that are currently in the rank of Captain or have retired at the rank of Captain within the last three (3) years from the [NYPD] or during the applicable liability or statute of limitations period up to and including the date of any judgment in this case."
Id. at ¶ 367.
Regarding the size of the Proposed Class, the amended complaint alleges that "[w]hile the exact number of Proposed Class members is unknown because such information is in the exclusive control of the Defendants, upon information and belief[,] there are at least 64 eligible class members who have been the victim of the discriminatory conduct described herein."
Id. at ¶ 369.
The amended complaint further alleges that Plaintiffs and the Proposed Class share the following questions of law and fact in common:
"Whether Plaintiff and the Proposed Class were subject to discriminatory employment practices as a result of the Defendant CITY's failure to promote Asian Captains to Deputy Inspector;
"Whether Plaintiffs and the Proposed Class were treated less favorably and disallowed from the benefits offered by Defendant CITY as a result of their race;
"Whether Defendant had a pattern, practices and/or policies fostering and resulting in systemic unlawful discrimination, including but not limited to, failing to promote Asian Captains, unequal opportunities, and unequal benefits; and
"Whether Defendant knowingly permitted this discriminatory treatment to fester and intentionally ignored complaints regarding race discrimination within the NYPD."
Id. at ¶ 373.
The amended complaint asserts three causes of action: (1) strict liability for discrimination in violation of NYCHRL § 8-107(13)(b); (2) discrimination in violation of NYCHRL § 8-107(1)(a); and (3) disparate impact in violation of NYCHRL § 8-107(17). On March 7, 2023, Defendants jointly answered the amended complaint, denied the material allegations therein and asserted various affirmative defenses.
NYSCEF Doc # 10.
Plaintiffs' Instant Motion for Class Certification
On May 8, 2023, Plaintiffs moved to certify the Proposed Class and for related relief. Plaintiff Mohan, the only Plaintiff who is still with the NYPD, submitted a supporting affidavit attesting that he began working for the NYPD in December 1997, performed well in his position and was eventually promoted to Captain in January 2015. Mohan attests that he "excelled in [his] role and regularly inquired about a promotion to Deputy Inspector." Mohan further attests that "[a]fter demonstrating [his] ability to excel as a Commanding Officer...[he] continued to seek a Commanding Officer position within the NYPD, which would presumably enable [him] to attain a promotion to Deputy Inspector." Mohan attests that "based on [his] unblemished record and work performance, [he] would regularly be chosen to train newly promoted incoming Captains" and that "[o]ften, White Captains that [he] trained would subsequently be promoted to Deputy Inspector ahead of [him]."
NYSCEF Doc# 14 at ¶¶ 3-13.
Id. at ¶ 20.
Id. at ¶ 26.
Id. at ¶¶ 28-29.
Mohan asserts that:
"when it came to being promoted above the rank of Captain to Deputy Inspector, I have remained in the rank of Captain for more than eight (8) years now because a promotion to Deputy Inspector is not achieved through a competitive civil service process, but is instead carried out through a discretionary promotional process that is still based on unknown standards which allows the NYPD to pass over qualified Asian NYPD Captains in favor of less qualified White NYPD Captains."
Id. at ¶ 62 [emphasis added].
Mohan further attests that:
"I believe that the NYPD's practice of not promoting Asian Captains to the rank of Deputy Inspector at the same rate as White Captains is unlawful and I am very interested in protecting the rights of the other former NYPD Captains of Asian descent who were deprived of an opportunity to be promoted to the rank of Deputy Inspector. I am also very interested in protecting the rights of the other current NYPD Captains of Asian descent
who were deprived of an opportunity to be promoted to the rank of Deputy Inspector.
"Based on my 24 years of service in the NYPD, I personally believe that most of the current NYPD Captains of Asian descent will be too afraid to initiate individual lawsuits against the NYPD to address the unfair race-based discretionary promotional process"
Id. at ¶¶ 70-71 [emphasis in original],
Plaintiff Mohan asserts that Captains of Asian descent may fear retaliation, like the transfer he received to a precinct that was more than two hours away from his home after he inquired about a promotion.
Plaintiff Chen, a retired Captain, submits an affidavit attesting about his tenure in the NYPD, which started in December 1997, continued through his promotion to Captain in 2014 (when he scored highest on the Civil Service examination for the rank of Captain), and ended with his May 2021 retirement. Chen attests that:
NYSCEF Doc # 15 at ¶¶ 1, 3, 18 and 32.
"Throughout my time as an Executive Officer, I had repeatedly inquired about being awarded a Commanding Officer position and being promoted to Deputy Inspector.
"My repeated inquiries fell on deaf ears, and I was forced to remain as an Executive Officer and never received a promotion to Deputy Inspector."
Id. at ¶¶ 21 and 22.
When Plaintiff Chen inquired about getting a promotion, like Plaintiff Mohan, Plaintiff Chen was allegedly transferred to another precinct that was far from his home in retaliation. Plaintiff Chen attests that "[w]hile in the rank of Captain, [he] watched repeatedly as numerous [w]hite Captains were promoted to Deputy Inspector despite having less experience on the job, and less time in rank than [him]." Plaintiff Chen attests that he ultimately "retired in frustration because [he] realized that despite being qualified to be a Commanding Officer or to receive a promotion to Deputy Inspector, [his] qualifications meant very little because [his] race was a factor to the NYPD..."
Id. at ¶¶ 23-28.
Id. at ¶ 30.
Id. at ¶ 34.
Plaintiff Sankerdial, also a retired Captain, submits a similar affidavit attesting that "[he] excelled in [his] role as a Captain from 2016 until 2022 but was not promoted to Deputy Inspector, nor was [he] awarded a Commanding Officer position despite being qualified" Plaintiff Sankerdial attests that "[a]t the time of [his] retirement, [he] had remained a Captain for nearly six (6) years without ever being promoted to Deputy Inspector" and "[he] was denied a promotion to Deputy Inspector because of [his] race."
NYCEF Doc# 16 at ¶ 54.
Id. at ¶¶ 60-61.
Plaintiff Alli, another retired Captain, similarly attests that "[f|rom the time of [his] promotion to Captain in July 2009 to July 2013, several non-Asian NYPD Captains who were less qualified than [he was,] received a discretionary promotion to the rank of Deputy Inspector." Plaintiff Alli asserts that "[d]espite excelling in [his] assignments as a Captain, [he] never received a promotion to Deputy Inspector and remained a Captain until the date of [his] retirement on June 30, 2020" and "[d]espite being qualified [he] was denied a promotion to the rank of Deputy Inspector because of [his] race."
NYSCEF Doc# 17 at ¶ 33.
Id. at ¶¶ 49 and 54.
Plaintiffs also submit a supporting memorandum of law asserting that:
"[t]his proposed class action seeks to remedy the systemic infirmities associated with Defendant City's Police Department's practice of using its Discretionary Promotion Process to award discretionary promotions to ranks above Captain. This practice permitted Defendants to engage in unlawful race discrimination against Asian NYPD Captains."
NYSCEF Doc #35 at 2.
Plaintiffs argue that "the secretive and standardless process at the NYPD permitted it to award discretionary promotions to ranks above Captain to [w]hite NYPD Captains and other non-Asian Captains at a higher rate than [they] were awarded to Asian NYPD Captains" for at least a decade based on statistics maintained by the NYPD Police Commissioner's Office of Management Analysis and Planning (OMAP).Plaintiffs assert that their "common discrimination claims all spring from Defendant City's Police Department's practice of using its secretive and standardless Discretionary Promotion Process to deprive them of promotions to ranks above Captain."
Id. at 3 [emphasis added],
Id. at 4.
Plaintiffs seek to certify a class comprised of:
"[a]ll NYPD Captain of Asian descent, who from September 27, 2018, until the present date, were not promoted to the discretionary rank of Deputy Inspector."
Id. at 5.
Plaintiffs asserts that "[t]his proposed class action [if certified, would]...remedy a systemic malady involving the NYPD's Discretionary Promotion Processf,]" and that the Third Department in Hurrell-Harring v State, (81 A.D.3d 69 [2011]), has held that "claims of systemic deficiencies which seek widespread, systematic reform" should be maintained as a class action. Plaintiffs conclude that class certification is proper because this proposed class action satisfies the required elements of CPLR §§901 and 902.
In Hurrell-Harring, the Third Judicial Department certified a class of "[a]ll indigent persons who have or will have criminal felony, misdemeanor, or lesser charges pending against them in New York state courts in [the counties] who are entitled to rely on the government of New York to provide them with meaningful and effective defense counsel" (81 A.D.3d at 71).
NYSCEF Doc #32 at 5-6.
Id. at 8-24.
The City Defendants' Opposition
In opposition, the City Defendants submit a memorandum of law arguing that Plaintiffs' motion should be denied because they failed to satisfy the statutory requirements of CPLR §§901 and 902 (namely, commonality, typicality and adequacy) and further that Plaintiffs failed to identify a promotion policy or practice by the City that had a disparate impact on the proposed class to support a disparate treatment claim under the NYCHRL. The City Defendants contend that Plaintiffs cannot show that there are common questions of law and fact because:
NYSCEF Doc # 42 at 6-7 and 9.
"(1) their allegations of across-the-board discrimination in promotions are conclusory; and (2) questions about why a given employee was or was not promoted turns on an individualized determination that is not common from one class member to the next."
Id.
Next, the City Defendants argue that Plaintiffs "are unable to meet th[e] typicality requirement because proof that one of the Plaintiffs was discriminated against would not prove that another potential class member was discriminated against." In that regard, the City Defendants assert that "[b]ecause factual and legal inquiries about why one Captain was promoted or even eligible for promotion differ from class member to class member, there is no predominant inquiry."
Id. at 6.
Id. at 7.
The City Defendants further argue that "[a] class action is not the superior method for fair and efficient adjudication in the present controversy" because "each [NYPD] department/precinct engaged in its own processes to address promotions..." The City Defendants conclude that "a fact-specific approach to adjudication is needed to understand each precinct's operations, staffing needs, organizational structure, and process for identifying which Captains to promote."
Id.
Id.
Plaintiffs' Reply
In reply, Plaintiffs submit a memorandum of law asserting that the statistics alone of the smaller percentage of Asian NYPD Captains that have received discretionary promotions to the Uniformed Executive position as compared to non-Asian NYPD Captains is sufficient to set forth a plausible disparate impact claim warranting class action certification. Plaintiffs also submit, for the first time on reply, an "expert" affidavit from retired Deputy Inspector Edward Carrasco, regarding the Police Commissioner's review and selection of potential candidates to the Uniformed Executive rank. Carrasco's affidavit, having been submitted on reply, will not be considered by the Court.
See NYSCEF Doc # 45 at 8-10.
NYSCEF Doc # 47.
See Sawyers v Troisi, 95 A.D.3d 1293, 1294 (2d Dept. 2012) (holding that "(t)he affidavit of the defendants' expert was improperly submitted for the first time with the defendants' reply papers").
Discussion
In moving for class certification, "[t]he proposed class representative bears the burden of establishing compliance with the requirements of both CPLR §§ 901 and 902." Krobath v South Nassau Comm. Hosp., 178 A.D.3d 805, 806 (2d Dept 2019). The prerequisites articulated in CPLR § 901(a) include:
"proof that the proposed class is so numerous that joinder of all members is impracticable, that common questions of law and fact applicable to the class predominate over questions affecting only individual members, that claims or defenses of the representative parties are typical of the claims or defenses of the class, and that the class action is superior to other available methods for the fair and efficient adjudication of the controversy" Globe Surgical Supply v GEICO Ins. Co., 59 A.D.3d 129, 135-136 (2d Dept. 2008).
"These factors are commonly referred to as the requirements of numerosity, commonality, typicality, adequacy of representation and superiority." City of New York v Maul, 14 N.Y.3d 499, 508 (2010). The proposed class action must also meet the prerequisites of CPLR § 902(1)-(5) which requires consideration of (1) "[t]he interest of members of the class in individually controlling the prosecution or defense of separate actions"; (2)" [t]he impracticability or inefficiency of prosecuting or defending separate actions"; (3) "[t]he extent and nature of any litigation concerning the controversy already commenced by or against members of the class"; (4) "[t]he desirability or undesirability of concentrating the litigation of the claim in the particular forum"; and (5) "[t]he difficulties likely to be encountered in the management of the class action." Furthermore, "New York's statutory class certification provisions are to be liberally construed," and the ultimate determination of whether to grant or deny class certification is vested in the trial court's sound discretion, see Cooper v Sleepy's LLC, 120 A.D.3d 742, 743 (2d Dept. 2014).
Andryeyeva v New York Health Care, Inc., 33 N.Y.3d 152, 183 (2019); see also Krobath, 178 A.D.3d at 806.
CPLR § 901(a)(1) requires a showing that the class is so numerous that joinder of all members is impracticable. Although there is no set number which establishes numerosity, "[i]t has been held that the threshold for impracticability of joinder seems to be around forty." Here, the amended complaint alleges that while the exact number of Asian NYPD Captains who have been improperly passed over for a discretionary promotion "is in the exclusive control of Defendants, upon information and belief there are at least 64 eligible class members who have been the victim of the discriminatory conduct described herein."However, other than statistics regarding the number of NYPD Captains of Asian descent, Plaintiffs have not presented any other factual data demonstrating (or even suggesting) that the number of Asian NYPD Captains who have been discriminately passed over for a discretionary promotion in violation of the NYCHRL is so numerous that a class action is warranted and necessary.
Globe Surgical Supply, 59 A.D.3d at 138 [citations omitted],
NYSCEF Doc # 7 at ¶ 369 [emphasis added].
CPLR § 901(a)(2) requires that a common question of law or fact be predominate over any questions affecting only individual members. The Supreme Court of the United States held that "predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods, v Windsor, 521 U.S. 591, 623 (1997).
The amended complaint alleges that Plaintiffs and other putative class members were similarly discriminated against because they and other Asian NYPD Captains have been subject to the same discretionary promotion process while employed by the NYPD. However, the work performance of each Asian NYPD Captain, their particular NYPD assignments, and their job experiences are by no means identical. The proposed class is not sufficiently cohesive because each of the proposed class members' claims, as well as Plaintiffs' discrimination claims, require an individualized inquiry since promotions beyond Captain are on a discretionary basis and the putative class members worked at different NYPD precincts and departments. As the City Defendants properly asserted, "[t]he myriad of individualized issues behind whether a Captain of Asian descent was promoted or not, are issues unique to each purported class member," "the propriety of each promotional decision will need to [be] assessed" and "[factual and legal inquiries about why one NYPD officer was promoted or even eligible for promotion differ from class member to class member; [and therefore] there is no predominant inquiry."
NYSCEF Doc # 42 at 8-9.
CLPR § 901(a)(3) requires the claims of the representative parties to be typical of the claims of the class. Plaintiffs have also failed to demonstrate that their employment discrimination claims are typical of the putative class. The mere fact that an Asian NYPD officer has reached the position of Captain does not automatically entitle him or her to a subsequent promotion to a discretionary Uniformed Executive rank. Other than data reflecting the percentages of Asian NYPD Captains who have received a discretionary promotion as compared to the non-Asian NYPD Captains, Plaintiffs have failed to identify any discriminatory conduct by the City Defendants as against those in the putative class. Consequently, Plaintiffs have failed to demonstrate that their discrimination claims are typical of the proposed class and/or how they can effectively represent other Asian NYPD Captains who have had vastly different NYPD employment histories and job performances.
Finally, Plaintiffs have failed to demonstrate that a class action is "superior" to other available methods of efficient adjudication, pursuant to CPLR § 901(a)(5). Adjudication of Plaintiffs' claims, which are unique to their own employment situations and experiences, are more appropriately litigated separately because it would be both impractical and inefficient to litigate this action as a class action given the vastly distinct factual circumstances of each claimant's employment history.
Accordingly, Plaintiffs' motion to certify this action as a class action is denied in its entirety.
This constitutes the Decision and Order of the Court.