     14-1640-cv
     Burgis v. New York City Dep’t of Sanitation


 1                            UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT
 3                                                 _____________________
 4
 5                                                   AUGUST TERM, 2014
 6
 7             (ARGUED: MARCH 5, 2015                                            DECIDED: July 31, 2015)
 8
 9                                                   Docket No. 14-1640
10                                                 _____________________
11
12   ANDRENIA BURGIS, CHRISTOPHER BURGOS, LETICIA SMITH, SAMUEL DUNCAN, ALONZO
13   HUDGINS, RASHID SMITH, DOREN PINK, ANTHONY JOSEPH, ISRAEL DEJESUS, on their own behalf
14   and on behalf of others similarly situated,1
15
16                                                                 Plaintiffs-Appellants,
17
18                                                          -v.-
19
20   NEW YORK CITY DEPARTMENT OF SANITATION, JOHN J. DOHERTY,
21
22                                                                 Defendants-Appellees,
23
24   JOHN DOES, 1-10,
25
26                                                                 Defendants.
27
28
29   Before:
30             GUIDO CALABRESI, PETER W. HALL, Circuit Judges, and JED S. RAKOFF, District Judge.2
31                                    _______________________
32
33
34           In this putative class action, plaintiffs allege discrimination on the basis of race and/or
35   national origin in the New York City Department of Sanitation’s promotional practices, relying
36   essentially on statistics that allegedly show disparities in the composition of various supervisory

     1
       The caption reflects plaintiffs’ second amended complaint, dated October 4, 2013, which,
     among other things, voluntarily dismisses plaintiffs John Whitehead, Angel Fuentes, and Don
     Phillip. The Clerk of Court is respectfully directed to amend the official caption as set forth
     above.
     2
       Hon. Jed S. Rakoff, of the United States District Court for the Southern District of New York,
     sitting by designation.
                                                             1
 1   positions within the department. The district court dismissed plaintiffs’ Equal Protection and
 2   § 1981 claims for failure to allege discriminatory intent, and dismissed the Title VII disparate
 3   impact claim for failure to exhaust administrative remedies. We conclude that (1) while statistics
 4   alone may be sufficient in some circumstances to show discriminatory intent in an Equal
 5   Protection or § 1981 class claim, the statistics here alleged in the complaint were insufficient for
 6   this purpose, and (2) plaintiffs failed to exhaust their administrative remedies prior to filing the
 7   Title VII disparate impact claim. Accordingly, the judgment of the United States District Court
 8   for the Southern District of New York (Griesa, J.) is hereby AFFIRMED.
 9                                  _______________________

10   APPEARING FOR APPELLANTS:                   ARTHUR Z. SCHWARTZ and Tracey L. Kiernan,
11                                                Advocates for Justice, Chartered Attorneys, New
12                                                York, New York
13
14   APPEARING FOR APPELLEES:                  FAY NG and Pamela Seider Dolgow for Zachary
15                                               Carter, Corporation Counsel of the City of New
16                                              York, New York, New York
17                                      _______________________

18   JED S. RAKOFF, Senior District Judge:

19          Plaintiffs are individuals employed by the New York City Department of Sanitation

20   (“DSNY”), who allege that the defendants, the City of New York3 and John J. Doherty,

21   Commissioner of the DSNY, discriminated against them and others similarly situated on the

22   basis of their race and/or national origin in the DSNY’s promotional practices. Plaintiffs bring

23   this putative class action suit under the Fourteenth Amendment Equal Protection Clause, under

24   42 U.S.C. § 1981, under Title VII (42 U.S.C. § 2000e), and under the New York State and City

25   human rights laws. The district court dismissed all of plaintiffs’ claims. We affirm.

26

27

28

     3
       The complaint names the DSNY as a defendant in the lawsuit; however, as the New York City
     Charter requires all actions to be brought against the City, as opposed to any agency of the City,
     the district court correctly dismissed the DSNY as a party and construed the claims as though
     they were asserted against the City of New York.


                                                      2
 1                                           BACKGROUND

 2           The second amended complaint4 (“SAC”) makes the following factual allegations. After

 3   the DSNY promotes individuals in its ranks of sanitation workers to supervisors, it may then

 4   promote those supervisors to the position of general superintendent, ranging from general

 5   superintendent level 1 (the lowest level) to general superintendent level 4 (the highest level).

 6   Prior to 1979, DSNY based promotion to supervisor and to general superintendent levels 1–3 on

 7   written examinations, but after 1979 the examinations were eliminated for promotions to levels 2

 8   and 3. Promotions to levels 2, 3, and 4 are now done on the basis of recommendations.

 9           Plaintiffs allege that by using recommendations in this way, the DSNY has created a

10   supervisory workforce that is not representative of the racial and/or national origin composition

11   of the sanitation worker workforce. The SAC includes the following chart, which summarizes

12   the racial makeup of sanitation workers, supervisors, and general superintendents in Fiscal Year

13   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

14




     4
       On October 4, 2013, plaintiffs moved to substitute a “revised” version of the first amended
     complaint. The district court allowed the filing but correctly referred to the revised first amended
     complaint as the second amended complaint.
                                                      3
 1   Plaintiffs further allege that there are qualified candidates for supervisor in the same percentages

 2   racially as the percentages for these races that are present in the sanitation worker workforce as a

 3   whole. Finally, they allege that even with respect to the positions requiring a written test (i.e.,

 4   supervisor and general superintendent level 1), the selection process invites some subjective

 5   evaluation of candidates.

 6          As to the individual plaintiffs, the SAC alleges as follows:

 7          Plaintiff Andrenia Burgis, a Black female, started as a sanitation worker in 1998; she was

 8   promoted to supervisor in 2003, and, in 2007, she was promoted to general superintendent level

 9   1. By 2009, Ms. Burgis had obtained the prerequisites for promotion to level 2, but instead she

10   was replaced in her command at level 1 by a White male. He was subsequently promoted to level

11   2. She did not obtain another command until 2012, and a number of less qualified White

12   individuals were and have since been promoted.

13          Plaintiff Christopher Burgos, a Hispanic male, started at DSNY as a sanitation worker in

14   2000; he was promoted to supervisor in 2006. He took the exam for promotion to level 1 and is

15   currently on the list for promotion.

16          Plaintiff Leticia Smith, a Hispanic female, started at DSNY as a sanitation worker in

17   1995; she was promoted to supervisor in 2001, and she was promoted to general superintendent

18   level 1 in 2007. She has never been recommended for level 2, though she has the requisite

19   experience and White females and males with less experience have been promoted.

20          Plaintiff Samuel Duncan, a Hispanic/Black male, started at DSNY as a sanitation worker

21   in 2001; he was promoted to supervisor in 2008. He was demoted during a probationary period,

22   while White supervisors in the same position were allowed to finish probation and remain as

23   supervisors.



                                                      4
 1          Plaintiff Alonzo Hudgins, a Black male, started at DSNY as a sanitation worker in 1995;

 2   he was promoted to supervisor in 2001, and was subsequently promoted to general

 3   superintendent level 1. He has never been recommended to level 2, even though White males in

 4   his borough have been recommended and promoted.

 5          Plaintiff Rashid Smith, a Black male, started at DSNY as a sanitation worker in 1995; he

 6   was promoted to supervisor in 2000, and he was subsequently promoted to general

7    superintendent level 1. He has never been recommended for level 2, even though less qualified

 8   White males in his borough have been recommended and promoted.

 9          Plaintiff Doren Pink, a Black male, started at DSNY as a sanitation worker in 1999; he

10   was promoted to supervisor in 2004. He took the test for promotion to general superintendent

11   level 1, but has not been promoted, though many of his White counterparts who took the test at

12   the same time have been promoted despite being less qualified.

13          Plaintiff Anthony Joseph, a Black male, started at DSNY as a sanitation worker in 1989;

14   he was subsequently promoted to supervisor. Despite having passed the exam, he has not been

15   promoted to general superintendent level 1, while White employees with lower scores have been

16   promoted.

17          Plaintiff Israel Dejesus, a Hispanic male, started at DSNY as a sanitation worker in 1995;

18   he was promoted to supervisor in 2005, and he was promoted to general superintendent level 1 in

19   2008. He has never been recommended for level 2, even though less qualified White employees

20   have been recommended and promoted.

21          As for individual defendant Doherty, plaintiffs allege that he “at all times, was aware that

22   his supervisory workforce was skewed and did not reflect either the racial or national origin

23   makeup of DSNY’s nonsupervisory workforce, or the general population of the City of New



                                                     5
 1   York. Doherty, reflecting his approval of this disparate classification, has taken no action to

 2   change it, and has, therefore condoned the discrimination.”

 3          On March 31, 2014, the district court granted defendants’ motion to dismiss. With respect

 4   to the § 1981 and Equal Protection claims, the district court held that plaintiffs had failed to

 5   sufficiently allege discriminatory intent. As to the City and defendant Doherty in his official

 6   capacity, the district court further found that plaintiffs had not sufficiently pleaded that the

 7   alleged discrimination was the result of an official policy, custom, or practice. As to defendant

 8   Doherty in his individual capacity, the district court concluded that plaintiffs had not adequately

 9   alleged that he was personally involved in the alleged discriminatory promotion practices and

10   only made conclusory allegations that he knew the racial composition of the workforce. Finally,

11   the district court dismissed plaintiffs’ Title VII disparate impact claim for failure to exhaust

12   administrative remedies.

13                                              DISCUSSION

14          We review de novo a grant of a motion to dismiss under Rule 12(b)(6), accepting as true

15   all well-pleaded allegations in the complaint and drawing all reasonable inferences in plaintiffs’

16   favor. Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 107 (2d Cir. 2012). However, the

17   complaint “must contain sufficient factual matter . . . to state a claim to relief that is plausible on

18   its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

19                                                     I

20          To state a discrimination claim under the Fourteenth Amendment Equal Protection

21   Clause and/or § 1981, plaintiffs must sufficiently allege that defendants acted with

22   discriminatory intent. Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982).

23   Here, plaintiffs fail to allege in other than conclusory fashion any specific instances of



                                                       6
 1   discrimination with respect to any individual plaintiff or others similarly situated. Indeed, each

 2   plaintiff has at some point been promoted from a sanitation worker to supervisor, and five of the

 3   nine were subsequently promoted to general superintendent level 1. While the SAC generally

 4   alleges with respect to seven plaintiffs that they have been passed over for subsequent

 5   promotions while White individuals, who were allegedly less qualified, were promoted, the SAC

 6   fails to provide meaningful specifics of the alleged difference in qualifications, let alone

 7   discriminatory intent. With respect to the other two plaintiffs, plaintiffs Burgos and Duncan, the

 8   SAC alleges even less. It simply alleges that plaintiff Burgos was promoted to supervisor in

 9   2006, has taken the exam for general superintendent level 1, and is currently on the list for

10   promotion. Plaintiff Duncan, it alleges, was promoted to supervisor but subsequently was

11   demoted during a probationary period while White individuals in an allegedly similar situation

12   were not demoted.

13          These bare allegations do not present circumstances that “give rise to an inference of

14   unlawful discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

15   Without any specificity as to the qualifications considered for each position and without any

16   reference to specific statements or individual circumstances that suggest discriminatory

17   treatment, plaintiffs’ allegations do not support a finding that defendants acted with a

18   discriminatory purpose. For all that one can tell from the SAC (plaintiffs’ “third bite at the

19   apple”), it is equally possible that plaintiffs have not been promoted for valid, non-discriminatory

20   reasons. See Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are merely consistent

21   with a defendant’s liability, it stops short of the line between possibility and plausibility of

22   entitlement to relief.” (internal quotation marks omitted)).




                                                      7
1           Plaintiffs argue, however, that statistics alone may be sufficient to warrant a plausible

2    inference of discriminatory intent if they show a pattern or practice that cannot be explained

3    except on the basis of intentional discrimination. This is an issue of first impression for this

4    Circuit in the context of a putative class action alleging employment discrimination under § 1981

5    and/or the Equal Protection Clause.5 We now hold that, as some of our Title VII cases have

6    hinted, in certain circumstances (described below), statistics alone may be sufficient. Cf. United

7    States v. City of New York, 717 F.3d 72, 84 (2d Cir. 2013) (noting that while, in a Title VII

8    disparate treatment pattern or practice case, “instances of discrimination against particular

9    employees are relevant to show a policy of intentional discrimination, they are not required; a

10   statistical showing of disparate impact might suffice”); see also Hudson v. Int’l Bus. Machines

11   Corp., 620 F.2d 351, 355 (2d Cir. 1980) (stating, in a case preceding Iqbal, that “in class actions

12   alleging racially discriminatory employment practices, statistical evidence may establish a prima

13   facie case of discriminatory effect”). However, to show discriminatory intent in a § 1981 or

14   Equal Protection case based on statistics alone, the statistics must not only be statistically

15   significant in the mathematical sense, but they must also be of a level that makes other plausible

16   non-discriminatory explanations very unlikely. Cf. Hazelwood Sch. Dist. v. United States, 433

17   U.S. 299, 307–08 (1977) (holding that to “constitute prima facie proof of a pattern or practice of

18   discrimination,” a plaintiff must show “gross statistical disparities”); Ottaviani v. State Univ. of

19   New York at New Paltz, 875 F.2d 365, 371 (2d Cir. 1989) (“The threshold question in [Title VII



     5
       We have held that statistics alone are not sufficient to allege discriminatory intent in § 1981 or
     Equal Protection cases brought by an individual only on her own behalf, Martin v. Citibank,
     N.A., 762 F.2d 212, 218 (2d Cir. 1985), or in cases brought against a state official in her
     individual capacity, Reynolds v. Barrett, 685 F.3d 193, 204–05 (2d Cir. 2012). In these
     situations, we have held, broad statistical evidence, without evidence of specific instances of
     discrimination, is not relevant to whether any specific individual acted with discriminatory intent
     or whether any specific individual was the target of discrimination.
                                                      8
 1   pattern-or-practice] disparate treatment cases, then, is: “At what point is the disparity in selection

 2   rates sufficiently large, or the probability that chance was the cause sufficiently low, for the

3    numbers alone to establish a legitimate inference of discrimination?’” (quoting Palmer v. Shultz,

 4   815 F.2d 84, 92 (D.C. Cir. 1987) (alterations omitted))).6

 5          In the instant case, plaintiffs have failed to allege statistics that meet the standards

 6   articulated above. Among other shortcomings, the statistics provided by plaintiffs show only the

 7   raw percentages of White, Black, and Hispanic individuals at each employment level, without

 8   providing any detail as to the number of individuals at each level, the qualifications of

 9   individuals in the applicant pool and of those hired for each position, or the number of openings

10   at each level. See Lomotey v. CT Dep’t of Transp., 355 F. App’x 478, 481 (2d Cir. 2009)

11   (summary order) (“[Plaintiff’s] evidence that only Caucasians were selected for [job] placements

12   amounts to nothing more than raw numbers which, without further information on key

13   considerations such as the racial composition of the qualified labor pool, cannot support an

14   inference of discrimination.”).

15          Furthermore, the fact that each of the plaintiffs has been promoted at some point to the

16   position of supervisor undermines their allegations of discrimination in the promotion of

17   sanitation workers to supervisors. Five of the nine plaintiffs have also been promoted from

18   supervisor to general superintendent level 1, again calling into doubt their allegations of

19   discrimination at that phase, especially given that the racial composition between individuals in



     6
       In Hazelwood, the Supreme Court held that measuring the significance of statistical disparities
     “involves calculation of the ‘standard deviation’ as a measure of predicted fluctuations from the
     expected value of a sample.” 433 U.S. at 308 n.14. As a general rule, “if the difference between
     the expected value and the observed number is greater than two or three standard deviations, then
     the hypothesis that [the alleged discriminatory action was taken] without regard to race would be
     suspect.” Id. (internal quotation marks omitted); see also Ramona L. Paetzold & Steve L.
     Willborn, The Statistics of Discrimination § 4:11 (2014).
                                                       9
1   the supervisor and general superintendent level 1 positions is essentially the same. While there is

2   an increase in racial and national origin disparities between general superintendent level 1 and

3   levels 2 and 3, the racial composition returns at level 4 to essentially the same percentage as at

4   level 1.7 Accordingly, the district court’s decision granting defendants’ motion to dismiss the

5   Equal Protection and § 1981 claims is affirmed.8

6                                                    II

7          Turning to plaintiffs’ Title VII claim, here discriminatory intent need not be alleged in a

8   case based on so-called “disparate impact.” But we need not decide whether plaintiffs’ statistics



    7
      Plaintiffs alternatively argue that the “rule of exclusion” test established in Castaneda v.
    Partida, 430 U.S. 482 (1977), applies here. Under this test, in asserting a claim of discrimination
    in the composition of grand juries, a plaintiff must 1) show that the group is a “recognizable,
    distinct class, singled out for different treatment under the laws,” and 2) prove the degree of
    underrepresentation “by comparing the proportion of the group in the total population to the
    proportion called to serve . . . , over a significant period of time.” Id. at 494. This rule is hardly
    applicable here, where individuals are not promoted at random from the general population, but
    are considered for promotion on the basis of their individual qualifications. “When special
    qualifications are required to fill particular jobs, comparisons to the general population (rather
    than to the smaller group of individuals who possess the necessary qualifications) may have little
    probative value.” Hazelwood, 433 U.S. at 308 n.13.
    8
      Plaintiffs’ § 1981 claim and Equal Protection claim (asserted under § 1983) against the City
    and defendant Doherty in his official capacity also fail, because they have not alleged the
    discriminatory practice was caused by a municipal policy, custom or practice. “[W]hen the
    defendant sued for discrimination under § 1981 or § 1983 is a municipality—or an individual
    sued in his official capacity—the plaintiff is required to show that the challenged acts were
    performed pursuant to a municipal policy or custom.” Patterson v. Cty. of Oneida, 375 F.3d 206,
    226 (2d Cir. 2004) (internal citations omitted). Here, plaintiffs again rely on statistical evidence
    to infer a municipal policy of discrimination. For the same reasons discussed above, the statistics
    are not sufficient to give rise to an inference of discriminatory intent, and, as the district court
    found, plaintiffs do not even describe the discriminatory policy, custom, or practice on which
    their complaint is based. Their conclusory allegations that defendant Doherty knew about the
    discriminatory practice, without any allegation as to how he knew or should have known of it is
    not sufficient to establish a custom or policy. Furthermore, when compared to the fact that the
    statistical allegations are insufficient to show discriminatory intent on the part of the
    municipality, they are likewise insufficient to show liability by Doherty in his individual
    capacity. See Reynolds, 685 F.3d at 204–05. Accordingly, the district court’s dismissal of the
    case against him individually is affirmed.
                                                     10
 1   show any disparate impact, because we agree with the district court that the Title VII claim must

 2   be dismissed for failure to exhaust administrative remedies.

 3          To bring a claim under Title VII, a plaintiff must first have filed a complaint with the

 4   Equal Employment Opportunity Commission (“EEOC”) or a state equivalent—here, the New

 5   York State Division of Human Rights (“SDHR”). See 42 U.S.C. § 2000e-5. Courts may only

 6   hear claims “reasonably related” to allegations set forth in the administrative complaint. Kirkland

 7   v. Buffalo Bd. of Educ., 622 F.2d 1066, 1068 (2d Cir. 1980).

 8          Here, plaintiffs Burgis and Burgos submitted complaints of racial discrimination to the

 9   SDHR and received letters to sue from the EEOC. However, plaintiff Burgos’s administrative

10   complaint does not allege discrimination in defendants’ promotion practices. And while plaintiff

11   Burgis’s complaint alleges that she was discriminated against on the basis of race when

12   defendants removed her as general superintendent level 1 for approximately three years before

13   giving her another assignment, and by failing to promote her to level 2 when the White male who

14   initially replaced her was promoted, her complaints of individualized disparate treatment are not

15   reasonably related to a Title VII disparate impact claim alleging class-wide discrimination.

16   Woodman v. WWOR-TV, Inc., 293 F. Supp. 2d 381, 390 (S.D.N.Y. 2003), aff’d, 411 F.3d 69 (2d

17   Cir. 2005).9 Accordingly, plaintiffs failed to exhaust administrative remedies prior to filing the

18   Title VII disparate impact claim in this action, and the district court order dismissing plaintiffs’

19   Title VII claim is affirmed.

     9
       In an appropriate case, the facts pleaded in an administrative charge may well encompass a
     disparate impact claim even if the plaintiff has only “labeled” her claim as “disparate treatment.”
     To be reasonably related, a claim must be one that reasonably would be expected to fall within
     the scope of the conduct complained of in the administrative charge. See Ximines v. George
     Wingate High Sch., 516 F.3d 156, 158–59 (2d Cir. 2008) (per curiam). Here, however, the
     conduct about which Burgis and Burgos complained to the SDHR would not reasonably have led
     that agency to investigate—beyond the facts of their individual cases—the effects on a protected
     class of DSNY’s promotional practices.
                                                     11
1                                   CONCLUSION

2   For the reasons set forth above, the judgment of the district court is AFFIRMED.




                                           12
