Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO v. City of New York

Background

Renae Mascol, Luis Rodriguez, and Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO brought a proposed class action against the City of New York, the New York City Fire Department, the Department of Citywide Administrative Services, and unidentified defendants. The complaint alleged that the promotional process for Emergency Medical Services officers seeking leadership positions discriminated based on race, sex, and gender, and also asserted claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, the New York City Human Rights Law, and 42 U.S.C. §§ 1981 and 1983.

The leadership positions were Captain, Deputy Chief, and Division Chief. The process included eligibility requirements such as experience, certification, discipline history, attendance, and performance evaluations. Eligible applicants were interviewed by three-person panels, scored, ranked, and then considered for promotion by the FDNY Commissioner. The process changed in some respects around 2020, when additional criteria were considered.

Proposed Classes and Evidence

The plaintiffs sought certification of three proposed classes under Federal Rule of Civil Procedure 23. The proposed classes generally covered EMS officers in the SEMSS title who were non-white or female, had received a reasonable accommodation, or had taken disability-related or other leave. One proposed class was estimated at 2,178 people, and two others were each estimated at 1,007 people.

The plaintiffs submitted an expert report from Shane Thompson. His analyses found racial and, in some comparisons, gender differences in the people holding leadership positions. He also analyzed the time taken by 39 officers to advance from EMT to Captain. The defendants submitted an expert report from Christopher Erath, who criticized Thompson’s methods because they did not focus on people who were eligible for and applied for particular promotions. Erath’s analyses of eligible candidates and actual Captain applicants did not support the claim that white men benefited from the promotion process.

The plaintiffs also submitted declarations describing alleged discrimination. The declarants identified different alleged problems, including performance-evaluation grades, discipline records, interview decisions, leave, disability accommodations, and eligibility rules.

Legal Standard

Rule 23(a)(2) requires a proposed class to have questions of law or fact common to the class. In an employment-discrimination class action, commonality requires evidence that can provide a common answer to why members of the proposed class were disfavored. The court explained that a generalized reference to an overall promotion process is not enough for a disparate-impact claim. Plaintiffs must identify specific employment practices that caused the alleged disparities.

For disparate-treatment or pattern-and-practice claims, plaintiffs must provide significant proof of a systemwide pattern of discrimination, meaning discrimination that was regular rather than unusual. Statistics may help establish such a pattern, but they must make plausible nondiscriminatory explanations very unlikely.

Court’s Analysis

The court held that the plaintiffs did not identify a specific employment practice that could be examined on a classwide basis. The overall promotion process contained multiple distinct steps, including standardized eligibility rules, performance evaluations, discipline requirements, interviews, and final approval. Because applicants could allegedly be affected at different steps and by different decisionmakers, the court found that the proposed class members’ experiences did not present a common question with a single answer.

The court found the anecdotal evidence individualized. Boyd alleged discrimination through a performance evaluation; Mascol described interview and discipline-related issues; Rodriguez described leave-related treatment; and other evidence concerned disability accommodations or leave. The court concluded that these accounts did not show that discrimination operated against the proposed classes in the same general way.

The court also found the statistical evidence insufficient. Thompson’s principal analysis compared the demographic makeup of officers in leadership and non-leadership positions, rather than comparing applicants eligible for particular promotions with those actually promoted. The court stated that this analysis did not show which part of the promotion process caused the disparities and did not rule out explanations such as differences in historical hiring, eligibility, applications, discipline, or other individual circumstances. The court also found that the evidence did not provide substantial support for a gender-based pattern or practice and did not adequately establish a race-based pattern or practice.

For the proposed Non-Full Duty Status Class, the court rejected the plaintiffs’ assertion that the defendants categorically prevented such officers from being considered for promotion. Testimony described circumstances in which officers on leave or with limitations could still be considered, although the evidence also indicated that some employees could be marked unratable after extended absences. The court found that the plaintiffs’ limited anecdotal evidence did not establish a systemwide pattern.

Disposition

The court held that the plaintiffs had not met Rule 23(a)’s commonality requirement and had not offered significant proof of a pattern or practice of unlawful discrimination. The court therefore denied the motion for class certification and directed the Clerk of Court to close Docket No. 300. The opinion did not decide the ultimate merits of the individual discrimination claims.