Alli v. City of New York

Recitation as per CPLR §§2219(a) and/or 212(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 DECISION/ORDER Upon the foregoing cited papers and after oral argument on January 31, 2024, pursuant to Article 9 of the CPLR, Plaintiff’s 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.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.”² 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.”³ 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.⁴ 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.”⁵ “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.”⁶ 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.”⁷ 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).⁸ 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.”⁹ 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.”¹⁰ 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.’”¹¹ 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…”¹² The amended complaint alleges that “[o]n November 18, 2021, in response to Mayor’s Executive Order 67¹³ and New York City Resolution 1584-2021,¹⁴ the NYPD implemented Administrative Guide Procedure 329-27 (hereinafter…’A.G. 329-27′) which is entitled ‘Discretionary Promotion Process for Uniformed Executives.’”¹⁵ 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.”¹⁶ 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.”¹⁷ 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.¹⁸ 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.¹⁹ 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.”²⁰ 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.”²¹ 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.”²² 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.²³ 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 2015.²⁴ Mohan attests that he “excelled in [his] role and regularly inquired about a promotion to Deputy Inspector.”²⁵ 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.”²⁶ 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].”²⁷ 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.”²⁸ 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”²⁹ 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.³⁰ Chen attests that: “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.”³¹ 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.³² 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].”³³ 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…”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”³⁵ 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.”³⁶ 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.”³⁷ Plaintiff Alli asserts that 29 Id. at