The Dugger Law Firm, PLLC: Former Mayor’s Office of Appointments Special Counsel and Deputy Director of Vetting Martha Perez-Pedemonti Files Discrimination and Retaliation Class Action Against NYC

Former Mayor’s Office of Appointments (“MOA”) Special Counsel and Deputy Director of Vetting Martha Perez-Pedemonti has filed an individual and class action complaint against the City of New York (“NYC”), former Director and Principal EEO Officer for MOA Joni Kletter (“Kletter”), NYC Law Department EEO Officer Sosimo Fabian (“Fabian”), and NYC Agency Counsel Michael Levario (“Levario”).

Filed pursuant to the Family and Medical Leave Act (“FMLA”), Section 1981, Section 1983, and the New York City Human Rights Law (“NYCHRL”), the twelve-count complaint includes individual claims for: (1) race, ancestry, color, and race and/or ancestry-plus gender discrimination, hostile work environment, and stereotyping discrimination; (2) retaliation; (3) interference with FMLA and NYCHRL rights; (4) NYCHRL aiding and abetting and attempted aiding and abetting liability; and (5) NYCHRL disparate impact liability.

The complaint’s allegations include that Defendants NYC and Kletter discriminated against Ms. Perez-Pedemonti because of her Hispanic and/or Hispanic female identity (and/or color), and/or retaliated against her because of her complaints of discrimination and/or retaliation at MOA, including by failing to promote her in favor of Defendant Levario, demoting her, stripping her of job duties, and/or attempting to force her to sign a confidentiality agreement, as well as by creating a discriminatory hostile work environment.  The complaint further alleges FMLA retaliation and interference claims against Defendants NYC and Kletter.

Beyond the allegations of discrimination and retaliation directed at Ms. Perez-Pedemonti, the complaint further alleges that Defendant Kletter: (1) agreed that “‘three Muslims’ were ‘too many’” for a Civic Engagement Commission and then had two Muslims removed from contention for the candidate pool; (2) responded inappropriately to a sexual harassment complaint against Defendant Levario that Ms. Perez-Pedemonti had reported to Defendant Kletter, as MOA’s EEO Officer, on behalf of a female subordinate; (3) mocked current Commissioner Everardo Jefferson for having a Spanish accent during a practice interview when he was a candidate for the City’s Landmarks Preservation Commission; (4) repeatedly discriminated against MOA’s Black female former Legal Director; and (5) told Ms. Perez-Pedemonti that she considered MOA’s former Legal Director’s taking of FMLA leave to have been “insubordination.”  Ms. Perez-Pedemonti additionally alleges that she was retaliated against after she complained about some of this discriminatory and/or retaliatory conduct, as well as following her complaint to human resources of a “culture of racial and ethnic discrimination at MOA.” 

In addition to individual claims, Ms. Perez-Pedemonti alleges class claims, for injunctive and declaratory relief, on behalf of all NYC employees who filed EEO complaints against a Commissioner, Head of Agency, and/or EEO Officer.  Specifically, the complaint alleges, a pattern or practice, in violation of the NYCHRL, of retaliation, interference, and/or aiding and abetting of NYCHRL violations, and in violation of  Section 1981 concerning a pattern or practice of retaliation, by the NYC Law Department and/or its EEO Officer Sosimo Fabian, against NYC employees who made EEO complaints against Commissioners, Heads of Agencies, and/or EEO Officers that were referred to the Law Department for resolution.  The complaint alleges these violations occurred through the Law Department and/or Fabian: (1) issuing findings that their EEO complaints were “unsubstantiated”; (2) conducting bad faith investigations of EEO complaints; (3) conducting pre-determined investigations of EEO complaints; (4) failing to accurately communicate the actual results of EEO complaint investigations; and/or (5) failing to properly, fully, and/or fairly investigate employee complaints of discrimination and retaliation.

The complaint additionally alleges a disparate impact on NYC employees who made EEO complaints against Commissioners, Heads of Agency, and/or EEO Officers, as a result of NYC’s applicable EEO policies, including: (1) referral of such EEO complaints to the Law Department for resolution; and/or (2) the Department of Citywide Administrative Services’ (“DCAS’s”) issuance of EEO guidelines and policies that did not provide clear standards for resolution of EEO claims and/or that did not accurately reflect the legal standards specific to the NYCHRL.  The complaint alleges that these, and other EEO policies, resulted in a disparate impact on the class through disproportionate rates of discipline, resignation, and/or termination.

The complaint further alleges that, in violation of Section 1983, the City has, on a class-wide basis, failed to adequately train and/or supervise Commissioners, Heads of Agency, EEO Officers, including regarding: (1) appropriately identifying potential discrimination and retaliation violations (including oral complaints); and (2) refraining from retaliating and/or instructing others to refrain from retaliating against NYC employees who made EEO complaints concerning Commissioners, Agency Heads, and/or EEO Officers.  It further alleges that NYC had a policy or practice of retaliation against employees who made sex discrimination, race discrimination, or related retaliation EEO complaints against Commissioners, Agency Heads, and/or EEO Officers.

Ms. Perez-Pedemonti’s complaint, in addition to seeking individual relief, seeks a class-wide injunction requiring the reevaluation of EEO complaints against Commissioners, Heads of Agency, and EEO Officers, that the Law Department previously found to be “unsubstantiated,” during the relevant class period, as well as prospective evaluation of such future EEO complaints, by an independent body such as an independent office, ombudsman, or the NYC Office of the Public Advocate.

Perez-Pedemonti v. The City of New York et al., No. 1:22-cv-06180 (NRB) (JW), is proceeding in the United States District Court for the Southern District of New York before the Honorable Naomi Reice Buchwald.

Media Contact: Cyrus E. Dugger, The Dugger Law Firm, PLLC, (646) 560-3208, cd@theduggerlawfirm.com

The Dugger Law Firm, PLLC Files Disability Discrimination Case on Behalf of Former DVS Asst. Comm. Jamal Othman Against NYC Mayoral Candidate and Former DVS Commissioner Ret. General Loree Sutton

On November 7, 2019, U.S. Marine Corps veteran Jamal Othman filed a disability discrimination, retaliation, and interference complaint against the City of New York’s Department of Veterans’ Services (“DVS”), New York City mayoral candidate and former DVS Commissioner Ret. Gen. Loree Sutton, and current DVS Assistant Commissioner Jason Parker. 

Most recently the Assistant Commissioner for Engagement & Community Services for DVS, Mr. Othman worked as an Assistant Commissioner for DVS from 2016-2019.  He previously served as the Chief of Staff for Mayor Bloomberg for the New York City Mayor’s Office of Veterans’ Affairs (2012-2014) and the Deputy Director of the New York State Division of Veterans’ Affairs (2014-2016). 

Mr. Othman’s complaint alleges that, despite DVS’s stated mission of supporting NYC veterans, including those with mental health disabilities, former Commissioner Sutton engaged in a pattern or practice of discrimination against DVS’s military veteran employees with mental health disabilities, including targeting them for termination of employment from DVS.

The complaint alleges that shortly after Mr. Othman disclosed his service-connected mental health disability, former Commissioner Sutton demoted him, pressured him to resign, terminated his employment (by way of an armed escort out of DVS’s offices), and banned him from entering any property under the jurisdiction of DVS.

The complaint further alleges that former Commissioner Sutton created a hostile work environment for veterans with mental health disabilities.

The complaint alleges that her conduct included: (1) telling Mr. Othman that she wanted to find a reason to fire a veteran with a mental health disability in part because of their mental health disability (in addition to their political views); (2) expressing her pleasure, and becoming visibly giddy, after hearing of the departure of a veteran with a mental health disability from DVS; and (3) repeatedly instructing Mr. Othman “no more troubled veterans.”

The complaint additionally alleges that five days after former Commissioner Sutton terminated his employment because of his mental health disability and/or protected activity, she testified about veteran mental health to the New York City Council’s committees on Veterans and Mental Health, Disabilities, and Addiction, Oversight Hearing on “Veteran Suicide and Mental Health.”

Filed in the Southern District of New York pursuant to the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and the New York City Human Rights Law (“NYCHRL”), the fourteen-count complaint’s claims include: (1) disability discrimination; (2) retaliation; (3) harassment and hostile work environment; (4) failure to accommodate; (5) interference; and (6) aiding and abetting liability.  The complaint also utilizes the NYCHRL’s 2017 amendments enacting anti-discrimination protections for uniformed service members (i.e. veterans), which Mr. Othman assisted in passing while at DVS.

Mr. Othman’s complaint seeks back pay, front pay, reinstatement, compensatory damages, declaratory relief, and injunctive relief, as well as punitive damages and FMLA liquidated damages from former Commissioner Sutton and Assistant Commissioner Parker in their individual capacities.

On November 6, 2019, The New York Times reported that former Commissioner Sutton had declared her candidacy for Mayor of New York City.

The case is Othman v. The City of New York et al., No. 19 Civ. 10351, in the United States District Court for the Southern District of New York.

Media Contact: Cyrus E. Dugger, The Dugger Law Firm, PLLC (646) 560-3208 cd@theduggerlawfirm.com

Press release is available here.

Pregnant New York Workers Have Greater Potential Accommodation Rights Than Under Federal Law

The recent NY Times article titled "Miscarrying at Work: The Physical Toll of Pregnancy Discrimination" is an important overview of the challenges faced by many pregnant American workers under current federal law.

“It was the worst thing I have ever experienced in my life,” Ms. Hayes said.

Three other women in the warehouse also had miscarriages in 2014, when it was owned by a contractor called New Breed Logistics. Later that year, a larger company, XPO Logistics, bought New Breed and the warehouse. The problems continued. Another woman miscarried there this summer. Then, in August, Ceeadria Walker did, too.

The women had all asked for light duty. Three said they brought in doctors’ notes recommending less taxing workloads and shorter shifts. They said supervisors disregarded the letters. . . . But refusing to accommodate pregnant women is often completely legal. Under federal law, companies don’t necessarily have to adjust pregnant women’s jobs, even when lighter work is available and their doctors send letters urging a reprieve. . . . It says that a company has to accommodate pregnant workers’ requests only if it is already doing so for other employees who are “similar in their ability or inability to work.” (link)

Fortunately, pregnant women working in New York State and New York City (and several other states) have broader protections than under federal law.

“Outside Washington, there have been fewer roadblocks. At least 23 states have passed laws that are stronger than current federal protections.” (link)

For employers with at least four employees, New York and New York City law explicitly requires employers to reasonably accommodate pregnant workers. This right means that, unless the accommodation would imposes what the laws describes as “an undue hardship” on the employer, the employer is legally required to provide an accommodation to a pregnant worker (physically working in New York). Under some circumstances, pregnant workers working for employers in NYC are covered by this law even if the company classifies its workers as independent contractors.

You can find guidance on the New York State pregnancy discrimination law here and the New York City pregnancy discrimination law here.

Because the potential right to a pregnancy accommodation can be a complicated legal question involving a back-and-fourth “interactive process” with the employer, pregnant workers are well-advised to seek legal guidance as soon as possible after becoming pregnant.

Washington Post: "Even Janitors Have Noncompetes Now. Nobody Is Safe."

Even janitors have noncompetes agreements now . . .

“One of the central contradictions of capitalism is that what makes it work — competition — is also what capitalists want to get rid of the most.

That’s true not only of competition between companies, but also between them and their workers. After all, the more of a threat its rivals are, and the more options its employees have, the less profitable a business will tend to be. Which, as the Financial Times reports, probably goes a long way toward explaining why a $3.4 billion behemoth like Cushman & Wakefield would bother to sue one of its former janitors, accusing her of breaking her noncompete agreement by taking a job in the same building she had been cleaning for the global real estate company but doing it for a different firm.” (Continue Reading)

New York Attorney General Releases: Non-Compete Agreements In New York State: Frequently Asked Questions

New York employers have been increasingly using non-compete agreements in employment contracts. In addition to bringing litigation against employers to address the use and abuse of overly broad non-compete agreements, the New York Attorney General recently released: Non-Compete Agreements In New York State: Frequently Asked Questions.

Beyond providing a helpful overview of the legal limits on non-compete agreements under New York law, the FAQ advises New York employees to take several steps and ask several questions before signing any non-compete agreement:

Before signing a non-compete 

1. Before accepting a new job, ask the employer if you will have to sign a non-compete. 

2. Before signing, make sure you read and understand any document that an employer asks you to sign. 

3. Remember that a non-compete is a contract and that you can try to negotiate its terms. 

Consider these questions before signing: 

• What businesses are considered competitors? A non-compete may not be enforceable if the definition of a competitor is too broad or prevents you from working in an entire sector or industry. 

• How long does the non-compete period last? Non-competes should be limited in time. 

• What geographic area does it cover? Is the geographic scope so large that you might have to move to get a job with another employer in the industry? 

• Are you getting anything in exchange for signing the non-compete? For example, some employers provide a bonus or specialized training, guarantee employment for a certain time, or provide payment for some or all of the non-compete period in exchange for signing a non-compete. 

• Can you have a lawyer review the language and advise you on its potential consequences or negotiate with the employer on your behalf? 

Whether you’re considering signing a non-compete or already signed one, New York law may limit the enforceability of your non-compete agreement. Obtaining legal advice regarding your specific non-compete can be essential to protecting your rights following your departure from an employer.

CNN Runway Injustice Investigative Series Video Clip

This is just great reporting (link):

Installment #2: CNN Investigative Series Runway Injustice: The outrageous cost of being a model

Available here:

"Modeling is a time-consuming, demanding and cutthroat profession. But most of all, it can be prohibitively expensive.

Unlike most U.S. workers, models regularly see huge chunks of their earnings -- whether it's a third, more than half, or even entire paychecks -- disappear right before their eyes.

One male model, for example, showed CNNMoney a statement where a $500 catalog shoot turned into a $15 check. Meanwhile a young female model saw almost six years of earnings shrink from $74,000 to less than $30,000.

Models typically aren't treated as employees, so they usually aren'tguaranteed to receive minimum wage, overtime, lunch breaks, prompt paychecks or many other protections that are common in the workplace.

Instead, they are often considered independent contractors. And this means that even after paying their agencies fat commissions of 20% or more, models often have to foot the bill for business expenses. These include everything from expensive plane tickets and group housing to the many promotional materials -- like websites, headshots and portfolios -- required to land jobs with clients." (link)

The Consumer Financial Protection Bureau Just Made Your Life Better

So many times better:

"The nation’s consumer watchdog is unveiling a proposed rule on Thursday that would restore customers’ rights to bring class-action lawsuits against financial firms, giving Americans major new protections and delivering a serious blow to Wall Street that could cost the industry billions of dollars." (link)

In the words of Richard Cordray, director of the Consumer Financial Protection Bureau:

“Many banks and financial companies avoid accountability by putting arbitration clauses in their contracts that block groups of their customers from suing them.” (link)

As noted in a previous post covering The Nation's article How Consumers Are Getting Screwed by Court-Enforced Arbitration -- yes -- unfortunately -- this applies to you.

Court Grants Plaintiff’s Motion to Compel in Race Discrimination Case Against 643 Broadway Holdings LLC d/b/a Bleecker Kitchen & Co. and Joshua Berkowitz

On December 10, 2011, Michael S. Douglas, Jr. filed a race discrimination complaint in Manhattan Supreme Court against 643 Broadway Holdings LLC(d/b/a Bleecker Kitchen & Co.) and co-owner Joshua Berkowitz.   

The complaint alleges that Berkowitz racially harassed former Bleecker Kitchen & Co. restaurant manager Douglas during his employment with Bleecker.  The complaint further alleges that Berkowitz was not aware that Douglas, who is Filipino and African-American, was black, when Berkowitz, using coded words, counseled Mr. Douglas against hiring black servers.   

On March 2, 2016, the Honorable Eileen A. Rakower ordered Defendants to produce all of the hard copy and electronic documents sought in Plaintiff’s motion to compel, with the exception of documents related to Gold Bar or Defendants’ assets.

The Court further ordered Defendants to provide an affidavit from someone with knowledge of the search conducted concerning requests for which Defendants claim documents do not exist, or are not in Defendants', possession, custody, or control.

The Court’s Order is available here.

The case is Douglas v. 643 Broadway Holdings LLC d/b/a Bleecker Kitchen & Co. et al., Index No. 162179

Mr. Douglas is represented by Cyrus E. Dugger of the Dugger Law Firm, PLLC and James Halter and Asa Smith of Liddle & Robinson L.L.P.

Court Certifies California Uber Driver Independent Contractor Misclassification Class Action

In a sixty-eight page opinion.