The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 37 were read on this motion to/for DISMISSAL. DECISION + ORDER ON MOTION Upon the foregoing documents, it is Plaintiff, Mark Cannizzaro, as President of the Council of the Supervisors and Administrators (“CSA”), commenced this action against defendants, The City of New York (“the City”) and the New York City Department of Education s/h/a the Board of Education of the City School District of the City of New York (“DOE”) (collectively “City defendants”), and nominal defendant, Day Care Council of New York (“DCCNY”), on behalf of its affected members: the Directors and Assistant Directors who run the community based organizations (“CBOs”) within New York City’s early childhood education programs. Plaintiff is seeking injunctive relief and damages arising out of the City defendants’ alleged violations of the New York State Human Rights Law (“State HRL” or “NYSHRL”), Executive Law §§290 et. seq., and the New York City Human Rights Law (“City HRL” or “NYCHRL”), Administrative Code §§8-101 et. seq.. The City defendants, in lieu of an answer, now move for an order, pursuant to CPLR §3211(a)(7), dismissing the complaint in its entirety for the failure to state a cause of action. Factual Allegations: Parties: Plaintiff, the bargaining agent for the education administrators employed by the DOE and CBOs, brings this action on behalf of the CSA-represented certified education directors of the New York City community based organizations (“CBO Directors”) within the City’s early childhood education Pre-K and 3-K programs. The CBO Directors are the 171 certified education directors in charge of the Pre-K and 3-K programs for the CBOs. The “District Directors” are the group that serve as the directors of the early education programs in the New York City public school facilities. The CBO Directors allegedly consists of 92% women of color while only 31% of the District Directors are African American or Latino. The City and DOE are the entities that established and now operate, fund, and/or oversee the implementation of the New York City Universal Pre-K and 3-K early childhood education programs. Plaintiff claims the DOE is charged with several responsibilities, including administration and managing the educational affairs of the City School District and serving as the employer of all educators hired to teach in the City School District. The City defendants allegedly play a role in calculating, setting, and funding the salaries of both the CBO Directors and District Directors. The DOE allegedly exercises control over the working conditions and in setting the responsibilities, duties, qualifications, and requirements of the CBO and District Directors. Nominal defendant, DCCNY, is a membership organization for non-profit agencies operating child-care centers and providing childcare services in New York City. DCCNY is the entity which, in addition to the City defendants, collectively bargains with CSA regarding and on behalf of the CBO Directors. DCCNY’s role includes recommending terms and conditions of employment, including salary proposals, to the City’s Office of Labor Relations (“OLR”). Programs: Plaintiff alleges that, historically, the Office of the Mayor (“Mayor”) has heralded its commitment to expanding early childhood education and investing in New York City’s youngest learners. Universal Pre-K, a full-day instruction for 4-year-olds Citywide, was a central part of Mayor de Blasio’s 2013 campaign- in which it was stressed that early education plays a vital role in addressing income inequality and gaps in education outcomes. It is alleged that the program now has more than 70,000 four-year-olds enrolled. In the 2017-2018 school year, the Mayor announced that the City and DOE would undertake a pilot 3-K program with 1,500 students. Following the 3-K program’s success, the Mayor and DOE Chancellor announced in March 2021 that the City, partnering with City Council, would be expanding the full-day 3-K programs to an additional 16,500 three-year-olds. Plaintiff contends that the total number of participating children for the 2021-2022 academic year would be around 40,000. Plaintiff asserts that this enlargement of the 3-K program, and the expansion and success of the Universal Pre-K program, has only been possible through utilizing New York City Early Education Centers (“NYCEECs”) and CBOs. It is alleged that in recent years, there have been as many as 81,611 children under the age of five enrolled in early education services at DOE and CBO centers, with 62% (50,906) being taught in CBO centers. DOE supposedly relies upon the local CBOs and NYCEECs to expand the number of students it can serve and the majority of these additional 3-K seats will be located in CBOs rather than DOE buildings. However, plaintiff contends that despite the program and the number of students being expanded, CBOs struggle to recruit and retain staff because their salaries do not match the DOE salaries. As a result of this, CBOs consistently lose early childhood education staff to higher paying positions. There are three types of Pre-K and 3-K programs: District Pre-Ks in 600 public elementary schools; approximately 70 Pre-K Centers in new or existing school buildings; and 1,150 NYCEECS or CBOs embedded within NYC communities. Pre-K and 3-K programs are a comprehensive early education system that is comprised of these District Schools, Pre-K Centers, NYCEECs, and CBOs. The CBOs are allegedly meant to fit seamlessly and coexist within this one large network of early childhood education system. Therefore, plaintiff contends that the DOE holds CBOs to the same expectations and standards as the District Schools and Pre- K Centers and CBOs provide the same programming and services. Plaintiff alleges that whether providing services in a DOE school building or in an Early Education Center, early childhood education directors are performing the same vital function, are subject to the same stringent regulations, and are paid with the same public dollars. Parity Efforts: In May 2018, City Council passed Resolution 358, a “Resolution calling upon the City of New York to eliminate the disparity in compensation paid to teachers, staff and directors at community-based EarlyLearn NYC centers, as compared to the compensation paid to Department of Education instructors for similar employment”.1 Plaintiff alleges that in conjunction with announcing the expansion of the 3-K program in 2019, the City emphasized this enlargement would align with the City’s historic commitment to achieve pay parity between early childhood educators in the community based organizations and those in district schools. However, plaintiff alleges that the City defendants have persistently excluded the CBO Directors from the implementation of this pay parity initiative and agreements. In November 2019, the City approved a salary parity agreement between DCCNY and the union that represents the CBO teachers, DC 37, to bring the CBO teachers in line with their DOE teacher counterparts. Plaintiff asserts that over 70% of CBO Pre-K teachers are people of color, while just 40% of the DOE Pre-K teachers are people of color. In that pay parity agreement, the state certified teachers at community-based organizations, who made $20,000 less per year than DOE employees with the same training, were provided with a “path to parity” in the form of a three-year contract that increased salaries by $20,000 for CBO teachers with a Master’s degree and $17,000 for teachers with a Bachelor’s degree. This parity effort was allegedly publicly praised by the Mayor, City Council, and numerous public officials. However, despite the support for the CBO teachers, and CSA’s continual efforts for parity, the City defendants have allegedly blocked these efforts to achieve the same result for the CBO Directors. Plaintiff contends that the City defendants pay the CBO Directors, who are predominately women of color, significantly less than their mostly white peers who work in the DOE Pre-K programs. Therefore, despite the CBO and District Directors performing substantially the same job, under the same early education programs, the CBO Directors are paid at a rate that is substantially lower. Bargaining Process/Agreement: The collective bargaining process for the CBO Directors allegedly differs from typical collective bargaining negotiations between the City and public sector unions. First, CSA, on behalf of CBO Directors, negotiates with DCCNY. DCCNY is allegedly financially reliant on the City to fund the labor agreement, so CSA and DCCNY then jointly present their mutually656773/ agreed upon proposed terms to the OLR and the City’s Office of Management and Budget (“OMB”). Tripartite negotiations between the CSA, DCCNY, and OLR and/or OMB then ensue. As a condition precedent, OLR and/or OMB must first approve the proposed financial terms before CSA and DCCNY may ultimately enter into a collective bargaining agreement. The CBO Directors’ previous collective bargaining agreement with DCCNY expired in September 2020. On May 18, 2021, DCCNY submitted its salary proposal for the CBO Directors’ successor agreement for the 2021-2025 time period. In this proposal, DCCNY allegedly recognized the disparity between the salary levels of the CBO Directors and the District Directors, providing charts to demonstrate the extent of this disparity. The proposal acknowledged that CBO Directors were not a part of the 2019 salary parity agreement for the CBO teachers and concluded that now was the time to act and rectify the issue. Similar to the CBO teacher parity initiative, this proposal would have allegedly brought the CBO Directors in line with the District Directors. The DCCNY proposal was allegedly rejected by the OLR, acting on behalf of the DOE. OLR instead proposed a 6% increase above the City-authorized Universal Pre-K teacher rate (“6% Rule”), which was the contractual minimum salary required by the now-expired collective bargaining agreement. The previous collective bargaining agreement set the minimum salaries for CBO Directors at the higher of the contractual rate imposed by DOE or six percent (6%) above the City-authorized [Universal Pre-K] teacher’s rate. The 6% Rule allegedly imposes an artificial cap tied to the wages of the individuals that the CBO Directors supervise and that no similar cap is imposed on the District Directors. Instead of the 6% Rule, the salaries of the District Directors are tied to and/or measured in comparison to the salaries of DOE public school principals. The DOE, through the City, calculates the salaries for the CBO Directors and District Directors using different methods and/or scales which allegedly results in stark pay differences for the two groups (“District Differential”). CSA has allegedly raised the issue of gender and racial inequality to the City. Plaintiff asserts that on five separate occasions, CSA testified before City Council to advocate and stress the importance of CBO Director pay parity. On August 30, 2021, CSA sent a letter to the Commissioner of OLR urging the City to reconsider its rejection of DCCNY’s salary proposal and allegedly explaining that the City’s position contradicts its professed desire to achieve racial and gender parity among its municipal workforce. Plaintiff alleges that this letter and the repeated requests for pay parity during budget negotiations have gone unanswered and/or unaddressed. Subsequently, plaintiff commenced this action by service of a complaint on December 01, 2021, alleging claims of unlawful discrimination on the basis of race, ethnicity, and gender in violation of New York City Administrative Code §8-107 (17) and New York Executive Law §296. CPLR §3211: On a motion to dismiss pursuant to CPLR §3211, the pleading is to be afforded a liberal construction, the facts alleged in the complaint accepted as true, accord plaintiffs the benefit of every favorable inference, and determine whether the facts alleged fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 87 [1994]). When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). Notice of Claim: The City defendants contend the claims against the DOE must be dismissed as the plaintiff failed to comply with the statutory preconditions required under New York Education Law §3813. Education Law §3813 provides that no action, for any cause, may be maintained against any board of education unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which said action is founded was presented within three months after the accrual of such claim (Education Law §3813[1]). “Education Law §3813′s notice of claim requirement has been recognized to apply to any claims based on alleged violations of the NYSHRL or the NYCHRL” (Applewhite v. NYC Dept. of Educ., 2020 NY Slip Op 32990[U], *5 [NY Sup Ct, NY County 2020]). The City defendants assert that as plaintiff has failed to plead that a notice of claim was ever served on the DOE prior to the commencement of the action, the claims must be dismissed as against DOE (see Smith v. New York City Dept. of Educ., 808 F Supp 2d 569, 578 [SDNY 2011]). Plaintiff contends that the Education Law §3813 notice of claim requirement is not applicable as this action seeks to vindicate a public interest. In the area of civil rights, the Court of Appeals has recognized an exception to 3813′s notice of claim requirement (Union Free School Dist. No. 6 of Towns of Islip and Smithtown v. New York State Human Rights Appeal Bd., 35 NY2d 371, 380 [1974]). In determining the applicability of this notice of claim requirement, the Court of Appeals “has distinguished between proceedings ‘which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 3813 are applicable as to the former but not as to the latter’” (Matter of Cayuga-Onondaga Ctys. Bd. of Co-op. Educ. Services v. Sweeney, 89 NY2d 395, 400 [1996], quoting Union Free School Dist. No. 6 of Towns of Islip and Smithtown v. New York State Human Rights Appeal Bd., 35 NY2d 371, 375 [1974]). “[A]ctions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group are deserving of special treatment. The interests in their resolution on the merits override the State’s interest in receiving timely notice before the commencement of an action” (Mills v. Monroe County, 59 NY2d 307, 311 [1983]). A plaintiff is not exempt from the notice of claim requirement when “the disposition of plaintiff’s claim was not intended to nor could it directly affect or vindicate the rights of others” (Id. at 712). Therefore, the characterization of the plaintiff’s action should be one that is seeking to vindicate a public, as opposed to a private, right (see Picciano v. Nassau County Civ. Serv. Com’n., 290 AD2d 164, 169 [2d Dept 2001]). Plaintiff has adequately alleged that this action is to vindicate a public interest and that a notice of claim is not required. Plaintiff commenced this action on behalf of and representing the 171 CBO Directors that are affected by the policy in question. Plaintiff alleges this action is to vindicate the rights of the CSA-represented education professionals: the group in charge of implementing the City’s ambitious Pre-K and 3-K early childhood education programs in CBOs and allegedly play a key role in the enlargement and the success and expansion of the programs (complaint
1, 27). The CBO Directors perform an important service for the City by providing high quality and affordable childcare for the young children enrolled in the early childhood education system. Additionally, plaintiff is challenging the City defendants’ practice or policy which allegedly disparately impacts the CBO Directors and results in less pay for equal work in violation of the City and State Human Rights Laws. “[T]he existence of discrimination — a profound evil that New York City, as a matter of fundamental public policy, seeks to eliminate — demands that the courts’ treatment of such claims maximize the ability to ferret out such discrimination, not create room for discriminators to avoid having to answer for their actions before a jury of their peers” (Bennett v. Health Mgt. Sys., Inc., 92 AD3d 29, 38 [1st Dept 2011][internal citations omitted]). “Clearly, the elimination of discrimination in the provision of basic opportunities is the predominant purpose of this legislation; all the more invidious is such discrimination when it is practiced by the State” (Koerner v. State, 62 NY2d 442, 448 [1984]). Notably, the allegations in the complaint refer to the City defendants conduct as it relates to or affects the collective group of CBO Directors and is not based on conduct solely directed towards the plaintiff individually. Finally, plaintiff is seeking redress for its members’ injuries both in the form of injunctive relief and by awarding of back pay and benefits. Plaintiff is seeking this relief on behalf of the entire group of CBO Directors that were and/or are impacted by the City defendants conduct and not solely for his own damages. Therefore, disposition in this action would directly affect and vindicate the rights of others and cannot be characterized as plaintiff seeking to enforce his private rights (Mills v. Monroe County, 59 NY2d 307, 312 [1983]). Considering the role of the CBO Directors and the overall purpose of the statutes, the plaintiff’s claims may be said to fall within the vindication of a public interest category and therefore a notice of claim is not required (see generally Matter of Mary’s Bus Serv. Inc. v. Rondout Val. Cent. School Dist., 238 AD2d 829, 831 [3d Dept 1997]; Matter of Cayuga- Onondaga Ctys. Bd. of Co-op. Educ. Services v. Sweeney, 89 NY2d 395, 400 [1996]; Funderburke v. Uniondale Union Free School Dist. No. 15, 172 Misc 2d 963, 965 [Sup Ct 1997], affd in part, dismissed in part, 251 AD2d 622 [2d Dept 1998]).2 Statute of Limitations: City defendants assert that as certain of plaintiff’s claims fall outside the applicable limitations period, those claims should be dismissed as time barred. In an action against the City for claims arising under the City and State Human Rights Law, the statute of limitations is three years (Santiago-Mendez v. City of New York, 136 AD3d 428 [1st Dept 2016]). The City defendants allege that as the complaint was filed on December 01, 2021, any allegations of conduct that took place prior to December 01, 2019, are untimely. Plaintiff does not contest the three-year statute of limitations but instead asserts that the correct date for the limitations time-period is December 01, 2018. Measuring three years back from December 01, 2021, any allegations that occurred prior to December 01, 2018, are time barred as against the City. Further, when asserting City or State HRL discrimination claims against the DOE, the one-year limitations period prescribed in Education Law §3813 (2-b) governs (Amorosi v. S. Colonie Ind. Cent. School Dist., 9 NY3d 367, 373 [2007]). Accordingly, any allegations for claims against the DOE that arose before December 01, 2020, would be time-barred. Plaintiff asserts that the claims are timely as they are subject to the Lilly Ledbetter Fair Pay Act of 2009 (“Fair Pay Act”) and therefore, while backpay damages for which the City defendants may be liable may be limited, dismissal is unwarranted. The Fair Pay Act amended “antidiscrimination statutes by providing that an unlawful employment practice with respect to compensation occurs each time an individual is affected by a discriminatory compensation decision, including each time wages or other workplace compensation is paid” (Zimmelman v. Teachers’ Retirement Sys. of City of New York, 2010 WL 1172769, at *10 [SDNY, Mar. 8, 2010, 08 CIV. 6958 [DAB] [DF], report and recommendation adopted, 2010 WL 2034436 [SDNY, May 20, 2010, 08 CIV. 6958 [DAB]). Thus, even if the initial discriminatory compensation decision did not occur within the limitations period, claims to recover for each subsequent paycheck may be timely (Miller v. Kempthorne, 357 Fed Appx 384, 386 [2d Cir 2009]; Vuong v. New York Life Ins. Co., 106 Fair Empl Prac Cas [BNA] 243, affd sub nom. Pheng Vuong v. New York Life Ins. Co., 360 Fed Appx 218 [2d Cir 2010]). As the Fair Pay Act has been found to apply to discrimination claims under the State and City Human Rights Law, the statute may be applicable in determining the limitations period of actionable conduct and period by which the plaintiff may be entitled to recover backpay (see Williams v. Deutsche Bank Group, 2013 NY Slip Op 34190[U], *16 [NY Sup Ct, NY County 2013]). Dismissal on the basis that the claims are time-barred is, at least at this juncture, inappropriate or premature. Joint Employer: The City defendants contend that the plaintiff’s discrimination claims must be dismissed as the City defendants are not the employers of the CBO Directors. Under both the City and State HRL, it shall be an unlawful discriminatory practice for an employer, because of the actual or perceived race, national origin, or gender of any person, to discriminate against such person in compensation or in terms, conditions, or privileges of employment (see Admin Code §8-107.1 [a] [3]; Executive Law §296.1 [a] [emphasis added]). Therefore, to bring a cause of action for employment discrimination under the City and State HRL statutes, the plaintiff must allege the existence of an employment relationship (Adams-Flores v. City of New York, 2020 WL 996421, at *4 [SDNY, Mar. 2, 2020, 18-CV-12150 [JMF]; White v. Pacifica Found., 973 F Supp 2d 363, 376 [SDNY 2013]). The City defendants allege that plaintiff has failed to include allegations that could establish a traditional, nor joint, employment relationship as required by the City and State HRL. City defendants assert that as there is no employer liability, the plaintiff’s City and State HRL claims of discrimination based on gender, ethnicity, and race should be dismissed. However, a direct employee-employer relationship is not required as the City defendants may be liable as joint employers of the CBO Directors. A purported non-employer may be subject to liability under the State and City HRLs under the joint employer doctrine (Brankov v. Hazzard, 142 AD3d 445, 446 [1st Dept 2016]). “A conclusion that employers are ‘joint’ assumes that they are separate legal entities, but that they…handle certain aspects of their employer-employee relationship jointly” (Arculeo v. On-Site Sales & Mktg., LLC, 425 F3d 193, 198 [2d Cir 2005], quoting Clinton’s Ditch Co-op Co., Inc. v. N.L.R.B., 778 F2d 132, 137 [2d Cir 1985]). Under the doctrine, an employee may be formally employed by one entity but assigned to work in circumstances that justify the conclusion that the employee is at the same time constructively employed by another entity (Id.). When determining if an ostensible non-employer may be a joint employer, courts have applied the immediate control test (Brankov v. Hazzard, 142 AD3d 445 [1st Dept 2016]). Under the immediate control test, a joint employer relationship may be found to exist where there is sufficient evidence that the defendant had immediate control over the employee and particularly control over or authority to set the terms and conditions of the employee’s work (Id., relying on Haight v. NYU Langone Med. Ctr., Inc., 2014 WL 2933190 at *11, [SDNY, June 27, 2014, No. 13 Civ. 04993[LGS]). Relevant factors include commonality of hiring, firing, discipline, pay, insurance, records, and supervision (Id.). “Of these factors, ‘the extent of the employer’s right to control the means and manner of the worker’s performance is the most important factor.’ If such control is established, other factors ‘are then of marginal importance’” (Brankov v. Hazzard, 142 AD3d 445, 446 [1st Dept 2016], quoting Haight v. NYU Langone Med. Ctr., Inc., 2014 WL 2933190 at *11, [SDNY, June 27, 2014, No. 13 Civ. 04993 [LGS]). As a functional matter, courts evaluate whether a joint employer relationship exists by considering the control exercised in setting the terms and conditions of the employee’s work (Haight v. NYU Langone Med. Ctr., Inc., 2014 WL 2933190 at *11, [SDNY, June 27, 2014, No. 13 Civ. 04993[LGS]). In the complaint, plaintiff alleges “[b]y virtue of the significant influence and control it exerts over their working conditions, compensation and other terms and conditions of employment, DOE employs the CBO Directors” (complaint 16). City defendants contend that the complaint fails to allege any control, manifest or marginal, over the CBO Directors for the relevant factors that could demonstrate a joint employer relationship. The court disagrees. In their complaint, the plaintiffs assert that under the City defendants’ universal childcare programs, CBOs are held to the same expectations as District Schools and Pre-K Centers and are fully integrated into the larger early childhood education network maintained by the City and DOE (complaint
