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dismissing retaliation claim brought by city police detectives under Labor Law Section 740
Summary of this case from Klaes v. Jamestown Bd. of Pub. Utils.Opinion
02 Civ. 8030 (HB)
March 31, 2004
OPINION ORDER
Plaintiffs move for reconsideration of the Court's January 26, 2004 Opinion and Order, which dismissed nearly all of plaintiffs' claims. Plaintiffs now seek to resurrect some of their claims under Title VII of the Civil Rights Act, codified at 42 U.S.C. § 2000e et seq. For the following reasons, plaintiffs' motion is granted and, upon reconsideration, the Court amends its prior Opinion in part.
The January 26, 2004 Opinion and Order will be referred to asTamayo II throughout this Opinion.
I. BACKGROUND
Familiarity with the two prior decisions issued in this case is presumed. See Tamayo v. City of New York, No. 02 Civ. 8030, 2003 WL 21448366 (S.D.N.Y. June 23, 2003) ("Tamayo I") (granting defendant's motion to dismiss the Amended Complaint and granting plaintiffs leave to replead); Tamayo v. City of New York, No. 02 Civ. 8030, 2004 WL 137198 (S.D.N.Y. Jan. 26, 2004) ("Tamayo II") (granting in part and denying in part defendant's motion to dismiss the Second Amended Complaint). Briefly, plaintiffs are detectives with the New York City Police Department ("NYPD"), who brought this action on behalf of themselves and a putative class of Latino and African-American undercover officers in the NYPD against the City of New York. Plaintiffs' Second Amended Complaint ("2d Am. Compl.") and Vazquez's Complaint ("Vazquez Compl."), which were consolidated by the December 31, 2003 Consolidation Order, assert federal and state law claims based on NYPD's alleged discrimination on the basis of race and national origin in the hiring, assignment, promotion, and working conditions of undercover officers, as well as alleged retaliation, Equal Protection violations, and breach of the implied covenants of good faith and fair dealing in the undercover officers' employment contract. In Tamayo II, this Court dismissed all of plaintiffs' claims except for two arising out of alleged violations of 42 U.S.C. § 1981, 1983, including: (1) Tamayo's claim that the NYPD failed to promote him; and (2) plaintiffs' claims that the NYPD failed to adequately protect Latino and African-American undercover officers based on race and national origin discrimination. Plaintiffs now move for reconsideration and argue that the Court improperly dismissed two of their claims under Title VII of the Civil Rights Act, codified at 42 U.S.C. § 2000e et seq. ("Title VII").
Plaintiffs have not yet moved to certify the alleged class and ought to bear in mind that the Court must determine as soon as practicable whether or not to certify the class. Fed.R.Civ.P. 23(a)(A)
II. DISCUSSION
A. Plaintiffs' Motion for Reconsideration and Notice of Appeal
Plaintiffs move for reconsideration pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P." or "Rule") 60(b) and argue that factual errors and the interests of justice compel the Court to reinstate Tamayo's and Vazquez's Title VII claims. However, as defendant notes, a Rule 60 motion is not the proper vehicle for reconsideration becauseTamayo II was not a final judgment or order. Fed.R.Civ.P. 60(b) ("On motion . . . the court may relieve a party . . . from a final judgment order, or proceeding . . .") (emphasis supplied);see also Sank v. City Univ. of New York, No. 94 Civ. 0253, 1997 WL 65910, at *1 (S.D.N.Y. Feb. 13, 1997) (deciding that a Rule 60(b) motion was inapplicable to an order that dismissed only some of plaintiffs discrimination claims, which was interlocutory and not a final judgment); Cancel v. Mazzuca, No. 01 Civ. 3129, 2002 WL 1891395, at *3 (S.D.N.Y. Aug. 15, 2002) (same regarding an order that granted partial summary judgment); Middle Mkt. Fin. Corp. v. D'Orazio, No. 96 Civ. 8138, 2000 WL 798634, at *2 (S.D.N.Y. June 20, 2000) (same). Since, sadly, this is just the tip of the iceberg in terms counsel's overlooks or misconceptions, I will simply construe plaintiffs' submissions properly, i.e., as a motion for reconsideration pursuant to Local Rule 6.3. Charter Oak Fire Ins. Co. v. Nat. Wholesale Liquidators, No. 99 Civ. 5756, 2003 WL 22455321, at * 1 (S.D.N.Y. Oct 29, 2003) (treating plaintiffs Rule 60(b) motion as a Local Rule 6.3 motion for consideration because the challenged order was not final since claims remained with respect to some of the defendants);cf. Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 40-41 (2d Cir. 1982) ("Notwithstanding a plaintiffs own reliance on Rule 60(b), where a post-judgment motion is timely filed and calls into question the correctness of that judgment it should be treated as a motion under Rule 59(e), however it may be formally styled.") (quotation marks and citation omitted): Sanchez v. Dankert, No. 00 Civ. 1143, 2003 WL 1878417, at *1 (S.D.N.Y. April 14, 2003) (holding that plaintiffs motion titled as a motion for reconsideration under Rule 59(e) was more properly analyzed as a Rule 60(b) motion).
Defense counsel, who is no better, having miscalculated both the date of docketing and the manner in which time is calculated, unpersuasively argues that plaintiffs' motion is time-barred. Local Rule 6.3 requires that "[a] notice of motion for reconsideration . . . shall be served within ten (10) days after the docketing of the court's determination of the original motion." Plaintiffs have complied with this requirement Because Tamayo II was docketed on January 30, 2004 and Local Rule 6.4 and Fed.R.Civ.P. 6(a) provide that time periods of eleven days or less exclude weekends and legal holidays for the purposes of time computation, the last day plaintiffs could have served their notice of motion was February 17, 2004. Defendant acknowledges that plaintiffs'original motion for reconsideration was dated February 17, 2004.
Because plaintiffs motion papers were submitted before February 26, 2004 when Local Rule 6.3 was amended, the prior version of the rule applies.
Under Fed.R.Civ.P. 6(a), a "legal holiday" includes a "day appointed as a holiday . . . by the state in which the district court is held." New York law designates Lincoln's Birthday and Washington's Birthday as public holidays, which fell cm February 12, 2004 and February 16, 2004 respectively. N.Y. Gen. Constr. Law § 24.
The Clerk of the Court did not accept plaintiffs' original motion papers because they lacked an original signature on each submission. Plaintiffs subsequently re-filed an amended notice of motion and supporting memorandum of law, which were filed on February 23, 2004 and docketed on February 24, 2004.
Even if defendant was not served with plaintiffs' motion papers by February 17, 2004 as required under Local Rule 6.3, plaintiffs submitted a letter to the Court on February 2, 2004 (the first business day afterTamayo II was docketed) in which they requested a pre-trial conference to discuss the Tamayo II Opinion because they believed the Court had overlooked a material issue of fact with respect to Tamayo's Title VII claim. The Court, however, was unavailable for a pre-trial conference and therefore directed plaintiffs to submit a motion for reconsideration, and, by Order dated February 17, 2004, set out a briefing schedule. While plaintiffs ought to have moved for reconsideration in the first instance as Local Rule 6.3 directs, this Court will not elevate form over substance to find plaintiffs' motion to be untimely. In re Holocaust Victim Assets Litig., 282 F.3d 103, 107 (2d Cir. 2002) (construing letters to the district court as a motion for reconsideration); RLS Assocs., LLC v. United Bank of Kuwait PLC, No. 01 Civ. 1290, 2003 WL 22801918, at *1 (S.D.N.Y. Nov. 24, 2003) (same).
Finally, I conclude that this Court has jurisdiction to decide plaintiffs' motion for reconsideration notwithstanding the fact that plaintiffs filed a notice of appeal of the Tamayo II Opinion on February 27, 2004. Ordinarily the filing of a notice of appeal divests a district court of jurisdiction. Camacho v. United States, 302 F.3d 35, 36 (2d Cir. 2002) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). However, a Rule 59(e) motion for reconsideration has the effect of holding an appeal in abeyance. Fed.R.App.P. 4(a)(4)(B)(i) (providing that when a motion is made pursuant Rule 59 and other enumerated rules, a notice of appeal does not become effective until that motion is decided); Muze, Inc. v. Digital On-Demand, Inc., No. 00 Civ. 8195, 2003 WL 21359705, at *1 (S.D.N.Y. June 12, 2003). While this convoluted process creates a problem, under the law of this Circuit, a motion for reconsideration pursuant to Local Rule 6.3 is the functional equivalent of a Rule 59(e) motion.Palmer v. Artuz, No. 97 Civ. 5457, 2000 WL 640656, at *1 n. 1 (S.D.N.Y. May 17, 2000); Jackson v. Walker, No. 96 Civ. 1064, 1998 WL 851600, at *1 (S.D.N.Y. Dec. 8, 1998); cf. United States ex rel. McAllan v. City of New York, 249 F.3d 48, 52 (2d Cir. 2002) (construing a Local Rule 6.3 motion for reconsideration as a Rule 59(e) motion for the purposes of calculating the time for appeal);City of Hartford v. Chase, 942 F.2d 130, 133 (2d Cir. 1991) (ruling that a motion for reconsideration under Local Rule 9(e) of the District of Connecticut was for practical purposes the same as a Rule 59(e) motion). Accordingly, this Court may decide plaintiffs' motion for reconsideration.
It should be noted parenthetically that while a district court may not grant a Rule 60(b) motion without the appellant requesting a remand from the Second Circuit, a district court does have jurisdiction to deny a Rule 60(b) motion, King v. First Am. Investigators, 287 F.3d 91, 94 (2d Cir.), cert. denied 537 U.S. 960 (2002). A district court's limited jurisdiction with respect to a Rule 60(b) motion does not bear on the instant motion because a Rule 60(b) motion was the inappropriate method of challenging the Tamayo II Opinion and I therefore construed plaintiffs' submissions as a motion for reconsideration under Local Rule 6.3. Am. Postal Workers Union v. U.S. Postal Serv., 595 F. Supp. 403, 413 n. 5 (D. Conn. 1984),rev'd on other grounds, 766 F.2d 715 (2d Cir. 1985) (deciding that the defendant's notice of appeal was a nullity because the district court treated defendant's motion for reconsideration, which was improperly styled as a Rule 60 motion, as a Rule 59(e) motion).
B. Standard of Review
Local Rule 6.3 requires the party seeking reconsideration to "set forth concisely the matters or controlling decisions which counsel believes the court has overlooked." In other words, the movant must "point to controlling decisions or data that the court overlooked . . . that might reasonably be expected to alter the conclusion reached by the court" Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The standard for granting a motion for reconsideration is strict, id., however, a court may grant a motion for reconsideration "to correct a clear error or prevent manifest injustice." Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983) (quotation marks and citation omitted); see also U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., Ltd., 182 F.R.D. 97, 100 (S.D.N.Y. 1998), aff'd, 241 F.3d 135 (2d. Cir. 2001) ("Local Civil Rule 6.3 provides the Court with an opportunity to correct manifest errors of law or fact, hear newly discovered evidence, consider a change in the applicable law or prevent manifest injustice."). With this standard in mind, I turn to plaintiffs' arguments on reconsideration.
C. Reconsidered Title VII Claims
To assert a Title VII claim, a plaintiff must file a complaint or "charge" with the Equal Employment Opportunity Commission ("EEOC") or a state equivalent — in this case, the New York State Division of Human Rights ("NYSDHR") — within 300 days of the complained-of acts. 42 U.S.C. § 2000e-5; Butts v. New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993),superceded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998). A district court lacks jurisdiction to hear a Title VII claim that is not included in or "reasonably related" to the EEOC charge. Id. In Tamayo II, I concluded that all of plaintiffs' Title VII claims were procedurally barred because they had not complied with the administrative prerequisites. Plaintiffs now contend that the charges filed by Tamayo and Vazquez were indeed procedurally sufficient.
1. Tamayo's Right-to-Sue Letter
In Tamayo II, I dismissed Tamayo's Title VII claims because they were procedurally defective for two reasons. First, Tamayo's January 8, 2002 charge, in which he complained of his alleged disability (respiratory allergies) and NYPD's failure to provide a smoke-free environment, was not "reasonably related" to his discrimination claims.Tamayo II, 2004 WL 137198, at *3. Second, Tamayo's April 2, 2002 charge, in which he alleged retaliation and discrimination on the basis of race and color, did not result in a right-to-sue letter. Plaintiffs challenge this second ruling and argue that Tamayo's April 2, 2002 complaint did, in fact, result in a right-to-sue letter and, thus, his Title VII claims should be reinstated. Upon reconsideration, and again, after the fact, indeed after the Opinion was handed down, plaintiffs have come up with such a document, a document, by the way, that was hardly hiding, nonetheless, I conclude that the plaintiffs are correct
I need not address defendant's argument that Tamayo's April 2, 2002 charge is unsigned and thus legally defective because the April 2, 2002 charge, including the third page which bears Tamayo's signature, was appended to Defendant's Reply Memorandum of Law in Support of Their Motion to Dismiss the Amended Complaint.
Tamayo's January 8, 2002 complaint was designated as EEOC charge number 16GA200371. On July 18, 2002, the EEOC issued Tamayo a right-to-sue letter, which stated that he had "the right to institute a civil action under Title I of the American with Disabilities Act of 1990," a copy of which was annexed to plaintiffs' opposition to defendant's first motion to dismiss. Again, inexplicably, plaintiffs did not submit the NYSDHR's July 23, 2002 Determination and Order until after Tamayo II was decided. This document, which references Tamayo's first charge (EEOC charge number 16GA200371), states that the NYSDHR dismissed Tamayo's April 2, 2002 complaint because:
Processing the complaint will not advance the State's human rights goals in as much as the matter is presently being litigated in Federal Court in which forum all issues concerning the question of discrimination on the basis of retaliation, race and color can be resolved. Memorandum in Support of Plaintiffs' Amended Motion for Reconsideration, Exhibit F at 1 (emphasis supplied).
Thus, the July 23, 2002 Determination and Order appears to suffice as an amendment to Tamayo's initial right-to-sue letter and expanded the authorized scope of litigation to include retaliation and race and color discrimination claims. Plaintiffs acknowledge that they did not explicitly assert facts or provide evidence of Tamayo's amplified right-to-sue letter. Indeed, they never even saw the letter or at least never produced it to the Court. Nevertheless, it may be said, a little tongue in cheek, that this is a factual matter that the Court has overlooked. In the interests of justice and the overarching principle of deciding each case on its merits, I will vacate the portion of theTamayo II decision that dismissed Tamayo's Title VII claims.
2. The Timeliness of Vazquez's Claim
In Tamayo II, I ruled that Vazquez's Title VII claim was untimely because his charge was filed on March 21, 2003, which was more than 300 days after June 1, 2002, the last day he alleged the challenged conduct occurred. 42 U.S.C. § 2000e-5; Butts v. New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 '(24 Cir. 1993). In motion for reconsideration, plaintiffs argue that Vazquez's claim was not time-barred because: (1) plaintiffs alleged an ongoing violation; and (2) as set forth in the Vazquez Compl., the relevant time frame is actually between March 1998 and July 2002. I have already considered and rejected plaintiffs' first argument, which does not merit any further discussion. See Nat R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (holding that the continuing violation doctrine does not apply where alleged discrimination consists of discrete acts, such as "termination, failure to promote, denial of transfer, or refusal to hire," each of which "starts a new clock for filing charges alleging that act"); Lambert v. Genesee HOSP., 10 F.3d 46, 53 (2d Cir. 1993) ("The continuing violation exception applies to cases involving specific discriminatory policies or mechanisms such as discriminatory seniority lists or discriminatory employment tests. However, multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation.") (internal citations omitted).
As for plaintiffs' second argument, the latest date Vazquez indicated that discrimination occurred in his EEOC charge was on June 1, 2002, which falls outside the 300-day time frame. Moreover, the EEOC dismissed Vazquez's complaint as untimely. Since plaintiffs have not offered any grounds for equitable tolling, this Court does not have jurisdiction to hear his claim. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Vazquez cannot cure this procedural defect simply by alleging a later date in his civil complaint Matusovsky v. Merrill Lynch, 186 F. Supp.2d 397, 400 (S.D.N.Y. 2002) (holding that, in deciding a motion to dismiss, allegations are insufficient where they are contradicted by a document that is integral to or explicitly referenced in the complaint); In re Livent, Inc. Noteholders Sec. Litig. 151 F. Supp.2d 371, 405-6 (S.D.N.Y. 2001) ("[A] court need not feel constrained to accept as truth conflicting pleadings . . . that are contradicted . . . by documents upon which its pleadings rely.). Accordingly, upon reconsideration, I adhere to Tamayo II insofar that it dismissed Vazquez's Title VII claim.
E. Scope and Sufficiency of Plaintiffs' Title VII Claims
Now that I have concluded that Tamayo did have a valid right-to-sue letter, I must re-visit the substantive issues raised in defendant's motion to dismiss the 2d.Am. Compl. and Vazquez Compl. and reconsideration submissions to determine which of plaintiff's claims are "reasonably related" to Tamayo's right-to-sue letter and whether any of those claims are legally sufficient
1. "Reasonably Related" Claims
A court may only hear Title VII claims that "either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is "reasonably related' to that alleged in the EEOC charge."Butts v. New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superceded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998). There are three types of situations in which claims may be "reasonably related" to the allegations in an EEOC charge: (1) where the conduct would fall within the scope of the EEOC investigation into the charge; (2) a claim of retaliation after the employee filed an EEOC charge; and (3) "incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402, 1403. The "reasonably related" doctrine can serve to incorporate conduct subsequent to the filing of the EEOC charge, but it does not permit inclusion of discriminatory acts that plaintiff knew of when s/he filed the EEOC charge. Hall v. City of New York, No. 00 Civ. 8967, 2002 WL 472057, at *4 (S.D.N.Y. March 27, 2002) (dismissing age and disability discrimination, failure to promote, and discriminatory transfer claims because they were not included in the EEOC charge).
In the 2d Am. Compl. and Vazquez Compl., plaintiffs alleged Title VII violations as a result of disparate treatment of and a disparate impact upon Latino and African-American undercover officers in hiring and assignment, promotion, and working conditions. The allegations in Tamayo's April 2, 2002 complaint to the NYSDHR, however, were considerably more narrow and included only two claims: (1) retaliation against Tamayo for having complained about NYPD's failure to enforce its no-smoking policy; and (2) discrimination because of race and color where Tamayo's supervisors deliberately placed his life in danger when they gave him faulty equipment because he was not "Caucasian."
Plaintiffs' allegations of discrimination in hiring and assignment and promotion are simply too attenuated from the substance of Tamayo's EEOC charge to be sustained in the present action. First, plaintiffs' allegations of discrimination in hiring, assignment, and promotion were not "conduct subsequent to the EEOC charge," Butts, 990 F.2d at 1401, and thus fall outside the "reasonably related" doctrine. At the time Tamayo — who served as an undercover officer from August 1999 to January 2002 — filed his charge on April 2, 2002, he had already been hired and assigned as an undercover and promoted to detective. Second, none of the three categories of "reasonably related" exceptions apply to plaintiffs' additional claims. Because the hiring and assignment and promotion allegations are conceptually distinct from the retaliation and working conditions claims Tamayo alleged in his charge, there is no reason to believe that an EEOC investigation would have touched upon them. These additional allegations are not retaliation claims nor do they allege discrimination "carried out in precisely the same manner alleged in the EEOC charge." Id. at 1403. Accordingly, the only claims "reasonably related" to Tamayo's right-to-sue letter are plaintiffs' allegations of disparate treatment and disparate impact in working conditions.
Plaintiffs may, however, assert their working conditions claims on the basis of both race and national origin discrimination. Some courts have concluded that a claim of discrimination based on national origin is not "reasonably related" to a claim of discrimination based on race and/or color. E.g., Benjamin v. New York City Dep't of Health, No. 99 Civ. 12345, 2002 WL 485731, at *4 (S.D.N.Y. March 29, 2002) (holding that plaintiffs claim of national origin discrimination was not "reasonably related" to her administrative charge that discussed differing treatment of "dark-skinned" and "light-skinned" employees) (citing cases). However, the Second Circuit had held that the better course is to read an EEOC charge to encompass claims of race and national origin discrimination where the facts alleged in the EEOC charge suggest that both forms of discrimination substantially overlap or where the line between race and national origin discrimination is indiscernible. Deravin v. Kerik, 335 F.3d 195, 202 (2d Cir. 2003); see also Alonzo v. Chase Manhattan Bank. N.A., 25 F. Supp.2d 455, 459 (S.D.N.Y. 1998) (concluding that plaintiffs claims of race discrimination were "reasonably related" to his claims of national origin discrimination because of the historic confusion as to whether "Hispanic" is a race or national origin category). This approach is sensible given Tamayo's reliance on both racial and national origin categories in the body of his April 2, 2002 charge, where he alleged that he was Hispanic and was discriminated against, in part, because he was "not Caucasian."
The EEOC defines national origin discrimination as "(T]he denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group." 29 C.F.R. § 1606.1
2. Sufficiency of Plaintiffs' Title VII Claims
The final issue is whether plaintiffs' disparate treatment and disparate impact claims regarding working conditions are legally sufficient For the reasons stated in Tamayo II with respect to plaintiffs' 42 U.S.C. § 1981, 1983 claims, I conclude that plaintiffs sufficiently alleged their claim of disparate treatment in working conditions — albeit barely — so as to provide fair notice to defendant as to what the claim is and the ground upon which it rests.Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
The same, however, is not true for plaintiffs' disparate impact in working conditions claim. Unlike a disparate treatment claim, which requires the existence of a discriminatory intent or motive, a disparate impact claim focuses on whether a facially neutral employment policy has a disparate effect on a protected group.Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001), cert. denied, 535 U.S. 951 (2002);Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1041 (2d Cir. 1993). Plaintiffs have failed to identify a specific policy and the specific manner in which it is enforced that would give rise to their disparate impact claim. In their fifth cause of action, plaintiffs merely allege that "[defendant has impacted Class members through its policies in . . . protecting the safety of Class members." 2d Am. Compl. ¶ 55; Vazquez Compl. ¶ 48. Reading the 2d Am. Compl. and Vazquez Compl. in their entirety, it appears that plaintiffs allege that the practice at issue is NYPD's intentional and knowing disregard of policies that are designed to protect undercover officers, an alleged 95% of whom are Latino or African-American. This allegation cannot logically sustain both plaintiffs' disparate treatment and disparate impact claims. Properly enforced, the challenged policy would have a positive impact on the putative class of undercover officers. Plaintiffs' allegations of discriminatory under-enforcement fell into their disparate treatment claim. See Cruz v. Coach Stores. Inc., 202 F.3d 560, 572 (2d. Cir. 2000) (deciding that allegations of discriminatory enforcement of a policy did not state a disparate impact claim, which requires a showing of a disparate impact of a neutrally enforced policy).
Moreover, this allegation simply does not fit within the framework of a disparate impact claim, which was designed for the "removal of employment obstacles, not required by business necessity, which create built-in headwinds and freeze out protected groups from job opportunities and advancement" Robinson, 267 F.3d at 160 (internal quotation marks and citation omitted); El-Bey v. City of New York, 151 F. Supp.2d 285, 300 (S.D.N.Y. 2001), aff'd, No. 01-7770, 2002 WL 722723 (2d Cir. April 24, 2002) (observing that "disparate impact analysis is more common, and seemingly more appropriate, where a facially neutral employment practice results in the exclusion of a disproportionate number of minorities from a particular employment group"). Finally, plaintiffs have not described an alternative employment practice and given defendant an opportunity to adopt it, as required by 42 U.S.C. § 2000e-2(k)(1)(A). Therefore, plaintiffs' disparate impact claim must be dismissed.
I recognize the hardships allegedly faced by Latino and African-American undercover officers, who may have been selected for undercover positions solely because of their ethnic and racial background and thereafter exposed to dangerous conditions where their supervisors were allegedly insensitive to their concerns and safety. Unfortunately, the administrative procedures that might have afforded more protection, or at least a more complete examination of plaintiffs' claims, were not properly resorted to in this case.
III. CONCLUSION
For the foregoing reasons, plaintiffs' motion for reconsideration is granted and upon reconsideration, Tamayo's Title VII claim with respect to disparate treatment in working conditions is reinstated. The Court adheres to the January 26, 2004 Opinion and Order (Tamayo II) in all other respects. The Clerk of the Court is instructed to close this motion and all other open motions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.