Sean G. Harris v. City of New York, Et Al. (Decision and Order)

Case 1:16-cv-00113-SJ-RER Document 31 Filed 10/12/17 Page 1 of 12 PageID #: 190
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
--------------------------------------------------)(
SEANG. HARRIS,
Plainti ff,
16 CV 01I 3 (SJ) (RML)
MEMORANDUM
AND ORD ER
-against-
THE CITY OF NEW YORK, et al.
Defendants.
-------------------------------------------------)(
JOHNSON, Senior District Judge:
Presently before this Court is a motion to dismiss by the City of New York
(the "City"), David Frankel, Beth E. Goldman, Jacques Jiha, Eloise Archibald, Sarah
Lazer-Gomez, 1 and Alexander Stratis (collectively, "Defendants").
Defendants argue that the complaint by Plaintiff Sean G. Harris ("Mr.
Harris"), alleging disparate treatment, disparate impact, and Monell claims, should
be dismissed on several grounds: (I) the disparate impact claims fail as a matter of
I .
law; (2) the di'sparate ·treatment claims fa il to plausibly raise an inference of
discriminatory animus;, (3) the Monell claims are not supported by evidence of
1
Sarah Lazer-Gomez' s last name is occasionally spelled as " Lazar-Gomez" in the Compla int. T his
opinion uses the spelling from the Compla int 's caption , Lazer-Gomez.
P-049 I\.-· l I \ \;.

r'.•
discrimination; and (4) the claims against Frankel, Goldman, and Jiha fail to
plausibly allege any personal involverrierit in the alleged discrimination.
Based on the parties' submissions and for the reasons stated below,
Defendants ' motion is GRANTED as to Frankel, Goldman, and Jiha, and DENIED
as to all other defendants..
I. BACKGROUND
• t
a. Plaintiff's Employment Experience
Mr. Harris is an African-American male and a former Deputy Sheriff of the
New York City Department of Finance 's (" DOF" ) Sheriff's Division. He began the
1
hiring and testing process for this position in oi ·~·round July 2012. As a condition of
employment, candidates must pass

.
anumber of evaluations, including written, oral,
I '
physical, and psychological fitness evaluations. In December 2012, Plaintiff
qualified on the written, oral and physical fitness evaluations.
On March 20, 2013, Plaintiff graduated from the New York Sheriff's
Academy and was.assigned to the special plainclothes unit, called the "Tobacco Task
Force" as a provisiq~~.I. }?,eputy Sheriff He wa~ not, given a firearm since he had not
' ... .
yet passed his psychological evaluation.
The psychological evaluation consisted of two separate interviews conducted
by Sarah Lazer-Gomez, a psychologistwith tHe·N ew York City Police Department
2
("NYPD"). On Jul y 31 , 2013, Ms. Lazer-Gomez submitted a finding that Mr. Harris
demonstrated '" poor judgment, poor credibility and failure to take responsibility for
past problematic behavior. "' (Docket Number ("Dkt. No.") 1, at~ 72). Mr. Harris
. ·!.;:!;IL· .. . ., l· . I .
was disqualified from service. He appealed his disqualification, submitting a
psychological evaluation performed by his own expert, Dr. Robert Daley, the forme r
Director of Psychological Services for the NYPD. That appeal was denied. (Id. at
•1• l
83.) ·· '
In August 2015 , Mr. Harris was re-evaluated for psychological fitness. Thi s
time, another NYPD psychologist, Alexander Statis, conducted the interview. Mr.
Statis' findings were essentially the same as Ms. Lazer-Gomez's.
b. Plaintiff's Class
. '
I.·.
Mr. Harri'~· Ac~demy class c'onsi.sted of is candidates: five Black; seven
Caucasian; two Hispanic; and one Asian. A ll five Black candidates from his
applicant pool were disqualified during the psychological evaluations. But none of
the seven Caucasian candidates were disqualified. Mr. Harris alleges that the Black
candidates were equally qualified or more qualified than the Caucasian candidates,
, I .
but were evaluated differently. He further alleges that three of the five Black
candidates went on to become members of other law enforcement agencies, including
the New Jersey State Police.
3
I•'.
J
P· 049
. I ,
I),'<'· ..
· c. · ' " Plaintiff's Cl'alnk'L
Mr. Harris claims that his disqualification was based on his race. He claims
that the psychological evaluations at DOF are inherently vulnerable to bias and that
the City does nothing to ensure that' oias is· neutralized. He asserts civil rights
violations along with violations ofNew York State and New York City human rights
laws.
JJ DISCUSSION
a. The Motion to Dismiss Standard
In order to survive a motion to dismiss under Federal Rule of Civil Procedure
l 2(b)( 6), a pl~lnt iff mu.~t plead s~ffiyf ei;it faqt_S,::"to state a claim for relief that is
plausible on its face." Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A claim is fac ially plausible when
"the plaintiff pleads factual content .that allows the court to draw the reasonable
. ' l
inference that the defendant is liable for the misconduct alleged." Igbal, 556 U.S. at
678. Plausibility "is not akin to a 'probability requirement,' but it asks for more than
a sheer possibi lity that a defendant has acted unlawful ly." Id.
b. The Applicable Law
Plaintiff alleges race-based employment discrimination under the Federal
Civil Rights Statute, New York Stat~ Human R.igh.ts Law (NYSHRL), and New York
·1 ' .' '"·~/ , ~ l. .l,' '~ ' ' ~
p. 049
Case 1:16-cv-00113-SJ-RER Document 31 Filed 10/12/17
.I .. I' Page 5 of 12 PageID #: 194
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City Human Rights Law (NYCHRL). See 42 U.S.C. § 1983; N.Y.S. Exec. Law §
296; and N.Y.C. Admin. Law§ 8-107.
Section 198} pr:<;>hibits employment discrimination in the form of disparate
treatment, or intentional discrimination. Therefore, "proof of discriminatory intent
or purpose is required." See Village of Arlington Heights v. Metropolitan Housing
Development Corp., 97 S. Ct. 563, 563-566 (1977); Reynold s v. Barrett, 685 F.3d
. ' '
193, 201-02 (2d Cir. 20 12).
In contrast, claims of race-based employment discrimination under New
York State and New York City human rights laws can proceed under either a
disparate treatment or disparate impact analysis. See Brown v. City of New York,
No. 16-CV- l 106(NG), 2017 WL 1102677, at *3 (E.D.N.Y. Mar. 23, 2017).
To allege . ~rdi~parate impact claim; a plaintiff must establish that defendants
adopted a facially neutral policy that had a di sparate effect on a protected group; he
need not establish discriminatory intent. See Watson v. Fort Worth Bank & Trust,
487 U.S. 977, 986-88 (1988); see also Gordonlv. Citv ofN.Y., 2016 WL 4618969,
at *4-7 (S.D.N.Y. Sept. 2, 2016).
Mr. Harris' disparate treatment claim under Section 1983 and his disparate
treatment and disparate impact claims under NYSHRL are analyzed as they would
be under Title VII. See Teasdale v. N.Y. City Fire Dep't, 574 Fed.Appx. 50, 52 (2d
Cir. 2014). Hi s NYCI-IRL claims are analyzed under the more lenient New York
5
1. . .
P·O<C9
• I
City standard. 2 As such, if Mr. Harris has successfully pleaded his Section 1983 and
NYSHRL claims, then the Cou11 need not analyze his NYCHRL claim independently
as it necessarily survives. See Brown, No. 16-CV-l 106(NG), 2017 WL 1102677, at

,., ; I
*3 (E.D.N.Y. Mar. 23, 2017).
c. Plaintiff's Claims
1. Disparate Treatment
A plaintiff bringing an employment discrimination claim under disparate
treatment need not, at the pleading stage, make out a prima facie case under the
McDonnell Douglas standard because that standard is an evidentiary standard, not a

,, .
pleading requirement. 3 , See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 509 n.2,
510-11 (2002). In the Second Circuit, a disparate treatment claim is suffic iently
pleaded if the plaintiff alleges ( 1) his employer 'took adverse action against him and
(2) his race was a motivating factor in the adverse action. See Vega v. Hempstead
Union Free Sch. Dist., 80 1 F.3d 72, 85-86 (2d Cir. 20 15). Such a claim is plausible
2
"The Local Civi l Ri'ghts Restoration Act of2005 , N.Y.C. Local Law No. 85 (2005) .. . abol ish[ed]
' parallelism ' be twee~' the City HRL and federal and state anti-discrimination law." Loeffler v. Staten
Island, 582 F.3d 268, 278 (2009). New York City human rights law was intended to be "construed
liberally'' and considered "uniquely broad" regard less of whether comparably worded state and
federa l laws are so construed. See Id.; see also N.Y.C. Local Law No. 85, § I (2005). Therefore, the
similarly worded state and federal statutes are to be considered a floor for New York City human
rights law, not a parallel. Loefner, 582 F.3d at 278.
3
The McDonnell Do.uglas test requires the plaintiff to show ( I) membershi p in a protected group,
(2) qualification for the job in question, (3) an adverse employment action, and (4) circumstances
supporting an inference of discrimination. See McDonnell Douglas Corp. v. Green. 4 11 U.S. 792,
800 ( 1973). l
P-049
. ( ~·.
if it alleges.facts\ that ." support a rpinim,al· inference of discriminatory motivation."
Id. at 86-87.
There is no dispute that Mr. Harris suffered an adverse employment action.
Therefore, thi s Cou11 will only consider whether Mr. Harris has sufficiently pleaded
that race was a motivating factor in his termination.
Qualifications
'I
According to Defendants, race was not a motivating factor in his
disqualification. Mr. Harris failed the psychological evaluation and therefore was
not qualified to hold the positi on. But Mr. Harris alleges that the psycho logical
• S,. l; i '·d 1:"tr •
examination i.tsei'f was discriminatory. '· Whe;~ the " heart of plaintiffs case is [a]
charge that the evaluation scheme was itse lf biased," the allegedly biased elements
of that scheme "should not be used as a way to disprove [his] qualification for the
job." Brown, No. 16 CV 11 06(NG), 20 17 WL 11 02677, at *4 (E.D.N .Y. Mar. 23 ,
20 17) (internal citations omitted).
Mr. Harris' complaint seems to plausi bly support the conc lusion that he was
qualified. He had prior experience as a police officer. He served honorably in the
United States Army. He held a Master's Degree in Criminal Justice. He passed the
written, oral, physical, and fitness examinations. He successfully completed the
Sheriffs Academy and the initial course ir\ firearms and deadly physical force
I . '.'
training. He worked in the Tobacco Task Force Unit satisfactorily as a provisional
p. 049
Deputy Sheriff until he was discharged because of the psychological evaluation.
Moreover, he obtained an independent psychological evaluation, which found him

. ..... ..'
psychologically qualified for the position, supporting his allegations that the original
evaluation was somehow biased.
Facts Supporting Inference of Discrimination
In addition to the above qualifications, Mr. Harris offers more than enough
evidence to support a minimal inference of discriminatory intent. He all eges that the
psychological evaluation, as performed by the NYPD for the DOF, is inherently
vulnerable to implicit bias. Mr. Harris alleges that the evaluations are not monitored
or reviewed in such a way as to prevent bias. As an example of the inherent
subjectivity in the testing, he points to the psye.hfological evaluation performed by hi s

..
. \•.
own expert, Dr. Robert Daley, the former Director of Psychological Services for the
NYPD. Dr. Daley found Mr. Harris psychologically fit for the job. Defendants offer
no explanation for the discrepancy nor do they attempt to assail the credibility or
accuracy of Dr. Daley's evaluation.
Moreover, Mr. Harris all eges that his case is not unique. He claims that of
the 15 people in his Academy class, all fi ve Black candidates were disqualified based
.i l.1ilfi 1 1.. I i. " .. · .. .
on their psychological evaluation; no Caucasian candidates were disqualified, despite
comparable backgrounds and qualifications. Defendants argue that the sample size
is too small to draw any conclusions from those statistics. But Mr. Harris' claims
1 I 1)1
. 8
p. 049
suggests that "an unambiguous difference in outcomes for [B]lack and [Caucasian]
Deputy Sheriff can.di~ates emerged at a single" discrete point in the se lection process"
,1 '• ., d \ '
- the psychological evaluation. Brown, No. 16 CV 1106(NG), 20 17 WL 1102677,
at *5 (E. D.N.Y. Mar. 23, 20 17). Such an allegation, together with Mr. Hanis'
qualifications, and his expert' s report lends plausible support to a minimal inference
I
of discriminatory motivation. Therefore, Mr. Harri s has pl ausibly pleaded a Secti on
1983 and NYSHRL disparate treatment claim. Necessarily then, he has sufficiently
pleaded a NYCHRL disparate treatment claim.
2. Disparate Impact
Defendants argue that Mr. Hanis ' disparate impact claim fail s as a matter of
law because Mr. Harris does not allege any facially neutral practice. According to
I •
Defendants, Mr. Harris' claims that the psychological evaluation process is "fraught
with subjectivity and implicit bias" undermine any claim of a neutral practice since
it sounds in intentional discrimination. But the United States Supreme Court has
already foreclosed . that argument: ·" d ispara te i'ri1pact analysis is in principle no less
applicable to subj ective employment criteria than to objective or standard ized tests."
Watson, 487 U.S. at 990.
The requirement that an empl oyment practice be "facially neutral" does not
mean it must be obj ective; "subj ective or discretionary empl oyment practices" that
.
9
are "facially neutr,al [and] adopted wi.thout discriminatory intent [] may have effects
'I ' f" ~ • ! ... r.. •\
that are indistinguishable from intentionally discriminatory practices." Id. at 990-91.
Mr. Harris alleges that the evaluation process is facially neutral ; in other
words, there is nothing di,scriminatory about requir.ing Deputy Sheriff candidates to
submit to a psychological evaluation. Such an assertion is consistent with a claim
that psychological evaluations are inherently vulnerable to bias. Therefore, Mr.
Harris has successfull y pleaded a facially neutral policy.
Mr. Harris also sufficiently pleaded that, because of the facia lly neutral policy
described above, all Black candidates were di squalified, while no Caucasian
candidates were 1.disqualified,

~ . despite similaui:backgrounds.
.. "The disparity in
outcomes between [B]lack and [Caucasian] candidates was stark, and these outcomes
were determined at a specific, dispositive phase in the selection procedure." Brown,
No. 16 CV 1106(NG), 20 17 WL 1102677, at *6 (E.D.N.Y. Mar. 23 , 2017). There is
no reason why these outcomes would not be enough, at the motion to dismiss phase,
to support an allegation of disproportionate effect. Therefore, having plausibly
alleged a fac ially .n~utr~J poljcy and .a disproportionate effect, Mr. Harris has
.·~ · l:f'' {>i ·. ~ ' ' -'t' I '
sufficiently pleaded disparate impact.
3. Monell
Defend ~nts argue that Mr. Han:is:has fai led to plead any facts giving rise to
an inference of discrimination and.therefore his Monell claims must fail. However,
10
·I I
P-049
fo r the reasons stated above, Mr. Harris has successfull y pleaded fac ts giving ri se to
an inference of disc~in1·in~ti on s~fficien't .for tl1is stage in the proceedings. Therefore,
Defendants' motion also fails on the Monell claim.
Mr. Hanis alleges that the City knew or should have known that under the
circumstances Qf an.individualized:and:fact-interlsive evaluation, discrimination may
occur in the absence of any meaningful efforts to prevent it. He argues that hav ing
done nothing to prevent such di scrimination - like reviewing and monitoring
evaluations - the City has shown deliberate indifference sufficient to constitute a
municipal po licy under Monell. See Ricciuti v. N.Y. C . Transit Auth., 941 F.2d 11 9,
122-23 (2d Cir. 199 1) (citing City of Canton v. Harris, 489 U.S . 378, 388-92 (I 989)).
. .,
Since Defendants have not seen fit to give any substance to their argument on this
Ir.)" : · : ;';f qtj< ! ' ' J \:I I !_
claim, the Monell claim survives the motion to dismiss.
4. Indi vidual Commi ssioners
An indiv idua l-. is not liable fon idamages under NYCHRL, NYSHRL or
Section I 983 merely because of a pos it ion of authority; he or she must be personally
involved in the alleged deprivati on. See Back v. Hastings On Hudson Union Free
Sch. Dist. , 365 F.3d I 07, I 27 (2d Cir. 2 004). Personal involvement may be shown
where:"( 1) the defendant participated directly in the alleged constitutional violation,
(2) the defendant, after being info rmed of the violation through a report or appeal,
fai led to remedy the..wwng, (3.) the defei;idant qeated a policy or custom under which
..; . ·~·: ' :~ ~ '. . . .
11
P· 049
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom,(4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate indifference
by failing to act on information indicating that unconstitutional acts were occurring."
Id. at 127.
The bare allegation that, as agency heads, Frankel, Goldman, and Jiha were
"legally obligated to ensure the aforementioned procedural safeguards in the hiring
and selection process," does not plausibly establish awareness or personal
involvement under any theory put forth by Mr. Harris. Therefore, any claims against
the Frankel, Goldman, and Jiha are dismissed.
III. CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED as to
Frankel, Goldman, and Jiha, and DENIED as to all other defendants.

M'a i 1
SO ORDERED.
/S/ USDJ STERLING JOHNSON, JR.

Dated: October 11, 2017
Brooklyn, New York hnson, Jr., U.S.D.J.
12
PH}4»

Sean G. Harris v. City of New York, Et Al. (Decision and Order)

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Case 1:16-cv-00113-SJ-RER Document 31 Filed 10/12/17 Page 1 of 12 PageID #: 190

UNITED STATES DISTRICT COURT

THE CITY OF NEW YORK, et al.

JOHNSON, Senior District Judge:

Lazer-Gomez, 1 and Alexander Stratis (collectively, "Defendants").

Defendants argue that the complaint by Plaintiff Sean G. Harris ("Mr.

law; (2) the di'sparate ·treatment claims fa il to plausibly raise an inference of

P-049 I\.-· l I \ \;.

plausibly allege any personal involverrierit in the alleged discrimination.

as to all other defendants..

a. Plaintiff's Employment Experience

Mr. Harris is an African-American male and a former Deputy Sheriff of the

employment, candidates must pass

physical, and psychological fitness evaluations. In December 2012, Plaintiff

qualified on the written, oral and physical fitness evaluations.

yet passed his psychological evaluation.

The psychological evaluation consisted of two separate interviews conducted

by Sarah Lazer-Gomez, a psychologistwith tHe·N ew York City Police Department

was disqualified from service. He appealed his disqualification, submitting a

Statis' findings were essentially the same as Ms. Lazer-Gomez's.

candidates went on to become members of other law enforcement agencies, including

the New Jersey State Police.

a. The Motion to Dismiss Standard

In order to survive a motion to dismiss under Federal Rule of Civil Procedure

b. The Applicable Law

Plaintiff alleges race-based employment discrimination under the Federal

296; and N.Y.C. Admin. Law§ 8-107.

Section 198} pr:<;>hibits employment discrimination in the form of disparate

treatment, or intentional discrimination. Therefore, "proof of discriminatory intent

or purpose is required." See Village of Arlington Heights v. Metropolitan Housing

193, 201-02 (2d Cir. 20 12).

In contrast, claims of race-based employment discrimination under New

No. 16-CV- l 106(NG), 2017 WL 1102677, at *3 (E.D.N.Y. Mar. 23, 2017).

To allege . ~rdi~parate impact claim; a plaintiff must establish that defendants

at *4-7 (S.D.N.Y. Sept. 2, 2016).

as it necessarily survives. See Brown, No. 16-CV-l 106(NG), 2017 WL 1102677, at

A plaintiff bringing an employment discrimination claim under disparate

McDonnell Douglas standard because that standard is an evidentiary standard, not a

if it alleges.facts\ that ." support a rpinim,al· inference of discriminatory motivation."

There is no dispute that Mr. Harris suffered an adverse employment action.

that race was a motivating factor in his termination.

According to Defendants, race was not a motivating factor in his

job." Brown, No. 16 CV 11 06(NG), 20 17 WL 11 02677, at *4 (E.D.N .Y. Mar. 23 ,

20 17) (internal citations omitted).

qualified. He had prior experience as a police officer. He served honorably in the

written, oral, physical, and fitness examinations. He successfully completed the

training. He worked in the Tobacco Task Force Unit satisfactorily as a provisional

Deputy Sheriff until he was discharged because of the psychological evaluation.

Moreover, he obtained an independent psychological evaluation, which found him

evaluation was somehow biased.

Facts Supporting Inference of Discrimination

psychological evaluation, as performed by the NYPD for the DOF, is inherently

or reviewed in such a way as to prevent bias. As an example of the inherent

subjectivity in the testing, he points to the psye.hfological evaluation performed by hi s

accuracy of Dr. Daley's evaluation.

on their psychological evaluation; no Caucasian candidates were disqualified, despite

- the psychological evaluation. Brown, No. 16 CV 1106(NG), 20 17 WL 1102677,

of discriminatory motivation. Therefore, Mr. Harri s has pl ausibly pleaded a Secti on

pleaded a NYCHRL disparate treatment claim.

Watson, 487 U.S. at 990.

words, there is nothing di,scriminatory about requir.ing Deputy Sheriff candidates to

submit to a psychological evaluation. Such an assertion is consistent with a claim

that psychological evaluations are inherently vulnerable to bias. Therefore, Mr.