Supreme Court, New York County, December 15, 2023

Georgia M. Pestana, Corporation Counsel, New York City (Dominique F. Saint-Fort of counsel), for defendants.

Alan M. Klinger and Dina Kolker, New York City, for plaintiff.

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 sued herein as 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 of City of NY § 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.

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 consist of 92% women of color while only 31% of the district directors are African American or Latino.{**82 Misc 3d at 565}

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 nonprofit agencies [*2]operating childcare 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 four 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{**82 Misc 3d at 566} 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 [*3]Department of Education instructors for similar employment."^[FN1] 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{**82 Misc 3d at 567} 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 the 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 mutually-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.{**82 Misc 3d at 568}

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. [*4]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 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 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 1, 2021, alleging claims of unlawful{**82 Misc 3d at 569} 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.

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, the plaintiffs accorded the benefit of every favorable inference, and a determination made 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]).

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 [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 [SD NY 2011]).[*5]

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 section 3813's notice of claim requirement (Union Free School Dist. No. 6 of Towns of Islip & 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 {**82 Misc 3d at 570}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 Counties Bd. of Coop. Educ. Servs. v Sweeney, 89 NY2d 395, 400 [1996], quoting Union Free School Dist. No. 6 of Towns of Islip & 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 commencement of an action" (Mills v County of Monroe, 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 312). 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. Commn., 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 playing 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 {**82 Misc 3d at 571}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]).

"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 of N.Y., Pilgrim Psychiatric Ctr., 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 [*6]plaintiff seeking to enforce his private rights (Mills v County of Monroe, 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. v Rondout Val. Cent. School Dist., 238 AD2d 829, 831 [3d Dept 1997]; Matter of Cayuga-Onondaga Counties Bd. of Coop. Educ. Servs. v Sweeney, 89 NY2d 395, 400 [1996]; Funderburke v Uniondale Union Free School Dist. No. 15, 172 Misc 2d 963, 965 [Sup Ct, Nassau County 1997], affd in part, dismissed in part 251 AD2d 622 [2d Dept 1998]).^[FN2]

The 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{**82 Misc 3d at 572} Rights Laws, 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 1, 2021, any allegations of conduct that took place prior to December 1, 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 1, 2018. Measuring three years back from December 1, 2021, any allegations that occurred prior to December 1, 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 (Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367, 373 [2007]). Accordingly, any allegations for claims against the DOE that arose before December 1, 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 back pay 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 N.Y., 2010 WL 1172769, *10, 2010 US Dist LEXIS 29791, *29 [SD NY, Mar. 8, 2010, No. 08 Civ. 6958(DAB)(DF)], rep & recommendation adopted 2010 WL 2034436, 2010 US Dist LEXIS 50039 [SD NY, May 20, 2010, No. 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., 2009 WL 306391, 2009 US Dist LEXIS 9320 [SD NY, Feb. 6, 2009, No. 03 Civ. 1075(TPG)], affd 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 Laws, the statute may be applicable in determining the limitations period of actionable conduct and period by which the plaintiff may be entitled to recover back pay (see Williams v Deutsche Bank Group, 2013 NY Slip Op 34190[U], *16 [Sup Ct, NY County 2013]). Dismissal on the basis that the claims are time-barred is, at least at this juncture, inappropriate or premature.{**82 Misc 3d at 573}

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 HRLs, it shall be an unlawful discriminatory practice "[f]or 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 Administrative 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, *4, 2020 US Dist LEXIS 37411, *10-13 [SD NY, Mar. 2, 2020, 18-CV-12150 (JMF)]; White v Pacifica Found., 973 F Supp 2d 363, 376 [SD NY 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 HRLs. The 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 National Labor Relations Bd., 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{**82 Misc 3d at 574} 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, *11, 2014 US Dist LEXIS 88117, *27-30 [SD NY, 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, *11, 2014 US Dist LEXIS 88117, *28-29 [SD NY, 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, *11, 2014 US Dist LEXIS 88117, *27-29 [SD NY, 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). The City defendants contend that [*7]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 ¶¶ 28, 29). This alleged integration gives the DOE the right to exercise significant control over the working conditions of the CBO directors (id.). The complaint alleges that DOE frequently exercises that right. Specifically, plaintiff alleges that the Division of Early Childhood Education (DECE) has developed detailed and specific standards and/or requirements that all early childhood education centers, including CBOs, must adhere to (complaint ¶¶ 6, 31). Plaintiff offers the DECE's "Early Childhood Framework for Quality" and "3-K For All and Pre-K For All Policy Handbook for New York City Childhood Education Centers" (DECE Handbook), both of which require the {**82 Misc 3d at 575}centers be managed on a day-to-day basis in a manner consistent with the DOE's requirements.

The DECE Handbook, provided to the CBOs by the DOE, includes mandated requirements for health and safety, facilities and materials, staffing, general program oversight, instructional programming, and program quality standards (see NY St Cts Elec Filing [NYSCEF] Doc No. 19). Additionally, plaintiff further alleges that the City defendants' degree of integration and control is exhibited by the following: (1) DOE sends policy directives and bulletins and routinely communicates instructions about the manner in which directors are to run their programs on the day-to-day; (2) teachers who wish to work in a program are encouraged to apply on the DOE centralized system and CBO directors may access the program to search for potential teachers; (3) DOE requires substantially the same qualification requirements for directors of district programs and CBO directors; (4) all teachers receive the same professional development and support and CBO directors are required to receive the same training as district directors; (5) DOE counts CBO and NYCEEC students together for enrollment numbers; (6) DOE sets the curriculum that must be used by all directors; (7) CBOs are subject to inspection and observation by DOE instructional coordinators and social workers; and (8) CBO directors are required to use DOE designated training software, maintain an account, and participate in DOE mandated trainings (complaint ¶ 30).

According plaintiff all reasonable inferences, plaintiff has sufficiently demonstrated that the City defendants have the right to control the means and manner of the CBO directors' work and could be considered the plaintiff's joint employer (see Mata v Omnivere, 2021 NY Slip Op 30535[U], *10 [Sup Ct, NY County 2021] [the right to control the means and manner of the worker's performance is the most important factor; once established other factors are of marginal importance]). The City defendants allege that merely providing funding for the programs, or by acting solely as the funding source for certain CBOs, does not establish the control necessary to establish a joint employer status. However, saying the City merely funds the program understates the City's role. In fact, plaintiff alleges that in addition to providing the funding, the City defendants set parameters for the financial terms offered to the CBO directors in the contractual bargaining process. The City participates in the collective bargaining process and exercises{**82 Misc 3d at 576} final control over the compensation rate the CBO directors are offered and will be paid (complaint ¶¶ 29, 42). The City defendants therefore maintain control over setting the wages of CBO directors because CSA and DCCNY cannot even enter into a collective bargaining agreement without the Office of Labor Relations and Office of Management and Budget, acting [*8]on behalf of the DOE, approving the proposed financial terms thereof (id.). Accordingly, the City defendants not only provide the money to fund the CBO directors compensation but arguably have complete control over the rate of compensation paid to the CBO directors (id.). Accepting these facts as alleged in the complaint as true, the plaintiff has sufficiently alleged that the City defendants are more than a mere funding conduit, but that they exercise at least substantial, if not complete, control over determining the compensation and/or salary terms of the CBO directors. "Ultimately, determination of whether an entity may be considered an employer is 'essentially a factual issue' " (Haight v NYU Langone Med. Ctr., Inc., 2014 WL 2933190, *12, 2014 US Dist LEXIS 88117, *31 [SD NY, June 27, 2014, No. 13 Civ. 04993(LGS)], quoting National Labor Relations Bd. v Solid Waste Servs., Inc., 38 F3d 93, 94 [2d Cir 1994]; see also Nelson v Beechwood Org., 2004 WL 2978278, *5, 2004 US Dist LEXIS 25622, *17-20 [SD NY, Dec. 21, 2004, No. 03 Civ. 4441(GEL)]). At this stage, plaintiff has plausibly alleged the existence of a joint employer relationship with the City defendants for the purposes of withstanding a motion to dismiss. Therefore, the City defendants' motion to dismiss is denied as to these grounds.

Applicability of the Amended New York State Human Rights Law Standard:

The City defendants correctly assert that the New York State Legislature amended the NYSHRL on August 12, 2019, rendering the standard for these claims closer to the standard under the NYCHRL (Wellner v Montefiore Med. Ctr., 2019 WL 4081898, *5 n 4, 2019 US Dist LEXIS 147844, *12 n 4 [SD NY, Aug. 29, 2019, 17 Civ. 3479 (KPF)]). However, this amendment only applies to claims that accrue on or after the effective date of October 11, 2019 (id.). For claims based on a discriminatory act or practice under the NYSHRL, the cause of action accrues, and the limitations period begins to run, on the date the allegedly discriminatory act occurred (Syeed v Bloomberg L.P., 568 F Supp 3d 314, 321 [SD NY 2021]).{**82 Misc 3d at 577}

In the complaint, plaintiff's allegations include two discrete acts that are accompanied by dates which pertain to the claims of disparate impact.^[FN3] Plaintiff alleges that the "CBO Directors have been damaged by the discrimination for decades and left out of the City's pay parity policy and initiative since at least 2019" (complaint ¶ 87). The pay parity policy that plaintiff is allegedly referencing in this point is the salary parity agreement between the City defendants and CBO teachers that was approved in November 2019 (complaint ¶ 34). Plaintiff also alleges that on May 18, 2021, DCCNY submitted its salary proposal to OLR/OMB for the CBO directors' successor agreement for the 2021-2025 period (complaint ¶ 44). It was the City defendants' alleged rejection of this proposal, and alternative proposal of a 6% increase above the teacher rate, which serves as the basis of the disparate impact claims (complaint ¶¶ 50, 51). As these [*9]allegations of actionable conduct occurred post-October 11, 2019, plaintiff's NYSHRL claims are afforded the amended and more lenient standard.

Further, considering the recency of the amendment, substantive case law is limited. As the language of the NYSHRL is now nearly identical to that of the NYCHRL, cases interpreting the NYCHRL are instructive (Brown v New York City Dept. of Educ., 2023 NY Slip Op 30106[U], *8 [Sup Ct, NY County 2023]). As the amended NYSHRL adopts the same standard as the NYCHRL, the plaintiff's "NYSHRL claims rise and fall with [the] NYCHRL claims" (Syeed v Bloomberg L.P., 568 F Supp 3d 314, 321 [SD NY 2021]). Accordingly, for purposes of this motion the plaintiff's NYSHRL and NYCHRL claims will be analyzed together (see generally Executive Law § 300; Local Law No. 85 [2005] of City of NY § 7).

Disparate Impact:

Plaintiff is alleging that although neutral, the City defendants' payment practices disparately impact the CBO directors and constitute unlawful employment discrimination on the{**82 Misc 3d at 578} basis of race, ethnicity, and gender in violation of the State and City Human Rights Laws (complaint ¶¶ 86, 97). Claims of disparate impact focus on practices that are fair in form but discriminatory in operation (Mandala v NTT Data, Inc., 975 F3d 202, 207 [2d Cir 2020]). Under the City HRL, a plaintiff bringing a claim of disparate impact must establish that a policy or practice of a covered entity or a group of policies or practices of a covered entity results in a disparate impact to the detriment of any group protected by the provisions (Administrative Code § 8-107 [17] [a] [1]). The analysis for disparate impact under the NYCHRL and now the NYSHRL considers the same factors analyzed under Title VII, but the claims are construed more liberally than those under Title VII or the previous NYSHRL (Fitchett v City of New York, 2021 WL 964972, *24, 2021 US Dist LEXIS 47763, *58-61 [SD NY, Mar. 15, 2021, 18 Civ. 8144 (PAE)]). Therefore, a plaintiff must (1) identify a specific employment practice or policy; (2) demonstrate that a disparity exists; and (3) establish a causal relationship between the two (Chin v Port Auth. of N.Y. & N.J., 685 F3d 135, 151 [2d Cir 2012]). To survive a motion to dismiss, the plaintiff must merely allege sufficient facts to support a plausible claim that an employer's facially neutral practice or policy disproportionately affects a particular protected group (Chalmers v City of New York, 2021 WL 4226181, *5, 2021 US Dist LEXIS 176527, *12-15 [SD NY, Sept. 16, 2021, 20 Civ. 3389]).

Plaintiff is challenging the payment policy or practices of the City defendants, specifically the implementation and perpetuation of the 6% rule and the district differential (complaint ¶ 83). The 6% rule is the proposal by the City defendants to pay the CBO directors a salary that is a 6% increase above the universal pre-K teacher rate. This was the contractual minimum salary required under the previous agreement (complaint ¶ 50). Plaintiff alleges that the City defendants' method of calculating pay for the district directors is in relation to the pay scale for DOE elementary school principals, not teachers (complaint ¶ 77). The district differential is the term used by plaintiff when referring to the City defendants' practice/policy of utilizing these two different methods for calculating the pay of the two groups: paying CBO directors in relation to teachers and paying district directors in relation to DOE principals (complaint ¶¶ 9, 51). For the purposes of a motion to dismiss, the plaintiff has plausibly alleged a specific employment{**82 Misc 3d at 579} practice or policy that is applicable to the CBO and district directors (see Chalmers v City of New York, 2021 WL 4226181, *2, 2021 US Dist LEXIS 176527, *4-7 [SD NY, Sept. 16, 2021, 20 Civ. 3389]).

A disparate impact plaintiff must establish that comparison reveals that although neutral, the policy in question imposes a disproportionate impact on a protected group of individuals (Rodriguez v Town of Ramapo, 412 F Supp 3d 412, 439 [SD NY 2019]). Plaintiffs often rely on [*10]statistical evidence to show a disparity in outcome between groups and the statistics must plausibly suggest that the challenged practice actually has a disparate impact (Mandala v NTT Data, Inc., 975 F3d 202, 207 [2d Cir 2020]). "[A] plaintiff's statistical analysis 'must [demonstrate] that the disparity is substantial or significant, and must be of a kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity' " (id. at 209, quoting Chin v Port Auth. of N.Y. & N.J., 685 F3d 135, 151 [2d Cir 2012]). The statistical analysis must therefore, at minimum, focus on the disparity between appropriate comparator groups or reveal disparities that are relevant to the claim plaintiff seeks to prove (id. at 210).

Plaintiff alleges that the district directors and the CBO directors perform substantially equal work in jobs that require equal skill, effort, and responsibility and under similar working conditions (complaint ¶ 61). In the complaint, plaintiff provides specific allegations which demonstrate that CBO and district directors perform similar instructional, operational, and administrative duties and the positions require the same qualifications and degree of skill (complaint ¶¶ 61-72; id. at 21 n 14). Accordingly, plaintiff has sufficiently alleged that the district directors are similarly-situated so as to constitute an appropriate comparator group for the CBO directors.

Plaintiff alleges there is a significant racial and/or ethnic imbalance between the CBO and district directors, alleging that the district directors are far less ethnically and racially diverse than the CBO directors, who are predominately women of color (complaint ¶ 3). Specifically, plaintiff has alleged that 92% of the CBO directors are women of color while, upon information and belief, only 31% of the district directors are Black or Latino (complaint ¶ 4). Additionally, plaintiff alleges that racial disparities in the early childhood workforce are well-known and well-documented, and that academic research and news coverage has made it clear that the staff in CBO{**82 Misc 3d at 580} programs are predominately women of color (complaint ¶ 55). Plaintiff also alleges that CSA has testified before City Council stressing the present pay inequity and that CBO directors are predominately women of color (complaint ¶ 58). Plaintiff has therefore set forth enough factual allegations to plausibly support the existence of a racial disparity between the groups and that the CBO directors are members of a protected group (see Syeed v Bloomberg L.P., 568 F Supp 3d 314, 321 [SD NY 2021]).

It is generally inadequate merely to assert that there is a bottom-line racial imbalance in the workforce without connecting it to any employment policy (Gordon v City of New York, 2016 WL 4618969, *7, 2016 US Dist LEXIS 118962, *20-25 [SD NY, Sept. 2, 2016, 14 Civ. 6115 (JPO) (JCF)]). However, plaintiff contends that the City defendants' payment practices have caused a discriminatory pay disparity and result in the deprivation of employment rights of women of color disproportionate to that of white district directors (complaint ¶¶ 10, 83). Specifically, plaintiff is alleging that despite the CBO and district directors' similarities, the women of color CBO directors are paid significantly less than the predominately white district directors because the payment practices suppress their wages and prevent them from earning as much (complaint ¶ 82). To demonstrate the disparity in outcome between the two groups, plaintiff asserts that directors of the CBOs earn about half of what their counterparts at public school-based programs earn (complaint ¶ 19). In support of the contention that there is a current and widening disparity in the salary levels of the two groups, plaintiff provides the DCCNY chart which dictates that the average CBO director's salary after two years is $77,010 while the average district director's is $138,135 (see complaint ¶¶ 45, 46). Plaintiff also alleges that under the City defendants' proposed terms for the [*11]successor agreement, CBO directors with an annual salary of $63,287 in 2019-2020 would receive $66,032 for the 2020-2021 school year while a first-year district director earns $133,375 as a starting salary (complaint ¶¶ 52-53). Therefore, plaintiff has sufficiently alleged that the City defendants' payment practices have a disparate impact and disproportionately affect the women of color CBO directors in comparison to their predominantly white district director counterparts.

Considering that in order to survive a motion to dismiss a plaintiff is not required to prove in detail the methodological soundness of the statistical assessment or to supplement the{**82 Misc 3d at 581} analysis with corroborating evidence (Mandala v NTT Data, Inc., 975 F3d 202, 209 [2d Cir 2020]), and that a plaintiff may rely on anecdotal or qualitative allegations (Gittens-Bridges v City of New York, 2020 WL 3100213, *15-16, 2020 US Dist LEXIS 102882, *39-46 [SD NY, June 11, 2020, 19 Civ. 272 (ER)]), the plaintiff has plausibly alleged the practices caused an adverse effect to support a claim under the disparate impact theory. Therefore, the City defendants' motion to dismiss the plaintiff's City and State Human Rights Law claims of disparate impact is denied.

For the reasons set forth herein above, it is hereby ordered that the motion by the City of New York and New York City Department of Education (sued herein as the Board of Education of the City School District of the City of New York) to dismiss the complaint is denied.