Know Your Rights
Discrimination at Parks

By JAMES A. BROWN

Last month, a Federal district court issued an interim decision addressing a classaction lawsuit filed against the New York City Department of Parks & Recreation. The decision, Wright v. Stern, is noteworthy for its description of the city's more dubious personnel practices and for highlighting systematic discrimination at a mayoral agency.

Wright does not declare ultimate winners and losers. Rather, the court's decision addresses the city's motion for summary judgment. Such motions seek to dismiss a lawsuit before it reaches a jury. The party moving for summary judgment alleges: (a) there exist no questions of material fact in dispute (so, therefore, no issues for a jury to decide); and (b) as a matter of law, the plaintiff's claims should be dismissed. Wright denied most of the city's summary judgment motion.

Pattern and Practice

The plaintiffs in Wright are African-American and Hispanic current and former Parks Department employees who claim the department is guilty of unlawful retaliation and employment discrimination (including a hostile work environment) based on race, color and national origin. The class action alleges a "pattern and practice" of discrimination and retaliation.

In such "pattern and practice" lawsuits, plaintiffs are alleging systemic discrimination in the workplace. To succeed, a plaintiff must demonstrate that the discrimination was the employer's "standard operating procedure." To do this, plaintiffs may rely on statistical evidence or testimony from the class members detailing specific instances of discrimination. Not surprisingly, these cases often hinge on competing, high-priced experts who argue over the meaning and accuracy of each party's statistics.

With regard to plaintiffs' claims of inadequate compensation and denied promotions, the court found plaintiffs' statistical analysis to be "imperfect." Still, the court found sufficient evidence that class members, when compared to white employees, were systematically placed in lower-paying jobs, were systematically underpaid, and experienced slower growth in pay. As for promotions, the court found a lower probability that class members would receive a wage promotion. The court also found sufficient evidence of unlawful retaliation directed at those who complained of discriminatory practices.

Illusory Personnel Rules

The court also considered plaintiffs' "disparate impact" claim. In a disparate impact claim, a plaintiff alleges that some facially neutral policy (i.e. one that is "color blind") adversely affects a "protected class." Plaintiffs claimed that the department's "neutral" policy regarding the posting of vacancies, and the department's application and interview process, negatively impacted on class members.

On this point, the court's decision exposes some of the more questionable, and occasionally illegal, personnel practices used in the civil service and apparently at the Parks Department. Some of the court's findings may sound all too familiar.

For example, the plaintiffs complained that the Parks Department failed to regularly post and interview for vacancies. The court observed that prior to the lawsuit, the Parks Department had no official policy for posting vacancies and regularly failed to post. Even when jobs were posted, interviews were not always conducted. When interviews were held, they were often only a formality for employees already selected for the position. There also existed no standard guidelines for conducting interviews. The court described these non-written, unevenly enforced personnel practices as permitting "discrimination to flourish." The court cited one example of a white applicant, with the lowest interview score, being hired over an African-American applicant with the highest interview score.

Failed Policies

Finally, consideration was given to the department's use of provisional employees and the long delays before civil service exams were administered. These personnel practices, concerning the use of provisionals and delayed exams, contributed to the department's climate of discrimination. As for the hiring and retention of provisional employees, the court cited a Parks Department official who made the obvious, but still disconcerting, observation that all city agencies ignore the rules governing provisional employment.

The lawsuit continues against the Parks Department. Not all of the plaintiffs' claims survived summary judgment, as some were dismissed. But the case is a good starting point for those wishing to read about systemic discrimination in a city agency and who need a reminder that failed personnel policies regarding posting, interviews and exams foster such a climate.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com .