The Dugger Law Firm Has Filed a Disability Discrimination Class Action on Behalf of Professor Jan Ramjerdi and a Class of CUNY Faculty Challenging Denials of Remote Work Accommodations and FMLA Leave

Plaintiff Professor Ramjerdi (“Plaintiff”) has served as a tenured Associate Professor of English at Queensborough Community College (“QCC”) since September 1, 2009, and has taught at QCC since 2003.

On May 7, 2024, Plaintiff filed a class action complaint against the City of New York (“NYC”), the City University of New York (“CUNY”), QCC, CUNY Chancellor Félix V. Matos Rodríguez (in his official capacity), QCC President Christine Mangino, QCC Human Resources Director Martha Aspromatis, QCC Human Resources Director for Benefits Ysabel Macea, QCC ADA Compliance Coordinator/Assistant Vice President for Equity, Inclusion, and Belonging Amaris Matos, and former QCC Interim Executive Director for Human Resources Sangeeta Noel (collectively, “Defendants”).

The class action complaint’s allegations include an alleged policy, pattern, and/or practice of: (1) illegal denials of mental health disability-based fully remote work accommodation requests by full-time faculty; (2) illegal denials of requests for FMLA leave by full-time faculty based on a pending disability-based accommodation request and/or the permanent nature of the disability or serious health condition; (3) retaliation against full-time faculty for requesting disability-based fully remote work accommodations and/or FMLA leave; (4) an illegal medical separation policy that permitted the separation of full-time faculty without consideration or evaluation of their entitlement to a disability-based reasonable accommodation; and (5) illegal provision of unprotected “general accommodations” of fully remote work instead of protected disability-based accommodations, among other challenged practices alleged to violate the Rehabilitation Act, FMLA, and/or New York City Human Rights Law (“NYCHRL”).

The class action complaint alleges that all, or almost all, CUNY faculty taught fully remotely during the COVID-19 pandemic, from mid-March 2020 through the spring 2021 semester (approximately three academic semesters). The class action complaint additionally alleges that, for the spring 2022 semester, CUNY announced a 70/30 In-Person/Remote policy requiring 70% in-person courses and 30% remote courses, including that, “[a]side from unusual circumstances, all full-time faculty members should teach at least one in-person course on campus.”  Plaintiff alleges that Defendants repeatedly illegally denied Plaintiff’s, and a class of full-time faculty members’, requests for mental health disability-based fully remote work accommodations because of the 70/30 In-Person/Remote policy.

The class action complaint further alleges that, after initially filing pretextual and/or retaliatory disciplinary charges against Plaintiff, NYC, CUNY, and/or QCC applied their medical separation policy to medically separate Plaintiff in furtherance of their retaliation and/or discrimination.  The class action complaint alleges that they did so by circularly relying on the very mental health disabilities that Plaintiff had sought a fully remote work accommodation and FMLA leave to address, as the primary basis for Plaintiff’s medical separation. The class action complaint alleges that this medical separation policy was a policy, practice, and/or standard operating procedure of NYC, CUNY, and/or QCC of failure to accommodate disabilities, retaliation for requesting a fully remote work accommodations and/or FMLA leave, and interference with disability and/or FMLA rights.

The class action complaint additionally alleges disparate impact violations, violations of FMLA notice rights, and Rehabilitation Act medical inquiry violations.

The fifteen-count class action complaint seeks, from some or all Defendants, back pay, front pay and/or reinstatement, compensatory damages, nominal damages, actual damages, liquidated damages, declaratory relief, injunctive relief, as well as punitive damages against the QCC individual defendants sued in their individual capacities.

Plaintiff’s requested class-wide injunctive relief seeks an injunction: (1) prospectively exempting disability-based fully remote work requests from the 70/30 In-Person/Remote Policy; (2) requiring the creation and funding of an independent office and/or ombudsman to objectively evaluate all disability-based remote work requests and FMLA leave requests; (3) requiring the re-evaluation of all disability-based remote work requests and FMLA leave requests within the last three years by an independent office and/or ombudsman; (4) reinstatement of all class members terminated or medically separated because of an illegal denial of a disability-based fully remote work accommodation and/or FMLA leave request; and (5) reclassification of time illegally categorized as an unauthorized absence as a protected authorized absence, under the Rehabilitation Act, FMLA and/or NYCHRL.

The case is Ramjerdi v. The City of New York, et al., No. 1:24-cv-03380-NGG-RML and is before U.S. District Judge Nicholas G. Garaufis and Magistrate Judge Robert M. Levy in the United States District Court for the Eastern District of New York.

Press release is available here. Media Contact: Cyrus E. Dugger, The Dugger Law Firm, PLLC - (646) 560-3208 - cd@theduggerlawfirm.com.

Court Grants Plaintiff’s Motion to Compel in Race Discrimination Case Against 643 Broadway Holdings LLC d/b/a Bleecker Kitchen & Co. and Joshua Berkowitz

On December 10, 2011, Michael S. Douglas, Jr. filed a race discrimination complaint in Manhattan Supreme Court against 643 Broadway Holdings LLC(d/b/a Bleecker Kitchen & Co.) and co-owner Joshua Berkowitz.   

The complaint alleges that Berkowitz racially harassed former Bleecker Kitchen & Co. restaurant manager Douglas during his employment with Bleecker.  The complaint further alleges that Berkowitz was not aware that Douglas, who is Filipino and African-American, was black, when Berkowitz, using coded words, counseled Mr. Douglas against hiring black servers.   

On March 2, 2016, the Honorable Eileen A. Rakower ordered Defendants to produce all of the hard copy and electronic documents sought in Plaintiff’s motion to compel, with the exception of documents related to Gold Bar or Defendants’ assets.

The Court further ordered Defendants to provide an affidavit from someone with knowledge of the search conducted concerning requests for which Defendants claim documents do not exist, or are not in Defendants', possession, custody, or control.

The Court’s Order is available here.

The case is Douglas v. 643 Broadway Holdings LLC d/b/a Bleecker Kitchen & Co. et al., Index No. 162179

Mr. Douglas is represented by Cyrus E. Dugger of the Dugger Law Firm, PLLC and James Halter and Asa Smith of Liddle & Robinson L.L.P.

The Dugger Law Firm, PLLC and Liddle & Robinson L.L.P. File Race Discrimination Claim Against 643 Broadway Holdings LLC (d/b/a Bleecker Kitchen & Co.) and Joshua Berkowitz

On December 10, 2011, Michael S. Douglas, Jr. filed a race discrimination complaint in Manhattan Supreme Court against 643 Broadway Holdings LLC  (d/b/a Bleecker Kitchen & Co.) and co-owner Joshua Berkowitz.  The complaint alleges that Berkowitz racially harassed former Bleecker Kitchen & Co. restaurant manager Douglas during his employment with Bleecker.  The complaint further alleges that Berkowitz was not aware that Douglas, who is Filipino and African-American, was black, when Berkowitz, using coded words, counseled Mr. Douglas against hiring black servers.  Mr. Douglas is represented by Cyrus E. Dugger of the Dugger Law Firm, PLLC and Michael Grenert of Liddle & Robinson L.L.P.

NYC Sued for Inaccessible Sidewalks For Visually and Physically Disabled

Earlier this week Disability Rights Advocates filed a class action suit against New York City regarding the inaccessibility of NYC streets to the disabled:

"In a complaint received by the United States District Court for the Southern District of New York, the group, Disability Rights Advocates, said the class-action suit aimed to “end decades of civil rights violations” in what is ‘arguably, for non-disabled residents, the most pedestrian-friendly large city in the United States.’

Sidewalks and pedestrian routes, the group said, are often inaccessible for blind New Yorkers and people who use wheelchairs, walkers and other travel aids. Among the dangers, the group described curbs without ramps at pedestrian crossings, midblock barriers like raised concrete, and broken surfaces that can imperil wheelchair and cane users.

The focus of the suit is Lower Manhattan, below 14th Street, where problems are pronounced, according to the complaint.” (link)

The lawsuit, which alleges violation of both federal and city law, seeks to certify a class action of “all persons with mobility and/or vision disabilities who have been and are being denied the benefits and advantages of New York City's pedestrian rights-of-way in Lower Manhattan because of Defendants' continuing failure to design, construct, and maintain pedestrian rights-of-way that are accessible to persons with mobility and/or vision disabilities.”

 The complaint seeks only declaratory and injunctive relief – including that the City:

a. Ensure that pedestrian rights-of-way, when viewed in their entirety, are readily accessible and usable by persons with vision and mobility impairments.

b. Undertake prompt remedial measures to eliminate physical barriers to access to pedestrian rights-of-way to make such facilities accessible to Plaintiffs in accordance with federal accessibility standards.

 c. Maintain any existing accessible features of Defendants' pedestrian rights-of-way so that such features provide full usability for persons with vision and mobility impairments.

 d. Ensure that all future new construction and alterations to sidewalks and streets results in the provision of pedestrian rights-of-way that are fully compliant with federal accessibility standards;

 e. Prepare a complete Self-Evaluation and a complete and publicly available Transition Plan regarding the accessibility of existing pedestrian rights-of-way in compliance with Title II of the ADA and Section 504.

 Some interesting observations from the complaint:

a)  “more than 600,000 New Yorkers with mobility and vision disabilities continue to be excluded from the pedestrian culture that is so critical to community life in New York City because many of the City's sidewalks and pedestrian routes are too dangerous for use by persons with disabilities.”  (emphasis added).

b)    “A recent survey conducted by the Center for Independence of the Disabled ("CIDNY") of 1066 curbs in Lower Manhattan found that more than seventy-five percent of the corners surveyed had barriers presenting safety hazards to persons with mobility and vision impairments, including nearly a quarter of the curbs surveyed having no curb ramps whatsoever.” (emphasis added)

Lastly, the complaint notes that the suit was filed only after the De Blasio administration “refused to provide meaningful access to their sidewalks and pedestrian routes by making improvements to curb ramps and sidewalks over a reasonable period of time” or “participate in structured settlement negotiations to discuss these proposed improvements.”

It will be interesting to see how the professedly liberal De Blasio administration handles this litigation in the long term. 

Notably, shortly before De Blasio took office, and after several years of litigation, the Bloomberg administration finally settled a class action lawsuit concerning the accessibility of NYC taxicabs to the disabled.

The De Blasio administration obviously cannot waive a magic wand and fix every sidewalk curb in a day.  But why not enter into cooperative negotiations to formulate a reasonable plan to address this problem instead of wasting money, time, and resources defending a lawsuit - only to eventually settle anyways years later? Moreover, this suit concerns the disability rights statutes that advance the progressive platform and governance the administration has repeatedly stated it is focused on making a reality in NYC?

There are a lot of potential supporters, and ultimately votes, available from the visually or physically impaired NYC community that would also make these efforts politically worthwhile - that is if these voters can safely get to the voting booth on a NYC street.

Intro to the NYCHRL: Your Right to a Non-Discriminatory Lunch

New York City is undeniably more liberal than most other places in America.  So it should be no surprise that it has one of the most protective anti-discrimination statutes in the country. 

In contrast, federal discrimination claims often face difficult hurdles.  There are countless situations where behavior that is objectively discriminatory, would not make it far as a discrimination claim under only federal law.

The result is that clearly discriminatory conduct goes unpunished, not because it is not discrimination, but because discrimination law has a standard, either judge made, or based on the text of the statute, that is very conservative - demanding at times incredibly exacting evidentiary support. 

But what about situations that are clearly discriminatory, but where there is a “smart discriminator”?  A discriminator who fails to leave a helpful document trail clearly showing the reason they did what they did was based on discrimination or retaliation.

Or what about instances that are discriminatory, but where the courts are be hesitant to find discriminatory because the conduct is viewed by some merely as passing slights?

Enter stage left – the New York City Human Rights Law, which applies less demanding standards for finding conduct to be discriminatory compared to its federal and state counterparts.

In fact, there are some pretty striking examples where the NYC law supported a discrimination lawsuit that might not have made it far in court under only federal law.

Here is one:

At an administrative hearing, a restaurant, a place of public accommodation under Administrative Code section 8-102(9), was found to have engaged in discrimination against an African American customer by asking her to pay for her food before receiving it, while three non-African American customers were not required to pay for their food until receiving their food orders. Respondents failed to demonstrate a legitimate, non-discriminatory motive for treating the African American customer differently.

Annotated NYC Administrative Code 8-107

Importantly, just this one instance was enough to find the restaurant liable for discrimination.

The restaurant was ultimately fined $5,000.

Amazingly, the restaurant did this to a “tester” from the New York City Commission on Human Rights – i.e. an employee of the Commission. 

 You can read the final decision and previous history here.

Come back for additional case studies demonstrating the distinction between federal and NYCHRL discrimination standards.

NYC Deadline to Provide Notice of Pregnancy Rights Expires Tomorrow

In 2013 NYC passed an amendment to the New York City Human Rights law broadening protections for pregnant workers.  The amendment requires employers to provide pregnant employees with reasonable accommodations at work.

Before passage of the amendment, pregnant employees were often not entitled to any accommodations because they did not meet the definition of "disabled" under disability discrimination laws. 

As explained in the preamble to the amendment:

"The Council finds that pregnant women are vulnerable to discrimination in the workplace in New York City.  For example, there are reports that women who request an accommodation that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth, are being removed from their positions, placed on unpaid leave, or fired.  It is the intent of the Council to combat this form of discrimination by requiring employers to provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth.  Such a reasonable accommodation may include bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor, among other things . . . ." (link)

The new law, which applies to employers with four or more employees, became effective January 30, 2014.  In addition, as of that date, NYC employers (with four or more employees) were required to provide a notice of these new protections to all new hires. 

The deadline to provide the notice to current employees expires tomorrow. 

Employees - if you have not received this notice your employer may be in violation of the New York City Human Rights Law.

Employers - if you have not sent this notice out yet - you might want to get started on that . . . right now.

The notice is below and an overview of the amendment is available here.