In Milien v. City of New York et al, 20-CV-480 (MKB), 2023 WL 6050119 (E.D.N.Y. Sept. 15, 2023), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s race discrimination claims, predicated on the alleged denial of overtime opportunities.
As to Title VII of the Civil Rights Act of 1964, the court explained:
Drawing all reasonable inferences in Plaintiff’s favor, Plaintiff has met his burden of establishing an inference of discrimination based on the denial of overtime work opportunities. As discussed above, Plaintiff’s overtime hours at Q129 differed markedly during the same period from the overtime hours of his coworkers of different races. In addition, deposition testimony reveals that overtime assignments were awarded in a discretionary manner which a jury could reasonably determine was afflicted by the racial prejudice Plaintiff alleges. The CBA states that overtime opportunities are open “to all employees within the classification in rotation by seniority,” and Defendants similarly assert that “[o]vertime opportunities are assigned to NYCSSS employees based on right of refusal by seniority”. However, Lettieri testified that employees “work it out” themselves, and Plaintiff claims that “Lettieri did not alternate working weekends between the other custodial staff,” and told Plaintiff when confronted about the overtime assignment policy “that ‘this is his school’ and if [Plaintiff] did not like his rules, then [Plaintiff] should leave”. The disparity between Plaintiff’s overtime hours and the overtime hours of his coworkers — who, like Plaintiff, were cleaners — together with Lettieri’s discretion in the assignment of overtime opportunities, when considered in the context of his allegedly racist remark towards Plaintiff, (see Pl.’s Dep. 111:5–13 (claiming that Lettieri referred to Plaintiff as “boy”)), are sufficient to give rise to an inference of discriminatory intent in the assignment of overtime hours.
The Court finds that there are genuine material issues of fact regarding Plaintiff’s overtime assignments which preclude summary judgment. While Defendants claim that Plaintiff was assigned overtime work pursuant to the policy outlined in the CBA and at a rate on par with his coworkers, there is conflicting evidence in the record concerning these claims. Lettieri testified both that overtime assignments were made according to seniority — which aligns with the overtime assignment policy outlined in the CBA — and that a more ad hoc system existed allowing employees to “work it out” themselves. In light of the conflicting evidence concerning the assignment of overtime opportunities, the gap between Plaintiff’s overtime hours and his coworkers’ overtime hours — a gap of approximately 217 hours between Plaintiff and D’Amico and 280 hours between Plaintiff and Mlodozeniec — and Plaintiff’s allegations of Lettieri’s racial discrimination, a reasonable jury could determine that Plaintiff suffered from impermissible race discrimination in the allocation of overtime work. Accordingly, the Court denies Defendants’ summary judgment motion with respect to Plaintiff’s Title VII race discrimination claim concerning the assignment of overtime work.
Having determined that plaintiff’s Title VII claim survives summary judgment, his claim asserted under the comparatively lenient New York City Human Rights Law may likewise proceed.