Hill v. City of New York (136 F. Supp. 3d 304, 2015)

MEMORANDUM & ORDER

PAMELA K. CHEN, District Judge:

The named Plaintiffs and members of the , proposed classes (“Plaintiffs”) are a group of minority individuals employed by Defendant New York City (the “City”) to answer and direct public calls to the City’s 911 emergency response system. (Dkt, 77 (“Am. Compl.”) ¶ Í2.) Plaintiffs bring this action against the City; Michael Bloom-berg as Mayor of the City and Raymond Kelly as New York Police Department (“NYPD”) Commissioner, both in their official capacities; and Richard F. Napoli-tano (“Napolitano”), Charles P. Dowd (“Dowd”), Michael V. Polito (“Polito”), Lju-bomir Belusic (“Belusic”), Francis Kelly (“Kelly”), Donald Church (“Church”), and David Lichtenstein (“Lichtenstein”), all in their official and individual capacities (collectively, “City Defendants”), primarily asserting that the City Defendants discriminated against Plaintiffs on the basis of race, in violation of 42 U.S.C. § 1981 (“Section or § 1981”) and § 1983 (“Section or § 1983”), and the New York State and City Human Rights Laws (respectively, “NYSHRL” and “NYRCHRL”). (Am. Compl. ¶ 1.)

. .Plaintiffs assert the following claims against the City Defendants: (1) violation of §§ 1981 and 1983 through a pattern of discriminatory policies and practices principally relating to mandatory overtime and leave usage; (2) violation of the Family and Medical Leave Act (“FMLA”) through interference with, and retaliation for, Plaintiffs’ exercise of FMLA rights; (3) retaliation against Plaintiffs for protected public speech, in violation of the First Amendment; (4) violation of New York Labor Law regarding required meal breaks; and (5) breach of the City’s collective bargaining agreement (“CBA”) with Plaintiffs’ union, Defendant Local 1459, District Council 37, AFSCME, AFL-CIO (“DC 37”), as well as arbitration and settlement agreements. (Am. Compl. ¶¶ 1-5, 267.) Plaintiffs also assert two claims against DC 37 for violating its duty of fair representation and for discriminating against Plaintiffs on the basis of race in violation of § 1981 by acquiescing in the City’s discriminatory policies. (Id. ¶¶3, 303, 308.)

Three motions are currently pending before the Court. The City Defendants move to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) for failure to state a cause of action. (Dkt. 91.) DC 37 moves to dismiss Plaintiffs’ Section 1981 claim for failure to state a claim of racial discrimination. (Dkt. 89.) Plaintiffs move for certification of two classes pursuant to FRCP 23(b)(a) and (b)(2) for liability and injunc-tive relief. (Dkts. 104; 105 at 2-5.) For the reasons set forth below, Defendants’ motions to dismiss are granted in part and denied in part, and Plaintiffs’ motion for certification is granted.

BACKGROUND

The following facts are taken from the Amended Complaint and exhibits, arid are taken as true and construed favorably to Plaintiffs, for purposes of deciding the motions to dismiss.

I. The Parties

Plaintiffs are employed in the NYPD Communications Section as Police Communications Technicians (“PCTs”) and Supervisor Police Communication Technicians (“SPCTs,” collectively, “911 Operators”). (Am. Compl. ¶¶ 12-13.) Their responsibilities include answering and directing public emergency calls to the City’s 911 response system so that the appropriate police, fire, or emergency resources can be dispatched. (Id, ¶¶ 13,100.) Both SPCTs and PCTs are overseen and managed by Principal -Police Communication Technicians (“PPCTs”). (Id. ¶ 20.)

As of the date of the Amended Complaint, the City employed 1,200 PCTs and 91 SPCTs in the NYPD Communications Section as part of the City’s overall emergency call and response system, which consisted ’ of a total of approximately 1,800 dispatchers. (Id, ¶¶ 14, 17.) Other dispatcher units existed within the City’s Fire Department (“FDNY”), Department of Sanitation (“DOS”), and Office of Emergency Medical Services (“EMS”). (Id. ¶¶ 258-59.) The City stationed most of the City’s dispatchers, including the 911 Operators, at the Public Safety Answering Center (“PSAC”) át 11 MetroTech Brooklyn. {Id. ¶¶ 15, 262-64.) Some 911 Operators were stationed at One' Police Plaza. (M ¶ 17.) ■

Over 95% of 911 Operators are minorities. (Id. ¶257.) Seven of the eight named Plaintiffs — Cynthia Hill (“Hill”), Gail Williams (“Williams”), Denise Inman (“Inman”), Vickie Gordon (“Gordon”), Tau-ra Pate (“Pate”), Ellen Ennis (“Ennis”), and Andrea Holly “Holly”) — are African-American women. (Id. ¶¶22, 26, 30, 34, 42, 46.) The eighth named Plaintiff, Rolando Lopez (“Lopez”), is a Hispanic male of Puerto Rican ancestry. (Id. ¶ 38.)

Plaintiffs name several individual Defendants, all of whom are white males. (Id. ¶¶ 56, 59, 63, 66, 70, 73, 76, 79, 82.) Plaintiffs are pursuing official capacity claims against the Mayor as the chief policy-making official and the NYPD Commissioner as the official responsible for developing and implementing policies of the NYPD, and for training and supervising NYPD employees. (Id. ¶¶ 56-57, 60-62.) According to the Amended Complaint, the City’s Executive branch and Deputy Mayors, the Mayor’s Office of Operations, and the Office of Citywide Emergency Communications “centrally determine and oversee all major and strategic emergency communications policy and implementation for the City[.]” (Id. ¶ 14.)

Plaintiffs also name several individual Defendants in the NYPD Communications Section in their official and personal capacities. At all times relevant to this action, Napolitano was the Inspector and Deputy Inspector in charge of the section, and Dowd was a section Chief. (Id. ¶¶ 63, 66.) Plaintiffs allege that Naplitano and Dowd were responsible for developing, implementing, and enforcing employment policies within the NYPD Communications Section. (Id. ¶¶64, 67.) Kelly was a PPCT and section Platoon Commander who directly supervised other PPCTs. (Id. ¶¶ 20-21, 76.) Polito, Belusic, and Church were section Captains who supervised PPCTs. (Id. ¶¶ 20-21, 70, 73, 79.) Plaintiffs allege that Dowd, Polito, Belusic, Kelly, and Church were responsible for developing and implementing personnel policies, and for imposing and enforcing disciplinary measures against 911 Operators. (Id. ¶¶ 68, 71, 77, 80.)

The Amended Complaint additionally names Lichtenstein in his official and personal capacity. At all relevant times, Lichtenstein was a Deputy Chief Surgeon in the Medical Division of the NYPD. (Id. ¶82.) Plaintiffs assert that Lichtenstein was responsible for conducting examinations to determine if 911 Operators who sought reasonable accommodations for disabilities were medically fit for duty under New York Civil Service Law § 72 (“§ 72”). (Am. Compl. ¶ 83.)

Defendant DC 37 is a labor organization that represents municipal employees, including 911 Operators, and serves as the bargaining representative for these employees with the City. (Id. ¶¶ 86-88.)

II. Plaintiffs’ Factual Allegations Regarding the City Defendants’ Policies and Practices

Plaintiffs recite a litany of policies and practices that the City Defendants imposed on the 911 Operators as part of the alleged pattern of racial discrimination and hostility toward the group. These policies and practices, Plaintiffs maintain, were not imposed on the predominantly non-minority dispatcher units of the FDNY, DOS, or EMS. (Id. ¶¶ 258-59, 264-65, 267.) Plaintiffs allege that FDNY and EMS dispatchers serve the same function as 911 Operators, in that they also answer emergency calls, provide intake of caller information, and dispatch emergency response units, and that 911 Operators often work in tandem with these other dispatchers in response to emergencies, sometimes jointly handling calls. (Id. ¶¶ 259-61.) According to Plaintiffs, most 911 Operators and FDNY dispatchers work on the same floor of the “fully-integrated” PSAC. (Id. ¶¶ 259, 262-64.) Plaintiffs further assert that none of the challenged policies are imposed on other non-minority NYPD employees, including Police Administrative Aids (“PAA”). (Id. ¶¶ 289, 266.) The following summarizes the policies that Plaintiffs allege are indicative of a discriminatory pattern and practice by the City Defendants.

A. Overtime, Scheduling, and Breaks

The Amended Complaint alleges that the City Defendants instituted several policies starting in May 2013 that overworked 911 Operators without regard for their health and safety. 911 Operators were required to work several double-shifts of undefined lengths, often consecutively, without meal or rest breaks. (Id. ¶¶ 111, 211-14.) Specifically, between May and July 2013, the NYPD mandated that 911 Operators work double-shifts of eight hours each, three times a week. (Id. ¶ 103.) Seven of the named Plaintiffs worked 16-hour tours three times a week in accordance with this policy. (Id. ¶ 106.) Since May 29, 2013, the NYPD has maintained a practice of relieving 911 Operators at 2:00 a.m. after a mandatory double-shift and requiring them to return for their next shift the same day at 8:00 a.m. (Id. ¶ 104.) On multiple occasions, seven of the named Plaintiffs were relieved from a double-shift only to be required to return hours later. (Id. ¶ 105.) Since July'2013, the NYPD required 911 Operators to work two 12-hour tours weekly “as a minimum amount of overtime” until relieved from duty. (Id. ¶ 103.) Pursuant to these policies, seven of the named' Plaintiffs were required to work a minimum of two 12-hour overtime shifts each week, with additional overtime and tours as required. (Id. ¶ 106.)

911 Operators who refused, or did not complete, mandátory overtime were subjected to discipline. On or about July 7, 2013, Church threatened to dock three vacation days from a group of 911 Operators, including Pate, if they did not work a fifth consecutive 16-hour shift. (Id. ¶¶ 143-46.) PCTs assigned to work day shifts were switched to midnight shifts because they failed, or refused, to complete mandatory overtime. (Id. ¶ 137.) In addition, 911 Operators, including seven of the named Plaintiffs, were required to continue answering and dispatching calls during meal breaks. (Id. ¶¶ 115-16, 214.) Plaintiffs assert that these policies were driven by discriminatory animus toward the 911 Operators and as punishment for their use of sick and FMLA leave.' (Id. ¶¶ 107-08, 113.)

B. Sick Leave

The NYPD has a long-standing history, since around 1999, of restricting sick leave for 911 Operators. (Id. ¶ 121.) Pursuant to the CBA, 911 Operators accrued one day of sick leave each month (12 days annually), and were permitted to use three days of their sick leave balances to care for ill family members. (Id. ¶ 12Ó, see id. Exs. A (CBA) at 11-12, C (“Arbitration Decision”) at 2, 4.) In or around May 2006, DC 37 filed a grievance with' the Board of Collective Bargaining (the “Board”) ■against the City and NYPD on behalf of Hill and another individual for unilaterally changing procedures regarding the required documentation to use leave. (Am. Compl. ¶ 122.) The Board found that the City and NYPD’s actions violated the duty to bargain with DC 37 before imposing sick leave policy changes. (Id. ¶ 123.) After the City failed to comply with the Board’s decision by canceling sick leave for 911 Operators, DC 37 filed for arbitration. (Am. Compl. ¶ 124; Arbitration Decision at 1.) On August 2, 2008, the Board found that the City had violated the CBA by cancelling sick leave, and directed the City to cease and desist. (Am. Compl. ¶¶ 125-27; Arbitration Decision at 6-7.)

Plaintiffs allege that notwithstanding the Arbitration Decision, the City Defendants have “frequently and arbitrarily” cancelled sick leave since 2012. (Am. Compl. ¶ 107.) In May 2013, the City Defendants began suspending sick leave “on a regular basis” for 911 Operators. (Id. ¶¶ 108-09,129-30.) Between May and August 2013, sick leave was “consistently, cancelled” every Wednesday and reinstated the following Monday. (Id. ¶ 131.) The City Defendants also canceled sick leave for ten consecutive days from June 26, 2013 to July 4, 2013. (Id. ¶ 132.) Plaintiffs allege that DC 37 was aware of the City Defendants’ recurrent cancellations of sick leave, but did not act meaningfully to protect the 911 Operators. (Id. ¶¶ 149, 240-51.)

Plaintiffs also allege that the City Defendants maintained a pattern of intimidation and retaliation with respect to the 911 Operators’ use and attempted use of sick leave. (Id. ¶¶ 107-09.) 911 Operators who requested sick leave during a period of blanket sick leave cancellation were noted as “attempted sick.” (Id. ¶ 134.) 911 Operators who attempted to use, or appeal the denial of, sick leave requests were threatened with discipline and received unfavorable evaluations, including comments that the operator was “not a team player.” (Id. ¶¶ 138-140.) Additionally, 911 Operators who used sick leave at a time they were scheduled, to work mandatory overtime were marked absent without leave (“AWOL”). (Id, ¶ 133.) City Defendants also threatened to change tours and squads of operators who took sick leave, and changed operators’ day tours to midnight tours in response to sick leave use. (Id. ¶ 137.)

C, FMLA Leave

In June 2006, a class of 911 Operators, with Hill as one of the named representatives, brought a federal action against Defendants the City, Mayor, and NYPD Commissioner to challenge policies that interfered with the plaintiffs’ FMLA rights, and retaliated against employees who sought to exercise their FMLA rights. (Id. ¶¶ 156-57, Ex. B-1 (Stip. of Settlement filed in Rodriguez v. New York City, 04 CV 3049 (“Rodriguez Settlement”)).) On December 19, 2009, the district court approved the parties’ settlement, pursuant to which the NYPD agreed, inter alia, (1) not to cancel or delay FMLA leave for 911 Operators, (2) to exclude consideration of approved FMLA absences from performance evaluations, and (3) to allow 911 Operators to use FMLA leave during mandatory overtime hours. (Am. Compl. ¶¶ 117, 158-59, Ex. B-2; Rodriguez Settlement ¶ 5.) Plaintiffs assert in this case that the City Defendants have since failed to comply with the Rodriguez Settlement, as well as their general .obligations under the FMLA. (Am. Compl. ¶ 160.)

Plaintiffs allege that the City Defendants have followed a punitive approach with respect to Plaintiffs’ exercise of their FMLA rights, and that no other City dispatcher unit has been subject to the same FMLA policies. (Id. ¶¶ 108,, 110, 160-62, 197.) On March 23, 2013, Napolitano required 911 Operators to direct all FMLA leave requests to the NYPD Disciplinary Unit’s..dedicated FMLA number, rather than the Platoon Commander’s Office, as required for general sick leave requests. (Id. ¶ 193.) Napolitano later renamed the Disciplinary • Unit the Compliance Unit. (Id. ¶195.) On or, about September 20, 2013, a NYPD memorandum announced a new FMLA Compliance Unit at One Police Plaza to “reduce FMLA abuse” among 911 Operators. (Id. ¶ 196.)

In April 2013, Belusic circulated a list of 911 Operators whose ability to work voluntary overtime was revoked due to having a “high absentee rate,” regardless of whether the operator were absent due to qualified FMLA leave. (Id. ¶ 164.) Belusic also announced that the Disciplinary Unit would only accept requests for emergent FMLA leave if made within 30 minutes of the start of the shift for which the operator was requesting leave. Leave requests' made before the 30-minute window were either not accepted, with the operator being told to call back, or denied. (Id. ¶ 165.) On several occasions, Ennis attempted to request FMLA leave hours before beginning her shift and was told to call back to receive approval. (Id. ¶¶ 171— 72.) The Amended Complaint provides details of three other proposed class members who had similar experiences. (Id. ¶¶ 167-70.)

Beginning July 27, 2013, Kelly instituted a policy to compile and review lists of 911 Operators who 'missed a mandatory overtime shift because of sick or FMLA leave, so that they could “make up” the missed overtime upon returning from leave. (Id. ¶¶ 147-48, 174.) These operators were given a written order to work overtime the following day regardless of whether their squad was scheduled for overtime, and regardless of whether the “make up” shift fell on the operator’s regular day off. (Id. ¶¶ 148,174.) An operator’s failure to comply with this requirement resulted in .disciplinary charges. (Id. ¶ 174.) On various occasions between May and the fall of 2013, Ennis was required to work a missed overtime shift immediately after she had returned from FMLA leave. (Id. ¶¶ 175-76.) The Amended Complaint also specifies another instance, on July 27, 2013, when a proposed class member was ordered to perform mandatory overtime the day she returned from FMLA leave. (Id. 11177.)

Plaintiffs also allege that the City Defendants intentionally miscalculated the number of FMLA hours used by 911 Operators to more quickly deplete the number of available FMLA hours, thus forcing 911 Operators to “take unpaid sick leave instead of'using FMLA leave.”- (Id. ¶¶ 178-79.) On various occasions, Ennis requested and used a few hours of FMLA leave, but was told that a full seven-hour day was deducted from her FMLA hours. (Id. ¶¶ 185-88.) The Amended Complaint also details a similar experience of one proposed class member. (Id. ¶¶ 181-84.) Additionally, Plaintiffs allege that the City Defendants had a practice of miscalculating hours worked by an Operator to qualify for FMLA leave. , (Id. ¶¶ 202-03.) The City and NYPD delayed FMLA certification approval by up to four months, and required excessive and repeated medical documentation. (Id. ¶¶ 189, 204-07.) The Amended Complaint includes examples of two proposed class members who experienced such delays. (Id. ¶¶ 190-92.) Plaintiffs also claim that the City Defendants investigated FMLA use without a good faith basis, including interrogating 911 Operators and calling physicians for medical information. (Id. ¶¶ 198-201.)

D. Reasonable Accommodation Requests

Plaintiffs allege that the City Defendants discouraged and retaliated against 911 Operators who requested to limit their hours as a reasonable accommodation under the ADA. -Beginning in May 2013, 911 Operators who requested reasonable accommodations were threatened with unpaid leave, “given undesirable secretarial work,” and/or were subjected to “sham” medical examinations and declared unfit for duty. (Id. ¶¶ 112, 208, 216-17; Dkt. 94 at 7.) More specifically, 911 Operators who presented a request from a private doctor seeking to limit their, .overtime hours were required to undergo a § 72 medical examination with physicians employed by the NYPD, including Lichtenstein. (Am, Compl. ¶[¶208, 218.) No examinations were actually performed, and instead operators were automatically declared unfit for duty. {Id. ¶¶208, 216.) Gordon, Ennis, and Inman each were denied a reasonable accommodation pursuant to this policy and practice. {Id. ¶¶ 222-27.) 911 Operators were also pressured to withdraw their requests for reasonable accommodations, in order to be reinstated to active duty. {Id, ¶ 221.)

E. Sign-Out Sheets

Plaintiffs allege that the City Defendants misused its sign-out policy.to keep 911 Operators at work without compensation. After clocking out from a shift, 911 Operators were forced to wait to sign out with a supervisor. Plaintiffs assert that supervisors were instructed to withhold sign-out sheets to impede 911 Operators’ ability to leave. (Id. ¶¶ 114, 151, 153-54.) The time spent waiting to sign out was not compensated, and .911 Operators who did hot sign out faced disciplinary action. (Id. ¶¶ 114, 150, 152.) DC 37 did not- grieve this issue. (Id. ¶ 155.)

F. Disciplinary Proceedings

According to Plaintiffs, the City Defendants subjected 911 Operators to disciplinary policies that were not imposed on non-minority -groups in the NYPD, such as PAAs. {Id. ¶¶ 229-39.) Beginning in 2011, any complaint against a 911 Operator initiated by a source outside the NYPD Communications Section was automatically considered substantiated. {Id. ¶232.) The NYPD also had a practice of permitting Communication Section captains who report violations by 911 Operators to also adjudicate those same claimed violations. {Id. . ¶ 235.) Minority 911 Operators received a disproportionately high number of Command Disciplines (“CDs”) for minor infractions. {Id. ¶¶ 233-34.) These CDs were treated as substantiated and used as a basis to deny seniority and to reject requests for more favorable work schedules. {Id. ¶ 233.) Further, Plaintiffs. allege that the NYPD disciplined 911 Operators under a NYPD Patrol Guide that was not provided to them, sent detectives to 911 Operators’ homes to investigate alleged infractions, and instituted disciplinary actions shortly before the expiration of the statute of limitations. {Id. ¶¶ 235-38.)

G. Defendant Polito’s Remarks

.The Amended Complaint -alleges that certain remarks by Polito suggest racial animus. In June 2013, after observing that only a few operators reported for duty, Polito commented “Don’t they know they are hiring at Pathmark?” {Id. ¶ 141.) On or about July 4, 2013, Hill heard Polito remark, “you people are useless”, referring to the 911 Operators. {Id. ¶ 142.)

H. Plaintiffs’ Complaints

Finally, Plaintiffs allege that the City Defendants undertook some of the above-described policies in retaliation for Plaintiffs’ public complaints about- their work conditions. Since May 2013, members of the class have repeatedly and publicly complained about the effect of their working- conditions on public safety -in rallies and other public forums, which has resulted in several press reports. (Id. ¶¶ 252-53.) Shortly thereafter, the City Defendants “developed and implemented additional unlawful employment policies and instituted disciplinary measures” to deter class members from further speaking to the public. (Id. ¶ 255.)

DISCUSSION

I. Defendants’ Motions to Dismiss

A. Legal Standard

Defendants bring their motions to dismiss pursuant to FRCP 12(b)(6) for failure to state a claim. To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must plead facts sufficient “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In evaluating a Rule 12(b)(6) motion, a district court must accept the factual- allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.2014); Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir.2006). A complaint that “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather, “[fjactual allegations must be enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A, complaint should be dismissed where a plaintiff has not “nudged [its] claims across the line from conceivable to plausible[.]” Id. at 570, 127 S.Ct. 1955,

B. Racial Discrimination Claims against the City and the Individual Defendants in their Officiáí Capacities

Plaintiffs first, second, and third causes of action allege that the City Defendants subjected the predominantly minority unit of 911 Operators to a pattern or practice of discriminatory treatment based on race in violation of §§ 1981 and 1983, NYSHRL, and NYCHRL. (Am. Compl. ¶¶ 257, 267, 276-87; see Dkt. 94 at 7.)

1. Sections 1981 and 1988

Section 1981 prohibits discrimination with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as employment. 42 U.S.C. § 1981(a); Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 224 (2d Cir.2004). To establish a violation of § 1981, a plaintiff must show that -(1) the plaintiff is a member of a racial minority; (2) the defendant intended to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in § 1981. Dasrath v. Stony Brook Univ. Med. Ctr., 12 CV 1484, 2014 WL 1779475, at *5 (E.D.N.Y. Feb. 27, 2014).. Liability may not be imposed under § 1981 absent proof of purposeful discrimination. Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982).

Section 1983 permits ah action against a “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”. 42 U.S.C. § 1983. Here, the deprivation alleged is one of racial discrimination in violation of federal law under: § 1981. Section 1983 “is not itself a source of substantive rights,” but merely provides “a method for vindicating federal rights elsewhere conferred,”. such as those conferred, by § 1981. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Hence, when the defendant sued for discrimination'in violation of §.1981 is a municipality or individual, sued in his official capacity, § 1983 supplies the exclusive remedy for violations of rights guaranteed under § 1981. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733-34, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); Bermudez v. City of New York, 783 F.Supp.2d 560, 576 (S.D.N.Y.2011).

Because Plaintiffs have brought their § 1981 claim under § 1983, they must show that the challenged acts were performed pursuant to a municipal policy or custom in order to hold liable the City or individual Defendants in their official capacity. See Patterson, 375 F.3d at 226-227 (citing Jett, 491 U.S. at 733-36, 109 S.Ct. 2702; Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)) (internal citations omitted)). To show a policy, custom, or practice, a plaintiff need not identify an express rule or regulation. See, e.g., Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992). It is sufficient to show, for example, that a discriminatory practice of municipal officials was so “persistent or widespread” as to constitute “a custom or usage with the force of law,” id. at 870-71 (internal quotation marks omitted), or that a discriminatory practice of subordinate employees was “so manifest as to .imply the constructive acquiescence of senior policy-making officials,” id. at 871. A policy, custom, or practice may also be inferred where “the-municipality so failed to train its employees as to display a deliberate indifference- to the constitutional rights of those within its jurisdiction.” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996) (internal quotation marks omitted). Liability of a municipal defendant or an individual sued in his official capacity under § 1981 and § 1983 cannot be premised on a theory of respondeat, superior. See, e.g., Jett, 491 U.S. at 733-36, 109 S.Ct. 2702.

2. NYSHRL and NYCHRL

The NYSHRL makes it unlawful for an “employer” to “discharge from employment” or “discriminate against [an] individual in compensation or in terms ... of. employment” on the basis of, among other things, an individual’s “age, race, creed, color, national origin, sexual orientation, military status, sex, [or] disability[.]” N.Y. Exec.- Law § 296. NYCHRL applies a more lenient standard for proving discrimination, pursuant to which the plaintiff need “only show that she was treated differently from others in a way that was more than trivial, insubstantial, or petty.” Dimitracopoulos v. City of New York, 26 F.Supp.3d 200, 216 (E.D.N.Y.2014). However, the NYCHRL is hot a “general civility code”, and a plaintiff must still show “that the conduct is caused by a discriminatory motive.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir.2013).

3. Pattern or Practice Disparate • Treatment Claims

Disparate treatment claims in the context of an employment discrimination case may be shown individually or by a pattern or practice suit brought by a “group of plaintiffs, entitled to be certified as a elass[.]” United States v. City of New York, 717 F.3d 72, 83 (2d Cir.2013); see Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 150 (2d Cir.2012) (pattern or practice framework is unavailable to nonclass plaintiffs). “Pattern-or-practice disparate treatment claims focus on allegations of widespread acts of intentional discrimination against individuals.” Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir.2001); see City of New York, 717 F.3d at 83; Henderson v. City of New York, 818 F.Supp.2d 573, 578, (E.D.N.Y.2011). Whereas an individual. claim requires intent to discriminate against one person, a pattern or practice claim requires a showing 'that (1) the alleged racial discrimination amounted to more than sporadic acts of discrimination,, but rather r the defendant’s “standard operating procedure” or the “regular rather than the unusual practice,” and (2) the discrimination was directed at a class of victims. City of New York, 717 F.3d at 83 (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)).

4. Framework'for Analyzing Discrimination Claims

Employment- discrimination claims under §§ 1981 and-1983, NYSHRL, and NYCHRL are governed by the same liability standard and analytical framework as Title VII disparate treatment claims. Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (§ 1981); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir.2000) (§ 1981); Torres v. Pisano, 116 F.3d 625, 629, (2d Cir.1997) (NYSHRL); Ortega v. New York City Off-Track Betting Corp., 97 CV 7582, 1999 WL 342353, at *3 n. 2 (S.D.N.Y May 24, 1999) (NYSHRL and NYCHRL). Under the Title VII analytical framework, the plaintiff-bears the initial burden of presenting a prima fade case of a policy, pattern, or practice of intentional discrimination against a protected group. City of New York, 717 F.3d at 83; Robinson, 267 F.3d at 158. A plaintiffs initial burden in a pattern or practice case is heavier than the burden in. an individual case in that the plaintiff must make a prima fade showing of a “pervasive policy of intentional discrimination" instead of only a single instance of discriminatory treatment. City of New York, 717 F.3d at 84. However, a plaintiffs burden is lighter “in that the plaintiff need not initially show discrimination against any particular present or prospective employee.” Id. Although “instances of discrimination against particular employees are relevant to show a policy of intentional discrimination, they are not required,” and “a statistical showing of disparate impact might suffice.” Id. (citing Hazelwood School District v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977)) (emphasis added). As with individual discrimination cases, á plaintiffs' initial burden in a pattern or practice case “is only to present a prima facie case that will support a rebuttable presumption of the ultimate fact in issue.” Id.

Once plaintiffs make their initial showing, the burden of production shifts to the employer “to rebut the presumption of discrimination.” Texas Dep’t of Comm. Aff. v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). A defendant may attempt to do so by, for instance, “demonstrating that the [plaintiffs’] ‘proof is either inaccurate or insignificant,’”. or offering affirmative evidence demonstrating the absence of an intent to discriminate. City of New York, 717 F.3d at 85-87 (quoting Teamsters, 431 U.S. at 360, 97 S.Ct. 1843); Robinson, 267 F.3d at 159.

If the defendant rebuts the presumption of discrimination, the trier of fact then must determine if the plaintiffs have proven “the ultimate fact” of whether the employer has “a policy of intentional discrimination.”. City of New York, 717 F.3d at 87. Pattern or practice discrimination claims generally are proven through evidence of a concrete policy and/or statistical evidence, along with anecdotal evidence of specific instances of discrimination. Robinson, 267 F.3d at 158-59, E.E.O.C. v. Bloomberg, 778 F.Supp.2d 458, 469 (S.D.N.Y.2011); Krish v. Connecticut Ear, Nose & Throat, Sinus & Allergy Specialists, P.C., 607 F.Supp.2d 324, 331 (D.Conn.2009); see Teamsters, 431 U.S. at 337-43, 97 S.Ct. 1843 (upholding finding that a pattern or practice of employment discrimination existed where plaintiffs offered statistical evidence buttressed by oral testimony of 40 specific instances of discrimination).

If a plaintiff succeeds in proving liability,' the case then proceeds to a remedial phase, at which the court may fashion class-wide injunctive relief. Robinson, 267 F.3d at 158-59. In addition, at this stage, individual plaintiffs are entitled to a rebut-table presumption of discrimination in litigating a particular adverse employment decision rendered by the defendant during the class period to obtain individual relief. M at 159; Bloomberg, 778 F.Supp.2d at 468-69.-

On a motion to dismiss, courts generally treat the elements of a prima facie case as -“an outline of what is necessary to render a plaintiffs employment discrimination claims for relief plausible” to survive a motion to dismiss. Barrett v. Forest Labs., Inc., 39 F.Supp.3d 407, 429 (S.D.N.Y.2014) (citing cases); see Littlejohn v. City of New York, 795 F.3d 297, 308 (2d Cir.2015) (the standard for prima facie case sufficiency is not a pleading requirement, but an evidentiary standard). Thus, for the Court to deem a set of factual allegations plausible, Plaintiffs must allege facts that allow the Court, in substance, to infer the essential elements of a prima facie case. See Knight v. State Univ. of New York at Stony Brook, 2014 WL 4639100, *5 (E.D.N.Y. Sept. 16, 2014).

5. Plaintiffs Have Sufficiently Alleged a Pattern or Practice Disparate Treatment Claim

The gravamen of Plaintiffs’ racial-discrimination claim is that the City Defendants, motivated by racial animus and hostility toward the predominantly minority 911 Operator work force, maintained a pattern or practice of. understaffing, allocating insufficient resources to the 911 call center, and declaring fictitious staffing emergencies, to the detriment of the health and safety of 911 Operators. (See, e.g., Am. .Compl. ¶ 267; Dkt. 94 at 7-8.) The City Defendants contend that Plaintiffs’ pattern or practice discrimination claim must be dismissed because the allegations are insufficient to raise an inference that the complained-of policies were motivated by race. (Dkt. 93 at 3-4, 6-8). At this early stage in the litigation, the Court cannot agree.

Initially, the Court finds that Plaintiffs’ allegations in the Amended Complaint provide fair notice of Plaintiffs’ pattern or practice disparate treatment claim and the grounds on which it rests. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Smerkiewicz v. Sorema N.A., 534

U.S. 506, 512, 122 S.Ct. 992, 152-L:Ed.2d 1 (2002); Boykin v. KeyCorp, 521 F,3d 202, 214 (2d Cir.2008). Plaintiffs allege an overarching pattern of intentional.over-work, under-staffing, and punitive measures against 911 Operators, motivated by racial animus, that is detrimental to their health and safety. (Am. Compl. ¶¶ 210-14, 265-67.) The Amended Complaint contains allegations that this, discriminatory pattern is manifested by the following practices: (1) requiring 911 Operators to work consecutive double-shifts and overtime shifts, (2) cancelling sick leave and retaliating for taking sick leave, (3) interfering with, and retaliating, for, the use of FMLA -leave, (4) subjecting.911 Operators who, seek to limit their overtime as a reasonable accommodation to sham § 72 medical examinations before declaring them unfit for duty and placing them on unpaid leave, (5) requiring 911. Operators- to work during meal breaks, and ,(6) imposing disciplinary measures on 911 Operators that were not imposed on other NYPD employees. (Id. ¶¶ 107-08, 210-14, 265-67; see Dkt. , 94 at 7.) Of course, not every complaint that alleges instances of discrimination necessarily states a pattern or practice claim. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (“If one allegation of specific discriminatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential compa-nywide class action.”). Plaintiffs must plausibly allege that the discriminatory incidents were more than isolated or sporadic, but are repeated, routine, or of a generalized nature. Ste. Marie v. E. R.R. Ass’n, 650 F.2d 395, 405 (2d Cir.1981). “[T]he definition of a pattern or practice is not capable of a precise .mathematical, formulation,” although “more than two acts will ordinarily be required.” Id. at 406 (reviewing verdict after trial) (citations omitted). A small number of confirmatory acts may. suffice to state a plausible pattern or practice claim if a complaint contains factual allegations supporting the inference that the defendant had adopted a policy of discrimination. Id.

Here, the Amended Complaint alleges facts regarding both the City Defendants’ formal announcement of the challenged policies and specific instances of these policies being enforced against Plaintiffs. For example, Plaintiffs assert that seven of the named Plaintiffs were required to work double eight-hour shifts three times a week and a minimum of two 12-hour overtime shifts each week since around May 2013. (Am. Compl. ¶ 106.) Plaintiffs specifically allege that Pate was required to work five consecutive 16-hour shifts. (Id. ¶ 146.) Plaintiffs also specify time periods in which sick leave was suspended for all 911 Operators. • (Id. ¶¶ 131-32.) The Amended Complaint also includes allegations that Belusic announced a policy limiting the time to request FMLA leave, and that Ennis and three other putative class members were not permitted to request FMLA leave as a result of that policy. (Id, ¶¶ 165,167-72.) Plaintiffs include specific allegations that Ennis and one other putative class member were required to perform mandatory overtime immediately upon returning from FMLA leave. (Id. ¶¶ 175, 177.) In addition, Plaintiffs allege that Gordon, Ennis, and Inman requested reasonable accommodations to limit their overtime hours, but that their requests were denied after sham § 72 medical examinations. (Id.’ ¶¶22-26.) The Court finds that, taken as a whole and viewed in the light most favorable to Plaintiffs, these allegations are sufficient to support an inference that the claimed overall discriminatory policy with respect to funding, structuring, and managing the .911 Operators was the City Defendants’ “standard operating procedure”. See U.S. v. E. River Hous. Corp., 90 F.Supp.3d 118, 156 (S.D.N.Y.2015); Barrett, 39 F.Supp.3d at 430.

The City Defendants’ contention that Plaintiffs fail to state a discrimination claim because they have not demonstrated an adverse employment action misapprehends the nature of Plaintiffs’ pattern or practice claims. (See Dkts. 92 at 12-15; 93 at 6-8.) Because analysis of pattern or practice claims at the initial liability phase focuses on whether plaintiffs have sufficiently alleged class-wide discriminatory policies, rather than allegations of individual discrimination, Plaintiffs need not show an adverse action as to particular employees to survive dismissal at this stage. City of New York, 717 F.3d at 84 (“instances of discrimination against particular employees ... are not required”). The existence of an adverse employment action becomes relevant at the remedial stage of the litigation. That is, if Plaintiffs succeed in showing that the City Defendants maintained a discriminatory pattern or practice, individual adverse employment decisions will be litigated at the remedial phase. Robinson, 267 F.3d at 158-59; Bloomberg, 778 F.Supp.2d at 468. In that regard, the Court observes that, at a minimum, the alleged blanket cancellation of sick leave is likely to satisfy the adverse action requirement. Cotterell v. Gilmore, 64 F.Supp.3d 406, 429 (E.D.N.Y.2014) (fact that plaintiff was prevented from using his sick leave “may constitute an ‘adverse employment action’ ”); Krishnapillai v. Donahoe, 09 CV 1022, 2013 WL 5423724, at *13 (E.D.N.Y. Sept. 26, 2013) (“[G]iven the significant effects of denying an employee the use of paid sick time or administrative leave during a medical absence, the court finds that this is sufficient to establish an adverse employment action.”); Delaney v. LaHood, 07CV 471, 2009 WL 3199687 at *20-22 (E.D.N.Y. Sept. 30, 2009) (denial of sick leave may constitute an “adverse employment action”).

The Court also finds that, contrary to Defendants’ assertions, Plaintiffs’ factual allegations are sufficient.to “give plausible support to a minimal inference of discriminatory motivation” to survive a motion to, dismiss. Littlejohn, 795 F.3d at 312. While a plaintiff must ultimately prove that a defendant acted with discriminatory intent,., at the initial stage of the litigation, “the plaintiff does not need substantial evidence” of such discriminatory intent. Id. at 311. Plaintiffs need only “sustain a minimal burden • of showing facts suggesting an inference of discriminatory, motivation[.]” Id. (emphasis in original); see Tolbert v. Smith, 790 F.3d 427, 438 (2d Cir.2015) (noting that direct “smoking gun” evidence of discriminatory motive is often lacking) (internal citations omitted); Whitehurst v. 230 Fifth, Inc., 998 F.Supp.2d 233, 245 (S.D.N.Y.2014) .(“A victim .of discrimination is ... seldom able to prove his or her claim by direct evidence and is usually constrained to; rely on the cumulative weight of circumstantial evidence.”). Statistical disparities, though an important way of proving pattern or practice claims and often necessary to survive to survive summary judgment, need not be pled in the complaint to survive a motion to dismiss, “if a complaint pleads other facts that allow the court to infer a pattern of discrimination.” Barrett, 39 F.Supp.3d at 430-32 (citing cases and noting-that “in most cases, plaintiffs will be unable to provide reliable statistics before they have access to discovery”); see E. River Hous. Corp., 90 F.Supp.3d at 159 (statistical analysis was likely not possible, and “not essential” at the motion to dismiss stage).

Here, Plaintiffs plausibly raise the requisite inference of discriminatory animus based on allegations that predominantly non-minority groups, such as the FDNY, DOS and EMS dispatchers, were not subject to the same discriminatory policies as the 911 Operators, and allegations about disparaging remarks made by Polito with respect to the 911 Operators. In the absence of direct evidence of discrimination, plaintiffs may present circumstantial evidence showing that they were treated less favorably than similarly situated colleagues outside of the plaintiffs’ protected class. See Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir.2014); Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir.2010); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000). The proposed comparator group must be “similarly situated in all material respects” to the plaintiffs. Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.1997). “An employee is similarly situated to co-employees if they were (1) ‘subject to' the same performance evaluation and discipline standards’ and (2) engaged in compa-rablé conduct.’ ” Ruiz, 609 F.3d at 493-94 (citing Graham, 230 F.3d at 40). The plaintiffs’ and comparator groups’ circumstances must bear a “reasonably close resemblance,” but need not be “identical.” Graham, 230 F.3d at 40. Ordinarily, whether employees are similarly situated “presents a question of fact rather than a legal question to be resolved on a motion to dismiss.” Brown, 756 F.3d at 230.

Plaintiffs’ claim is perhaps an atypical discrimination claim, in that it does not rely on a comparator group of “co-employees,” ie., non-minority 911 Operators. Plaintiffs, do not allege that non-minority 911 Operators received favorable treatment compared to minority 911 Operators. Rather, Plaintiffs allege that the City Defendants’ discriminatory intent is demonstrated by their imposition of policies and practices on the 95%-minority 911 Operators unit that were not imposed oh the City’s predominantly non-minority dispatcher units outside the NYPD, including the FDNY and EMS dispatcher units. (Am. Compl. ¶¶ 257-58.) Plaintiffs contend that the FDNY and EMS dispatcher units are appropriate comparator groups for the 911 Operators because the 911 Operators and FDNY and EMS. dispatchers work together and in tandem to perform the same function of answering public emergency calls and dispatching the appropriate emergency resources, sometimes conducting these calls jointly. (Id. ¶¶ 259-61, 264.) In addition, the 911 Operators and the City’s other dispatcher units are part of the PSAC, and work on the same floor in the same building as the other dispatcher units. (Id. ¶¶ 262-64.) According to Plaintiffs, the same “high-ranking City officials” manage, supervise, and regulate the PSÁC as. a single “fully-integrated” unit, and refer to the dispatchers .as a common group. . (Id. ¶¶ 14-16, 262-63.) As such, Plaintiffs allege that the FDNY and EMS dispatchers are subject to the same emergency call protocols and standards as 911 Operators in carrying out their duties. Drawing all reasonable inferences in Plaintiffs’ favor, the Court finds that the 911 Operators and the FDNY and EMS dispatchers are plausibly alleged to be similarly situated, for purposes of Plaintiffs’ pattern or practice disparate treatment claim.

Plaintiffs also contend that the City Defendants’ racial animus is demonstrated by two statements allegedly made by Polito, the NYPD Communications Section captain responsible for developing and implementing the section’s personnel policies, with respect to the 911 Operators: first,''“you people ahe useless,” and second, “Don’t they know they are hiring at Path-mark?”, suggesting that the minority 911 Operators should be working in a low-wage job at a grocery store. (Id. ¶¶ 141-42.) A plaintiff may demonstrate an inference of discrimination by showing that' an “employer criticized the plaintiffs performance in ethnically degrading terms” or “made invidious comments' about others in the employee’s protected group.” Whethers v. Nassau Health Care Corp., 956 F.Supp.2d 364, 379 (E.D.N.Y.2013). “The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that tee decision-maker' was motivated by assumptions or attitudes relating to the protected class.” Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 116 (2d Cir.2007) abrogated' on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

In contrast to Plaintiffs’ allegations regarding the FDNY and EMS dispatcher units, Plaintiffs have not alleged facts tending to show that DOS dispatchers or NYPD PAAs were similarly situated to the 911 Operators. (See Am. Compl. ¶¶ 239, 258, 266.) However, because Plaintiffs’ disparate treatment claim is being permitted to go forward, the Court will not limit the scope of discovery on this issue.

As the City Defendants correctly point out (Dkt. 92 at 19), “racially [ ] ambiguous, sporadic remarks” are not, without more, sufficient “evidence of race discrimination,” Big Apple Tire, Inc. v. Telesector Res. Grp., Inc., 476 F.Supp.2d 314, 327 (S.D.N.Y.2007), especially when “there is insufficient evidence ... that the question was laced with racial innuendo as opposed to” a neutral, commonplace effort to identify the group being addressed, Feacher v. Intercontinental Hotels Grp., 563 F.Supp.2d 389, 404 (N.D.N.Y.2008). However, phrases such as “‘you people’ ... ‘could just as easily be interpreted as [having] a negative racial connotation[,]” Wooten v. Reconstruction Home, Inc., 02 CV 01278, 2005 WL 1502149, at *11 (N.D.N.Y. June 24, 2005), particularly when Plaintiffs “provide ‘greater specificity as to the context of [such phrases’) usage,’ ” Whitehurst v. 230 Fifth, Inc., 998 F.Supp.2d 233, 253 (S.D.N.Y.2014) (quoting Griffin v. Ambika Corp., 103 F.Supp.2d 297, 314 (S.D.N.Y.2000)). See also Winston v. Verizon Servs. Corp., 633 F.Supp.2d 42, 53 (S.D.N.Y.2009) (in the context of a summary judgment motion, finding that statements such as, “you people cannot do anything right”, permit a reasonable jury to find discriminatory motivation); Wooten, 2005 WL 1502149, at *11 (concluding that use of “you people,” combined with evidence of discriminatory treatment that, began only after, the defendant discovered that the plaintiff was African-American, could provide a partial basis for drawing an inference of discrimination).

Plaintiffs argue - that Defendants Polito’s additional statement, “Don’t they know they are hiring at Pathmark?”, provides such context. The Court agrees that this comment could be interpreted to convey the view that the minority 911 Op: erators don’t belong in the NYPD Communications Section, and thus.lends more support to the racially hostile character of Polito’s other “you people” remark. See Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 253 (2d Cir.2014) (noting at summary judgment that a jury could find that comments regarding a “better fit” or “fitting in,” even when isolated, could be. enough to create a reasonable question.of fact for a jury with respect to discriminatory intent). While Polito’s remarks may be susceptible to a plausible innocuous interpretation, the allegation of racial animus is equally plausible. On a Rule 12(b)(6) motion, it is not the province of the Court to dismiss the Amended Complaint on the basis of the Court’s choice among plausible alternatives. See Anderson News, L.L.G. v. Am. Media, Inc., 680 F.3d 162, 190 (2d Cir.2012). (choosing between or among plausible interpretations of the evidence is a task for the factfinder); see also Kirkland v. Cablevision Sys., 760 F.3d 223, 226 (2d Cir.2014) (whether statements such as, “they don’t know how to police each other”, is probative of discriminatory intent is left for the jury to decide at trial).

Accordingly, the Court finds that based on their allegations regarding the FDNY and EMS comparators and Polito’s statements, Plaintiffs have met- their minimal burden, particularly at this stage, to allege an inference of discriminatory intent. See Boykin, 521 F.3d at 215 (denying motion to dismiss where plaintiff alleged that she was African-American, described defendant’s actions, and alleges that she “was treated differently from similarly situated loan applicants ... because of her race, sex, and the location of the property in a predominantly African-American neighborhood”).

Having thus concluded that Plaintiffs have plausibly alleged a violation of their federal rights under § 1981, the Court rejects the City Defendants’ conténtion that Plaintiffs have failed to allege an underlying federal violation as required by Monell: (See Dkts. 92 at 34; 93 at 22). Under Monell, “a municipality can be held liable under Section 1983 if the deprivation of the plaintiffs rights under federal law is caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.2012); see Jett, 491 U.S. at 702, 109 S.Ct. 2702 (a plaintiff “must show that the violation of his § 1981 [rights] was caused by a custom or policy within the meaning of Monell and subsequent cases”). Moreover, as discussed above, the Plaintiffs’ Amended Complaint alleges sufficient facts to raise an inference that the underlying federal injury of racial discrimination is pursuant to a municipal policy or custom. Accordingly, the Court finds that Plaintiffs have adequately alleged a deprivation of a federal right that satisfies the § 1983 Monell standard.

In sum, Plaintiffs have, pled sufficient facts to state a plausible pattern or practice claim of racial discrimination under §§ 1981 and 1983, NYSHRL, and NYCHRL against the City and individual Defendants in. their official capacity. The motion to dismiss these aspects of Plaintiffs’ Amended Complaint is accordingly denied.

C. Racial Discrimination Claims Against the Individual Defendants in their Personal Capacities Under §§ 1981 and 1983

It-is well-established that personal liability under §§ 1981 and 1983 must be predicated on the actor’s personal involvement in the claimed violation and discriminatory purpose. Patterson, 375 F.3d at 229 (“a plaintiff must demonstrate some affirmative link to causally connect the actor with the discriminatory action”). In Reynolds v. Barrett, 685 F.3d 193 (2d Cir.2012), the Second Circuit refused to analyze a plaintiff’s § 1983 Equal Protection claim against individual state defendants under the pattern or practice evidentiary framework, since holding individuals liable based on broad evidence of employer-wide discrimination would contravene the requirement of personal involvement. Id. at 204-05 (noting that pattern or practice framework relies on evidence of employer-wide discrimination, and is therefore “is ill-suited to the task of identifying which individual defendants engaged in purposeful discrimination”). Notably, the Court declined to decide whether the pattern or practice framework can ever be used in a § 1983 suit against a “policy-making supervisory defendant, although it expressed “considerable skepticism” on this issue.” Id. at 205 n. 14.

Relying -on Reynolds, the City Defendants seek to dismiss Plaintiffs’ §§ 1981 and 1983 personal capacity claims against the individual defendants, contending that the pattern or practicé framework may never be applied to analyze discrimination claims against individuals. (Dkt. 93 at 5.) The facts presented here, however, differ markedly from those in Reynolds. Rather than relying solely on allegations of entity-level discrimination, Plaintiffs assert facts that' suggest personal involvement by each of the individual defendants sued in their personal capacity. As the City Defendants acknowledge, the Amended Complaint includes allegations about derogatory remarks made by Politd, threats of disciplinary action by Church, and correspondence or memoranda circulated by Belusic, Napolitano, and Kelly regarding the challenged policies. (Dkt. 92 at 33; Am. Compl. ¶¶ 141-45, 147, 164-65, 193, 195,- 222.) Plaintiffs further allege that Lichtenstein conducted the sham § 72 medical examinations of 911 Operators pursuant to the City Defendants’ allegedly unlawful reasonable accommodations policy. (Am. Compl. ¶¶ 83, 222-23.) With respect to Dowd, the NYPD Communications Section chief, Plaintiffs’ allegations of the NYPD’s lengthy and known violations of Plaintiffs 'sick and FMLA leave rights fairly suggest that Dowd was negligent in his supervision of subordinates in that unit. See Patterson, 375 F.3d at 229 (personal involvement “includes not only direct participation in the alleged violation but also gross negligence in the supervision of subordinates who committed the wrongful acts and failure tó take' action upon receiving information that constitutional violations aré occurring”) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)). Plaintiffs also allege, more broadly, that Napolitano, Dowd, Kelly, Polito, Belusic, and Church were policy-making supervisors within the NYPD Communications Section, and-were responsible for developing, implementing, and enforcing policies affecting the terms and conditions of Plaintiffs’ employment. (Am. Compl. ¶¶ 64, 67-68, 71, 74, 77, 80.)

In sum, these allegations provide the individual Defendants with fair notice of the basis for Plaintiffs’ personal capacity claims against them. The Court accordingly denies the City Defendants’ motion to dismiss Plaintiffs’ §§ 1981 and 1983 claims against, the individual Defendants in their personal capacities.

D. Racial Discrimination Claim Against DC 37 Under § 1981

Plaintiffs’ tenth cause .of action alleges that DC 37 violated § 1981 by subjecting Plaintiffs to differential terms and conditions of representation because of race, and by tacitly -approving of the NYPD’s discriminatory policies. (Am. Compl. ¶¶ 118-19, 305-09.) DC 37 moves to dismiss Plaintiffs’ discrimination claim on the ground that the Amended Complaint lacks allegations to support an inference that DC 37’s conduct was motivated by racial animus.

Employment discrimination claims against unions are analyzed differently from claims 'against employers, in that claims.against unions are grounded in the union’s duty of fair representation to its members.. Klaper v. Cypress Hills Cemetery, 10 CV 1811, 2012 WL 959403, at *7 (E.D.N.Y. Mar. 21, 2012). To prevail on a disparate treatment discrimination claim against DC 37 under § 1981-, Plaintiffs must establish that: 1) DC 37 breached its duty of fair representation, and 2) DC 37’s actions were motivated by discriminatory animus. Id.; see Vaughn v. Am. Tel. & Tel. Co., 92 Fed.Appx. 21, 23 (2d Cir.2004), At the pleading stage, Plaintiffs’ allegations must at least suggest discriminatory intent. Durant v. Union Local 237, 12 CV 1166, 2013 WL 1232555, at *6 (E.D.N.Y. Mar. 4, 2013) report and recommendation adopted, 2013 WL 1247520 (E.D.N.Y. Mar. 26, 2013). In contrast to their allegations pertaining to the City Defendants, Plaintiffs’ allegations regarding DC 37 are devoid of any facts from which the Court can infer discrimination on the basis of race or any other protected status. There are no allegations, for instance; that DC 37 treated similarly situated groups more favorably than the 911 Operators, or that any DC -37 officials made remarks' that could be viewed as reflecting discriminatory animus toward Plaintiffs. Dismissal is thus appropriate with respect to Plaintiffs’ claims that DC 37 directly discriminated against the 911 Operators.

Plaintiffs advance an alternate theory for their § 1981 discrimination claim against DC 37, based on DC 37’s acquiescence to the City’s known discrimination. (Dkt. 90 at 12-16.) Courts indeed have held that “a union’s tacit acquiescence [in] or ratification [of an employer’s discriminatory conduct] ... can serve as a basis for an employment' discrimination claim ...- if the plaintiff sufficiently alleges that this acquiescence or ratification was ‘arbitrary, discriminatory, or in bad faith’ — that is, if the acquiescence or ratification establishes a breach of the union’s [duty of fair representation].” Klaper, 2012 WL 959403, at *11-12 (citing cases);' see Equal Employment Opportunity Comm’n v. Enter. Ass’n Steamfitters Local No. 638 of U.A., 542- F.2d 579, 589 (2d Cir.1976) (“mere acquiescence in the discriminatory acts of the union would render it liable”).

DC 37 maintains that because Plaintiffs are proceeding under § 1981, which requires a showing of purposeful discrimination, Plaintiffs must still plead facts suggesting that DC 37 acted with discriminatory intent to state a claim on an acquiescence theory. This is incorrect. An acquiescence theory of liability “does not require a showing that [the union] was motivated by discriminatory intent.” Klaper, 2012 WL 959403, at *12 (emphasis added); see Ruff v. Coba Union Corr. Officers Benefits, 12 CV 6113, 2013 WL 5960890, at *5 (E.D.N.Y. Nov. 6,2013); see also Goodman v. Lukens Steel Co., 482 U.S. 656, 669, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987) (“A union which intentionally avoids asserting discrimination claims, either so as not to antagonize the employer and thus improve its chances of success on other issues, or in deference to the perceived desires of its white membership, is liable under ... § 1981, regardless of whether, as a