Bergnes v. New York State Unified Court System/Office of Court Administration

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

NEW YORK COMMUNITIES FOR CHANGE

and LINDA BERGNES, et al.,

Plaintiffs,

No. 22-CV-4298 (RA)

v.

OPINION & ORDER

JOSEPH A. ZAYAS and CAROLYN

GRIMALDI,

Defendants.

RONNIE ABRAMS, United States District Judge:

Plaintiffs—the non-profit organization New York Communities for Change (“NYCC”) and

twenty-nine court interpreters employed in the New York State court system (the “Individual

Plaintiffs”)—bring this action pursuant to 42 U.S.C. § 1983 against Defendant Joseph A. Zayas,

the Chief Administrative Judge of the New York State court system, and Defendant Carolyn

Grimaldi, the court system’s director of human resources. Plaintiffs allege that Defendants employ

discriminatory pay practices in violation of the Equal Protection Clause of the Fourteenth

Amendment. In particular, they assert that court interpreters, who are predominantly non-native

English speakers, are significantly underpaid in comparison with other courtroom personnel in the

New York court system, and that those pay disparities constitute unlawful discrimination on the

basis of national origin. Now before the Court is Defendants’ motion to dismiss the Second

Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the

reasons that follow, the motion is granted.

FACTUAL BACKGROUND

The Court assumes the parties’ familiarity with the factual background and procedural

history of this action, as detailed in New York Communities for Change v. New York State Unified

Ct. Sys./Off. of Ct. Admin., 680 F. Supp. 3d 407 (S.D.N.Y. 2023) (“June 2023 Op.”), and

summarizes only the most pertinent facts below. The following facts are drawn from Plaintiffs’

Second Amended Complaint and the attached exhibits which, on a motion to dismiss, the Court

must assume to be true. See, e.g., Lynch v. United States, 952 F.3d 67, 74-75 (2d Cir. 2020).

Plaintiff NYCC is a non-profit social justice organization engaged in “housing, climate

justice, civil rights, and employment organizing,” and its work is “principally done in the Spanish-

speaking community.” Dkt. No. 43 (“Second Am. Compl.”) ¶ 3. The Individual Plaintiffs are

each employed as New York State court interpreters who assist individuals who speak Spanish,

Mandarin, Cantonese, or Polish, or who are deaf, in court proceedings. Id. ¶¶ 4-32. Twenty-five

Plaintiffs interpret for Spanish-speaking individuals, two interpret for individuals who speak

Mandarin and Cantonese, one interprets for Polish-speaking individuals, and one interprets for

individuals who use American Sign Language. Id.

Defendant Joseph A. Zayas, the Chief Administrative Judge of the New York State court

system, oversees the day-to-day operation of the court system, including its $3.3 billion budget

and 15,000 employees. Id. ¶ 33. Defendant Carolyn Grimaldi is the director of human resources

for the Office of Court Administration, which is the administrative arm of the court system. Id.

¶ 34. Defendants oversee the court system’s “approximately 246 full- and part-time [c]ourt

[i]nterpreters in 20 foreign languages and American Sign Language.” Id. ¶ 41. These court

interpreters, Plaintiffs assert, are “mostly immigrant minorities,” id. ¶ 93, and “largely foreign

born, or second generation from foreign born families,” id. ¶ 61.

Plaintiffs principally allege that Defendants pay court interpreters “significantly less” than

other courtroom personnel and that Defendants promote, preserve, and refuse to correct

“discriminatory pay practices” throughout the court system “because those [i]nterpreters are

largely of non-United States national origin, either by birth or ancestry.” Id. ¶ 1. Plaintiffs also

assert that Defendants pay court interpreters at a salary range of $60,245 to $85,886, which is less

than that of court reporters ($81,254 to $131,923), court clerks ($69,852 to $99,057), or court

officers ($63,358 to $90,160). Id. ¶ 45. They argue that court interpreter compensation is thus

discriminatory and “not in [a] proper relationship to similar job titles in State service.” Id. ¶ 46.

In particular, Plaintiffs point to the “significant disparity” in pay between court interpreters

and court reporters. Id. Court reporters, they assert, are “the closest group of professional

employees” to interpreters. Id. Both court interpreters and court reporters require a high school

diploma or equivalent, and the two roles share knowledge, skills, and abilities. Id. ¶¶ 47, 54.

Candidates for both positions are also required to pass civil service exams—a court interpreter

exam and court reporter exam, respectively. Id. ¶ 58. Plaintiffs acknowledge that the court reporter

position requires more experience and training than court interpreters, including either “three []

years of general verbatim reporting experience” or “graduation from a formal program in [c]ourt

reporting and two [] years of general verbatim reporting experience.” Id. ¶ 55. But, they argue,

court interpreting is a “more demanding profession” because of the “necessity of working in two

languages rather than one,” and because “[a]dvanced fluency in a second language … is typically

reached after seven and one-half years of learning the language.” Id. ¶ 47. Despite the “similarities

in the nature of the job and skills required” between the two positions, Plaintiffs allege that court

interpreters earn 26% less than court reporters because—unlike interpreters—court reporters “are

mainly people who are not foreign-born, and transcribe 100% in English, servicing all users of the

Court system.” Id. ¶ 46; see also id. ¶ 61 (“Court [r]eporters are largely Caucasian, and do not

come from a foreign-born background.”).

Plaintiffs allege that this pay disparity is based on a “discriminatory attitude” toward court

interpreters because a “majority” of them are “persons of a non-Anglo national origin” and because

they “provide a service which is not in English, and because those they serve are non-English

speakers.” Id. ¶¶ 93, 98. According to the Second Amended Complaint, court interpreters are

sometimes subjected to demeaning treatment during their employment: Plaintiffs allege, for

example, that “in May 2021, a judge referred to the court interpreters as ‘chattel.’” Id. Many

interpreters, they assert, are not provided internet-accessible computers and some do not have the

same keys provided to other staff, “forcing [i]nterpreters to knock on doors or walk around portions

of a building, even through a fire exit, to access their assigned workspace.” Id. The complaint

also cites a 2020 report on racial bias in the New York State court system, which described an

instance where a judge assigned a Spanish interpreter to an Italian-speaking-litigant. Id. ¶ 95.

After the interpreter informed the judge of the mistake, the judge allegedly responded: “that’s

basically the same thing, go on.” Id.

PROCEDURAL BACKGROUND

Plaintiffs brought this action on May 25, 2022, Dkt. No. 1, and filed the First Amended

Complaint on October 5, 2022, Dkt. No. 19. At that time, the sole Defendant was the New York

State Unified Court System. Id. On June 28, 2023, this Court dismissed the First Amended

Complaint in its entirety, holding that Plaintiffs’ claims were barred by New York’s sovereign

immunity under the Eleventh Amendment. See June 2023 Op. Plaintiffs filed the Second

Amended Complaint—the now operative complaint—on July 28, 2023, adding Defendants Zayas

and Grimaldi and removing all claims against the New York court system. See Second Am.

Compl.

In the instant complaint, Plaintiffs no longer bring any claims under NYSHRL, nor do they

seek backpay for wages and benefits, or emotional distress damages. Id. They solely bring an

action under 42 U.S.C. § 1983, alleging violations of the Equal Protection Clause and seeking both

injunctive and declaratory relief. Id. The prayer for injunctive relief asks the Court to direct

Defendants “to adjust the salaries of the Interpreter Plaintiffs and members of their class to a pay

level commensurate with the knowledge, skills, and abilities which they bring to the job, at a

significantly higher rate of pay, at a level which is not discriminatory.” Id. at 41. The prayer for

declaratory relief requests that the Court “[declare] that Defendants … have violated the

constitutional and statutory rights of the Court Interpreters and of those whom they serve.” Id.

Defendants now move to dismiss the Second Amended Complaint pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Dkt. No. 56 (“Def. Br.”).

LEGAL STANDARD

Federal courts are “courts of limited jurisdiction and must independently verify the

existence of subject-matter jurisdiction before proceeding to the merits.” Singh v. United States

Citizenship & Immigr. Servs., 878 F.3d 441, 445 (2d Cir. 2017).1 “A case is properly dismissed

for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory

or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

2000); see Fed. R. Civ. P. 12(b)(1). The party asserting subject matter jurisdiction “has the burden

of proving by a preponderance of the evidence that it exists.” Makarova, 201 F.3d at 113. In

resolving a Rule 12(b)(1) motion, a district court may refer to evidence outside the pleadings. Id.

1 Unless otherwise indicated, case quotations omit all internal citations, quotations, footnotes, omissions,

emphases, and alterations.

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make that determination, the Court must “accept

as true all factual allegations … but [is] not required to credit conclusory allegations or legal

conclusions couched as factual … allegations.” Dane v. UnitedHealthcare Ins. Co., 974 F.3d 183,

188 (2d Cir. 2020).

DISCUSSION

In moving to dismiss the Second Amended Complaint, Defendants contend that

(i) Plaintiffs’ claims are barred by sovereign immunity, (ii) the Court should dismiss this action

pursuant to the Colorado River abstention doctrine, (iii) NYCC lacks standing, and (iv) the

Individual Plaintiffs fail to state a claim under the Equal Protection Clause. See Def. Br. at 8-19.

Although the Court does not agree that the Eleventh Amendment bars this action or that it should

abstain on Colorado River grounds, it shares Defendants’ view that NYCC lacks standing and that

the Individual Plaintiffs have failed to state a claim. It thus grants Defendants’ motion and

dismisses the Second Amended Complaint.

I. Subject Matter Jurisdiction

A. State Sovereign Immunity

Defendants first argue that state sovereign immunity deprives this Court of subject matter

jurisdiction to hear the case. See Def. Br. at 8-10. The Court previously dismissed Plaintiffs’ First

Amended Complaint on this basis. See June 2023 Op. at 412-14. As explained there, the Eleventh

Amendment generally bars suits against the States or their agencies in federal court, absent a

State’s waiver of sovereign immunity or congressional abrogation. Id. Because the First Amended

Complaint named just one defendant, the New York State Unified Court System—and because no

waiver, abrogation, or other exception applied—the Court held that Plaintiffs’ claims were barred

by the doctrine of sovereign immunity. Id. at 409. In the Second Amended Complaint, Plaintiffs

name two Defendants, Judge Joseph A. Zayas and Carolyn Grimaldi, and now argue that subject

matter jurisdiction exists under the well-known exception to state sovereign immunity set forth in

Ex parte Young, 209 U.S. 123 (1908).

Under Ex parte Young, “a plaintiff may sue a state official acting in his official capacity—

notwithstanding the Eleventh Amendment—for prospective, injunctive relief from violations of

federal law.” State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d Cir. 2007).

This exception to sovereign immunity is a “judge-made remedy” that “reflects a long history of

judicial review” of “unconstitutional actions by state … officers.” Armstrong v. Exceptional Child

Ctr., Inc., 575 U.S. 320, 327 (2015). “It rests on the premise—less delicately called a ‘fiction’—

that when a federal court commands a state official to do nothing more than refrain from violating

federal law, he is not the State for sovereign-immunity purposes.” Virginia Off. for Prot. & Advoc.

v. Stewart, 563 U.S. 247, 255 (2011). As the Supreme Court has long reiterated, the doctrine

allows the Fourteenth Amendment “to serve as a sword, rather than merely as a shield, for those

whom [it was] designed to protect.” Edelman v. Jordan, 415 U.S. 651, 664 (1974). Ex parte

Young thus “remains a landmark of American constitutional jurisprudence that operates to end

ongoing violations of federal law and vindicate the overriding federal interest in assuring the

supremacy of that law.” In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007).

“To determine whether Ex parte Young applies to a complaint, [courts] conduct a

straightforward inquiry into whether the complaint (1) alleges an ongoing violation of federal law

and (2) seeks relief properly characterized as prospective.” Silva v. Farrish, 47 F.4th 78, 84 (2d

Cir. 2022). First, the doctrine applies only when “a violation of federal law by a state official is

ongoing as opposed to cases in which federal law has been violated at one time or over a period of

time in the past.” Papasan v. Allain, 478 U.S. 265, 277-78 (1986). Because “[a]n allegation of

an ongoing violation of federal law is sufficient for purposes of the Young exception,” a court’s

inquiry “does not include an analysis of the merits of the claim.” In re Deposit Ins. Agency, 482

F.3d at 621. Second, “federal courts may hear claims for prospective injunctive relief” but not

“retroactive claims seeking monetary damages from the state treasury.” Tsirelman v. Daines, 794

F.3d 310, 314 (2d Cir. 2015). As the Supreme Court has noted, Ex parte Young must “reflect a

proper understanding of its role in our federal system and respect for state courts,” Idaho v. Coeur

d’Alene Tribe of Idaho, 521 U.S. 261, 270 (1997), and the doctrine cannot overcome sovereign

immunity “when the state is the real, substantial party in interest … as when the judgment sought

would expend itself on the public treasury or domain, or interfere with public administration.”

Stewart, 563 U.S. at 255. The Eleventh Amendment thus forecloses “an award of money required

to be paid from state funds that compensates a claimant for the state’s past violations of federal

law.” Morenz v. Wilson-Coker, 415 F.3d 230, 237 (2d Cir. 2005); see Green v. Mansour, 474 U.S.

64, 68 (1985) (noting that, unlike “[r]emedies designed to end a continuing violation of federal

law, … compensatory or deterrence interests are insufficient to overcome the dictates of the

Eleventh Amendment”). Ultimately, “[t]he touchstone for determining whether certain relief is

permissible under Ex parte Young is the prospective or retrospective nature of the relief sought.”

Nat’l R.R. Passenger Corp. v. McDonald, 978 F. Supp. 2d 215, 229 (S.D.N.Y. 2013), aff’d, 779

F.3d 97 (2d Cir. 2015); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 (1984).

Although the application of Ex parte Young can be “straightforward,” In re Deposit Ins.

Agency, 482 F.3d at 618, “in many cases the difference between the type of relief barred by the

Eleventh Amendment and that permitted under Ex parte Young is not as clear cut as the brightness

of high noon and the darkness of midnight,” In re Dairy Mart Convenience Stores, Inc., 411 F.3d

367, 375 (2d Cir. 2005) (citing Edelman, 415 U.S. at 667). In these cases, “[t]he general criterion

for determining when a suit” can be brought under Ex parte Young “is the effect of the relief

sought.” Pennhurst State Sch., 465 U.S. at 107; see New York City Health & Hosps. Corp. v.

Perales, 50 F.3d 129, 135 (2d Cir. 1995) (“[I]t is the nature of that requested relief, not the label

placed on it, which determines [the doctrine’s] availability.”); Vega v. Semple, 963 F.3d 259, 282-

83 (2d Cir. 2020). If, for example, a plaintiff “frame[s] the relief it seeks in prospective terms”

but the “effect of the relief sought is entirely retrospective,” McDonald, 978 F. Supp. 2d at 229,

then the State “is entitled to invoke its sovereign immunity from suit,” In re Dairy Mart

Convenience Stores, Inc., 411 F.3d at 374; see Stewart, 563 U.S. at 256 (noting that courts are

“willing to police abuses of the doctrine that threaten to evade sovereign immunity”). “In contrast,

suits for injunctive relief,” where “the prospective aim … is to end a continuing violation of federal

law,” can properly “overcome the compelling justifications for a state’s sovereign immunity” and

the Ex parte Young doctrine applies. 411 F.3d at 374-75.

In Edelman v. Jordan, a petitioner sought both prospective injunctive relief and equitable

restitution against State officials. 415 U.S. at 653. The Supreme Court held that the suit was

barred to the extent it sought “the award of an accrued monetary liability”—which was retroactive

in nature—but the suit was proper with respect to the “payment of state funds … as a necessary

consequence of compliance in the future with a substantive federal-question determination.” Id.

at 663-64, 668. As the Court explained, “[i]t is one thing to tell [a State officer] that he must

comply with the federal standards for the future … [but it] is quite another thing to order [him] to

use state funds to make reparation for the past.” Id. at 665. Now, over half a century later, it is

“well-established” that “where an adverse effect on the state treasury is the necessary result of

compliance with decrees which by their terms were prospective in nature, the Eleventh

Amendment poses no obstacle.” Morenz, 415 F.3d at 237; see Vega, 963 F.3d at 282 (“[R]elief

that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh

Amendment even though accompanied by a substantial ancillary effect on the state treasury.”);

Milliken v. Bradley, 433 U.S. 267, 288-89 (1977). Moreover, even if a violation “stemmed from a

past wrong,” the doctrine can apply if state officers “continue[] to cause constitutional violations.”

Seneca Nation v. Hochul, 58 F.4th 664, 671 (2d Cir. 2023).

Here, a straightforward reading of the complaint makes clear that Plaintiffs are suing state

officials, acting in their official capacity, for “prospective, injunctive relief from violations of

federal law.” Rowland, 494 F.3d at 95. First, Plaintiffs allege an ongoing violation of federal law.

They assert that Defendants presently enforce discriminatory pay practices, continuing to pay court

interpreters at a lower salary scale ($60,245 to $85,886 per year) than their court reporter

counterparts ($81,254 to $131,923) due to their national origin, in violation of the Equal Protection

Clause. See Second Am. Compl. at 15, 41. Second, Plaintiffs seek relief properly characterized

as prospective. In particular, they ask the Court to “[d]irect[] Defendants to adjust the salaries of

the [i]nterpreter Plaintiffs” to “a pay level commensurate with the knowledge, skills, and abilities

which they bring to the job … at a level which is not discriminatory.” Id. at 41. And they do not

seek “compensation for past wrongs” such as “lost wages, backpay, or retroactive benefits.”

Rowland, 494 F.3d at 98. Accordingly, the Court finds that Plaintiffs seek “prospective injunctive

relief to end a continuing violation of federal law.” In re Dairy Mart Convenience Stores, Inc.,

411 F.3d at 370; see Papasan, 478 U.S. at 282 (holding that the expenditure of state funds to

remedy a “present disparity in the distribution of the benefits from the State,” in violation of the

Equal Protection Clause, “is precisely the type of continuing violation for which” Ex parte Young

applies).

To be sure, the relief that Plaintiffs seek may appear “indistinguishable in many aspects

from an award of damages against the State,” in that it “will to a virtual certainty be paid from

state funds, and not from the pockets of the individual state officials.” Edelman, 415 U.S. at 668.

Nevertheless, in considering the “effect of the relief sought,” Pennhurst State Sch., 465 U.S. at

107—and “notwithstanding [its] direct and substantial impact on the state treasury”—the Court

holds that Plaintiffs’ requested relief “fits squarely within [Ex parte Young’s] prospective-

compliance exception,” Milliken, 433 U.S. at 289. Indeed, cases seeking similar injunctive relief

have been found to adequately state a claim under Ex parte Young. In State Employees Bargaining

Agent Coalition v. Rowland, for example, recently-terminated state employees sued state officials

and sought “injunctive relief in the form of an order … compelling defendants … to reinstate

[individual plaintiffs] to their former positions … or such other position as the Court deems

appropriate, with full and appropriate restoration of seniority and benefits.” 494 F.3d at 79. There,

the Second Circuit held that State sovereign immunity posed no bar to the suit because the plaintiffs

sought prospective relief:

[P]laintiffs’ requested relief of reinstatement to positions that might no longer exist

can hardly be characterized as “retroactive” or as seeking “accrued benefits.” To

the contrary, the relief would be entirely forward-looking inasmuch as it would

require the state prospectively to rehire plaintiffs into existing positions or create

new positions in the State workforce, and to compensate plaintiffs for work

performed in the course of their future employment. See [Doe v. Lawrence

Livermore Nat’l Lab., 131 F.3d 836, 841 (9th Cir.1997)] (relying on fact that

plaintiff “would be entitled to [a] salary solely for his work after reinstatement” to

conclude that relief of reinstatement was prospective in nature).

Id. at 98.2 Similarly, in Association of Surrogates and Supreme Court Reporters v. New York, the

Second Circuit directed a district court to enjoin a “lag-payroll law,” which would have delayed

the payment of employee salaries. 940 F.2d 766, 769 (2d Cir. 1991). As the court there explained,

requiring payments to the affected employees was a “purely prospective remedy,” and the order’s

effect on the state treasury was “a permissible and … inevitable consequence of the principle

announced in Ex parte Young.” Id. Accordingly, given that Plaintiffs here seek prospective relief

from alleged, ongoing constitutional violations—and not relief for a “past loss,” Seneca Nation,

58 F.4th at 671—the Eleventh Amendment poses no bar to this suit.3

Finally, even where a plaintiff properly brings claims against defendants in their official

capacities, Ex parte Young “only authorizes suit against officials with authority to provide the

requested relief.” Ndemenoh v. Boudreau, 2023 WL 6122852, at *13 (S.D.N.Y. Sept. 19, 2023).

“In order for the exception to apply where a [c]omplaint seeks injunctive relief, it must therefore

2 Although Rowland involved employees seeking reinstatement of previously-held positions, other courts

have similarly found that they had subject matter jurisdiction over Ex parte Young suits seeking pay raises

or changes to employee classification. See, e.g., De Figueroa v. New York, 403 F. Supp. 3d 133, 162 n.24

(E.D.N.Y. 2019) (holding that the “denial of [a] salary increase is an ongoing violation” and that a plaintiff’s

request for “salary relief qualifies as prospective injunctive relief”); Wilkinson v. New York State, 2019 WL

5423573, at *7-9 (E.D.N.Y. Oct. 22, 2019) (same); Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000)

(allowing an Ex parte Young suit to proceed where employee plaintiffs requested an “injunction

commanding [a] university [president] to raise their base salary to what it would have been had they not

been discriminated against” under federal law); Strong v. Grambling State Univ., 159 F. Supp. 3d 697, 706

n.4 (W.D. La. 2015), aff’d, 614 F. App’x 776 (5th Cir. 2015) (holding that an Ex parte Young suit “demands

prospective relief, insofar as [plaintiff] requests that the court order that positions be … filled according to

fairness, competency, qualifications, and that salaries be awarded based on qualifications and

experiences”); Patteson v. Johnson, 787 F.2d 1245, 1249 (8th Cir. 1986) (“[Plaintiff] is entitled to

prospective relief, including salary, accrual time for retirement vesting, and other benefits.”).

3 Plaintiffs also seek declaratory relief, requesting a declaration that “Defendants … have violated the

constitutional and statutory rights of the [c]ourt interpreters.” Second Am. Compl. at 41. This additional

prayer for relief does not deprive the Court of jurisdiction under Ex parte Young. See Verizon Maryland,

Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 646 (2002) (noting that a “prayer for declaratory

relief adds nothing to [a] prayer for injunction” even where a plaintiff “seeks a declaration of the past, as

well as the future,” as long as “no past liability of the State [or its officers] is at issue”).

be alleged that the defendant has responsibility for the alleged conduct and the ability to redress

the alleged violations.” Id. In this case, Plaintiffs have alleged as much. Plaintiffs assert, for

example, that Defendant Zayas “oversees the day-to-day operation of the Statewide Court system,

including its $3.3 billion budget [and its] employees.” Second Am. Compl. ¶ 33. They also allege

that Defendant Grimaldi is the director of human resources for the Office of Court Administration,

responsible for overseeing personnel administration, including the administration of benefits. Id.

Plaintiffs claim, moreover, that Defendants “enforce[]” and “adhere[] to” “discriminatory pay

practices,” id. ¶ 96, “by their failure to lawfully pay salaries to [c]ourt [i]nterpreters commensurate

with their skills,” id. at 41. Plaintiffs thus adequately allege that Defendants “ha[ve] responsibility

for the alleged conduct and the ability to redress the alleged violations.” Shollenberger v. New

York State Unified Ct. Sys., 2019 WL 2717211, at *5 (S.D.N.Y. June 28, 2019); see CSX Transp.,

Inc. v. New York State Off. of Real Prop. Servs., 306 F.3d 87, 99 (2d Cir. 2002). Accordingly, Ex

parte Young permits jurisdiction over Defendants for prospective, injunctive relief.

B. Colorado River Abstention Doctrine

Defendants also argue that the Court should dismiss or stay this action under the Colorado

River abstention doctrine because Plaintiffs have brought a parallel suit in state court. Def. Br. at

10. The Court declines to do so.

“The abstention doctrine comprises a few ‘extraordinary and narrow exception[s]’ to a

federal court’s duty to exercise its jurisdiction.” Woodford v. Cmty. Action Agency of Greene

Cnty., Inc., 239 F.3d 517, 522 (2d Cir. 2001) (quoting Colorado River Water Conservation Dist.

v. United States, 424 U.S. 800, 813 (1976)). Under Colorado River abstention, when there are

concurrent actions in federal and state court, a federal district court “may abstain in order to

conserve federal judicial resources only in exceptional circumstances.” Id. To determine if the

doctrine applies, courts first consider if the concurrent proceedings are “parallel” such that

“substantially the same parties are contemporaneously litigating substantially the same issue in

another forum.” Dittmer v. Cnty. of Suffolk, 146 F.3d 113, 118 (2d Cir. 1998). If parallel

proceedings exist, courts then evaluate six factors:

(1) whether the controversy involves a res over which one of the courts has assumed

jurisdiction; (2) whether the federal forum is less inconvenient than the other for

the parties; (3) whether staying or dismissing the federal action will avoid

piecemeal litigation; (4) the order in which the actions were filed … and whether

proceedings have advanced more in one forum than in the other, … ; (5) whether

federal law provides the rule of decision; and (6) whether the state procedures are

adequate to protect the plaintiff’s federal rights.

Woodford, 239 F.3d at 522. The “balance [is] heavily weighted in favor of the exercise of [federal]

jurisdiction,” and “the facial neutrality of a factor is a basis for retaining jurisdiction, not for

yielding it.” Id. “For example, with respect to the first Colorado River factor, the absence of a res

point[s] toward exercise of federal jurisdiction,” and, as to the second factor, “where the federal

court is just as convenient as the state court, that factor favors retention of the case in federal

court.” Id. at 522-23. In conducting this inquiry, a court’s task “is not to find some substantial

reason for the exercise of federal jurisdiction … ; rather, the task is to ascertain whether there exist

exceptional circumstances, the clearest of justifications, that can suffice under Colorado River to

justify the surrender of that jurisdiction.” Niagara Mohawk Power Corp. v. Hudson River-Black

River Regulating Dist., 673 F.3d 84, 101 (2d Cir. 2012).

In this case, no such exceptional circumstances exist. Although Plaintiffs bring parallel

proceedings in federal and state court, abstention may not be “based simply on an aversion to

deciding an issue prior to a state court’s adjudication.” Woodford, 239 F.3d at 525 (“Each court

is free to proceed in its own way and in its own time, without reference to the proceedings in the

other court.”). Further, several Colorado River factors weigh in favor of retaining jurisdiction:

The controversy does not involve a res; the federal forum is no less convenient than the state forum;

the federal suit was filed first; and federal law governs Plaintiffs’ Equal Protection claims. See

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26 (1983) (“[T]he presence of

federal-law issues must always be a major consideration weighing against surrender.”).

Defendants nonetheless argue that the danger of piecemeal litigation “strongly weighs in

favor of abstention” because the Eleventh Amendment may bar the Court from considering all of

Plaintiffs’ claims. Def. Br. at 12. The Court, however, has already rejected Defendants’ State

sovereign immunity arguments, and the parallel state suit does not otherwise pose “a risk of

inconsistent outcomes not preventable by principles of res judicata [or] collateral estoppel.”

Woodford, 239 F.3d at 524. Finally, while state procedures may well be adequate to protect

Plaintiffs’ federal rights, the balance of factors here is “heavily weighted in favor of the exercise

of jurisdiction.” Id. at 522. Accordingly, given that “only the clearest of justifications will

warrant” abstention, Moses H. Cone, 460 U.S. at 16, the Court will not abstain on Colorado River

grounds.

C. Standing of Plaintiff NYCC

Defendants next contend that Plaintiff NYCC lacks standing to bring this 42 U.S.C. § 1983

action on behalf of its members or on behalf of itself as an organization. Def. Br. at 13. The Court

agrees.

“Article III standing is a bedrock constitutional requirement.” Food & Drug Admin. v. All.

for Hippocratic Med., 602 U.S. 367, 378 (2024). “For a plaintiff to get in the federal courthouse

door and obtain a judicial determination … , the plaintiff cannot be a mere bystander, but instead

must have a personal stake in the dispute.” Id. at 379. Thus, to establish standing, “a plaintiff

must demonstrate (i) that she has suffered or likely will suffer an injury in fact, (ii) that the injury

likely was caused or will be caused by the defendant, and (iii) that the injury likely would be

redressed by the requested judicial relief.” Id. at 380.

In this Circuit, “an organization does not have standing to assert the rights of its members

in a case brought under 42 U.S.C. § 1983” because the rights that § 1983 secures are “personal to

those purportedly injured.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011). Plaintiff NYCC

thus lacks standing to bring this § 1983 action as the representative of its members. See League of

Women Voters of Nassau Cnty. v. Nassau Cnty. Bd. of Supervisors, 737 F.2d 155, 160 (2d Cir.

1984) (“Neither [the] language nor the history [of § 1983] suggests that an organization may sue

under the Civil Rights Act for the violations of rights of members.”).4

Plaintiffs appear to argue that the NYCC can nevertheless “independently satisfy” the

requirements of Article III “and bring suit by itself.” Moya v. United States Dep’t of Homeland

Sec., 975 F.3d 120, 128 (2d Cir. 2020). As the Court of Appeals has explained, “nothing prevents

an organization from bringing a § 1983 suit on its own behalf so long as it can independently

satisfy the requirements of Article III standing.” Nnebe, 644 F.3d at 156. “To bring a Section

1983 suit, … an organization must … show that the violation of its members’ rights has caused

the organization to suffer an injury independent of that suffered by its members.” Poole, 922 F.3d

at 74. In other words, the organization must satisfy the injury-in-fact prong of standing “without

4 Plaintiffs cite International Union, United Automobile, Aerospace & Agricultural Implement Workers of

America, et al., v. Brock, 477 U.S. 274 (1986), for the general proposition that an “association may be an

appropriate representative of its members, entitled to invoke the court’s jurisdiction.” Id. at 511; see

Dkt. No. 63 (“Pl. Br.”) at 42. International Union, however, did not involve claims under 42 U.S.C. §

1983, and the Circuit has squarely rejected Plaintiffs’ organizational-standing argument. See, e.g., Christa

McAuliffe Intermediate Sch. PTO, Inc. v. de Blasio, 788 F. App’x 85 (2d Cir. 2019) (“[O]rganizational

plaintiffs … do not have standing to assert claims under 42 U.S.C. § 1983 on behalf of their members.”);

New York State Citizens’ Coal. for Child. v. Poole, 922 F.3d 69, 74-75 (2d Cir. 2019) (“In a string of

opinions, this Court has held that organizations suing under Section 1983 must, without relying on their

members’ injuries, assert that their own injuries are sufficient to satisfy Article III’s standing

requirements.”).

relying on [its] members’ injuries.” Id. at 75. To do so, NYCC must plausibly allege that it has

“suffered an invasion of a legally protected interest that is concrete and particularized and actual

or imminent, not conjectural or hypothetical.” Moya, 975 F.3d at 129. “[O]nly a perceptible

impairment of an organization’s activities is necessary for there to be an injury in fact.” Nnebe,

644 F.3d at 157. But that impairment must still be concrete and particularized. Moya, 975 F.3d

at 129; see Ragin v. Harry Macklowe Real Est. Co., 6 F.3d 898, 905 (2d Cir. 1993) (noting that

“an organization’s abstract concern with a subject that could be affected by an adjudication does

not substitute for the concrete injury required by Art. III”). “This showing can be met by

identifying some perceptible opportunity cost that the organization has incurred because of the

violation of its members’ rights.” Poole, 922 F.3d at 75.

Plaintiffs assert that NYCC is “a not-for-profit membership corporation” and “social justice

organization engaged in housing, climate justice, civil rights, and employment organizing.”

Second Am. Compl. ¶ 3. NYCC works “in the Spanish-speaking community and a large number

of its members are Spanish speakers.” Id. Plaintiffs also allege that Defendants “deprive[d] …

plaintiff NYCC … of equal protection of the law,” id. ¶ 33, because the lower pay of court

interpreters “results in mistreatment of and denial of equal access to those represented … by

NYCC, who speak languages other than English who are not being served by the most qualified

[i]nterpreters,” id. ¶ 50.

NYCC does not plausibly allege, however, that it has suffered a concrete, particularized,

and actual or imminent injury-in-fact independent of that suffered by its members. Poole, 922

F.3d at 74. It does not, for example, allege that Defendants’ actions require “the expenditure of

[NYCC] resources that could be spent on other activities” or that there exists “some perceptible

opportunity cost expended by” NYCC. Nnebe, 644 F.3d at 157. Nor does it assert that the

“substantial expenditure of resources” has frustrated its “mission,” Moya, 975 F.3d at 130, or

otherwise allege that Defendants’ conduct “increases demand for [its] services,” Hous. Rts.

Initiative v. Compass, Inc., 2023 WL 1993696, at *9 (S.D.N.Y. Feb. 14, 2023) (citing Poole, 922

F.3d at 75). NYCC has thus failed to “clear [the] hurdle[]” of identifying a concrete harm “without

relying on [its] members’ injuries” to satisfy standing. Poole, 922 F.3d at 74-75. Without

plausibly alleging any “perceptible impairment” of its activities, Nnebe, 644 F.3d at 157, NYCC

lacks standing to bring this suit.

No party contests, however, that Linda Bergnes and the other Individual Plaintiffs do have

standing to bring this action. Because the Individual Plaintiffs allege that Defendants have

engaged in “discriminatory pay practices,” undercompensating them due to their national origin,

Second Am. Compl. ¶ 96, they satisfy the requirements of Article III standing. In other words,

they allege that they have “suffered an injury in fact—a concrete and imminent harm to a legally

protected interest, like … money—that is fairly traceable to the challenged conduct and likely to

be redressed by the lawsuit.” Biden v. Nebraska, 143 S. Ct. 2355, 2365 (2023). Indeed, courts

routinely hold that subject matter jurisdiction exists where plaintiffs allege disparate-pay claims

under § 1983. See, e.g., Hernandez v. Kellwood Co., 2003 WL 22309326, at *1 (S.D.N.Y. Oct. 8,

2003); Xanthakos v. City Univ. of New York, 2020 WL 5026930, at *3 n.3 (S.D.N.Y. Aug. 24,

2020). And because “at least one plaintiff has standing, [this] suit may proceed” to the merits.

Biden v. Nebraska, 143 S. Ct. at 2365.

II. Individual Plaintiffs’ Equal Protection Claim

Lastly, Defendants argue that Plaintiffs have failed to state a claim. The Individual

Plaintiffs bring a § 1983 claim against Defendants for violating their constitutional right to equal

protection under the Fourteenth Amendment. They primarily allege that Defendants’ decision to

underpay court interpreters relative to other courtroom personnel constitutes unlawful

discrimination on the basis of national origin. See Second Am. Compl. ¶¶ 1, 46-50, 98-99.

Defendants argue that Plaintiffs fail to state a pay discrimination claim because they do not allege

a materially equivalent comparator group and fail to plausibly allege an inference of

discrimination. See Def. Br. at 16-18. The Court agrees with Defendants.

At its core, the Equal Protection Clause “requires that the government treat all similarly

situated people alike.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).

To enforce this right, public employees bringing equal protection claims may bring suit pursuant

to 42 U.S.C. § 1983. See Naumovski v. Norris, 934 F.3d 200, 212 (2d Cir. 2019). Together,

Ҥ 1983 and the Equal Protection Clause protect public employees from various forms of [national-

origin] discrimination, including … disparate treatment.” Demoret v. Zegarelli, 451 F.3d 140, 149

(2d Cir. 2006); see Basak v. New York State Dep’t of Health, 9 F. Supp. 3d 383, 389-91 (S.D.N.Y.

2014). Disparate treatment, in this context, occurs when a defendant intentionally discriminates

against an employee because of their protected class, which can include their national origin. See

Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015).

“[O]ne way an employer might discriminate against an employee because of her [national

origin] is to pay her less than her … peers who perform equal work.” Lenzi v. Systemax, Inc., 944

F.3d 97, 110 (2d Cir. 2019). To bring a disparate-treatment discrimination claim based on

disparate pay, a plaintiff must plausibly allege “(1) that [s]he [is] a member of [the] protected class;

(2) that [s]he [is] paid less than similarly situated employees who are not members of the plaintiff’s

protected class; and (3) evidence of discriminatory animus.” Simpson v. Metro-N. Commuter R.R.,

2006 WL 2056366, at *7 (S.D.N.Y. July 20, 2006). On a motion to dismiss, a plaintiff need only

“demonstrate circumstances giving rise to an inference of discrimination,” which she can do “by

alleging that [s]he was treated less favorably than similarly situated employees of other … national

origins.” Brown v. Daikin Am. Inc., 756 F.3d 219, 229 (2d Cir. 2014). To succeed on such a claim,

however, a plaintiff must plausibly allege that “she was similarly situated in all material respects

to the individuals with whom she seeks to compare herself.” Id. at 230. A plaintiff is not obliged

to show disparate treatment of an “identically situated employee,” but “those employees must have

a situation sufficiently similar to [the] plaintiff’s to support at least a minimal inference that the

difference of treatment may be attributable to discrimination.” McGuinness v. Lincoln Hall, 263

F.3d 49, 54 (2d Cir. 2001).

“Employees are not similarly situated merely because their [job responsibilities] might be

analogized.” Simpson, 2006 WL 2056366, at *7. “Instead, to be similarly situated, employees

must be substantially similar as to specific work duties, education, seniority, and performance

history, all of which affect an employee’s rate of pay.” Id.; see United Prob. Officers Ass’n v. City

of New York, 2022 WL 875864, at *8 (S.D.N.Y. Mar. 24, 2022) (“To perform equal work for

purposes of a pay discrimination claim, individuals must perform the same job requiring the same

effort and responsibility and under similar working conditions.”); see Rose v. Goldman, Sachs &

Co., Inc., 163 F. Supp. 2d 238, 242 (S.D.N.Y. 2001) (noting, in the Equal Pay Act context, that a

plaintiff “must show that the two positions are substantially equal in skill, effort and

responsibility”); Setlech v. United States, 189 F.3d 462, 1999 WL 668118, at *3 (2d Cir. 1999)

(finding that the plaintiff, an English professor, was not “similarly situated” to math or science

professors).

Here, Plaintiffs fail to plausibly allege that they are “similarly situated in all material

respects” to any comparator group. Brown, 756 F.3d at 229. Although they assert that court

reporters are “the closest group of professional employees” to court interpreters, Second Am.

Compl. ¶ 46, they do not plausibly allege that the two positions share work duties, educational

requirements, or working conditions. To the contrary, the complaint acknowledges that the court

reporter position requires applicants to pass a separate civil service exam, id. ¶ 58, as well as more

formal training, including at least two years of court reporting experience, id. ¶ 55. Plaintiffs also

do not assert that court interpreters share job responsibilities with court reporters; instead, they

highlight the differences “between the phonetic-bound translation performed by [c]ourt reporters

as compared with the culture-bound translation performed by [c]ourt [i]nterpreters.” Id. ¶ 47.

Moreover, Grubic v. Los Angeles Superior Court, 2009 WL 10698377 (C.D. Cal. Dec. 21, 2009),

is instructive here. In Grubic, the court concluded, under similar circumstances, that a plaintiff

did not state a pay discrimination claim because she “fail[ed] to sufficiently allege that the other

[court] employees, such as court reporters, perform[ed] substantially the same work, or work of

comparable value,” as court interpreters. Id. at *5. Plaintiffs here, too, fail to plausibly allege that

they are paid less than “similarly situated employees who are not members of [their] protected

class.” Simpson, 2006 WL 2056366, at *7.5

Even if Plaintiffs could show that court reporters are similarly situated to court interpreters,

they also fail to plausibly allege “circumstances giving rise to an inference of discrimination,”

Brown, 756 F.3d at 229. Plaintiffs argue that they have done so because their allegations are

“principally statistical” and that “statistics alone may be sufficient to warrant a plausible inference

of discriminatory intent.” Pl. Br. at 44. But “to show discriminatory intent in a[n] … Equal

Protection case based on statistics alone, the statistics must not only be statistically significant in

5 Plaintiffs also compare themselves to federal court interpreters, who they assert earn more than their State

counterparts. See Second Am. Compl. ¶ 45. For the purposes of their disparate-pay claim, however, this

comparison is inapposite. Not only do Plaintiffs fail to allege that federal court interpreters are “peers who

perform equal work,” Lenzi, 944 F.3d at 110, but they do not even suggest that Defendants play any role in

setting federal court interpreter salaries. This comparison thus does not plausibly assist Plaintiffs in stating

a disparate-treatment discrimination claim.

the mathematical sense, but they must also be of a level that makes other plausible non-

discriminatory explanations very unlikely.” Burgis v. New York City Dep’t of Sanitation, 798 F.3d

63, 69 (2d Cir. 2015); see Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir.

2001), abrogated on other grounds by Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).

Plaintiffs have not met this burden, as they offer no direct evidence of discriminatory intent

but only vague statistics and conclusory allegations, which are “insufficient to support plausibly

the key intentional conduct element of Plaintiffs’ federal discriminatory treatment claim.”

Raymond v. City of New York, 317 F. Supp. 3d 746, 762 (S.D.N.Y. 2018); see also Altidor v. Med.

Knowledge Grp. LLC, 2023 WL 6124019, at *4 (S.D.N.Y. Sept. 16, 2023) (rejecting a pay

discrimination claim where the plaintiff gave only “a vague breakdown of the racial makeup of the

defendant company”). Plaintiffs allege that Defendants oversee 246 court interpreters, Second

Am. Compl. ¶ 41, the “majority” of whom are “persons of a non-Anglo national origin,” id. ¶ 98;

see id. ¶ 93 (“Court [i]nterpreters … are mostly immigrant minorities.”). They also allege that

court reporters are “largely Caucasian,” id. ¶ 61, and “mainly people who are not foreign-born,”

id. ¶ 46. Generalities aside, however, Plaintiffs provide no concrete statistics about courtroom

personnel broken down by national origin, ethnicity, race, ancestry, or otherwise. Cf. Burgis, 798

F.3d at 70 (holding that the plaintiffs’ statistics were insufficient because they “show[ed] only the

raw percentages of White, Black, and Hispanic individuals at each employment level, without

providing any detail as to the number of individuals at each level, the qualifications of individuals

in the applicant pool and of those hired for each position, or the number of openings at each level”).

Accordingly, Plaintiffs’ vague statistics are not “of a level that make[] other plausible non-

discriminatory explanations very unlikely.” Id. at 69. By providing no statistics about court

interpreters or any comparator group—either in percentages or numbers—Plaintiffs thus fail to

make a “factual proffer sufficient to push Plaintiffs’ claim over the line from possible to plausible.”

Raymond, 317 F. Supp. 3d at 761.

The anecdotal evidence that Plaintiffs offer to show that their pay “is based on a

discriminatory attitude” toward court interpreters because of national origin, Second Am. Compl.

¶ 93, is further insufficient to state a claim. To be sure, it is certainly troubling that one judge

allegedly referred to court interpreters as “chattel” and that another knowingly assigned a Spanish

interpreter to an Italian-speaking litigant. See id. ¶¶ 93-95. Also concerning are the allegations

that court interpreters are treated less professionally than court reporters and that they lack access

to the dedicated workspaces, computers, and general-access keys provided to other staff. Id. But

these examples do not, without more, plausibly allege that Defendants’ pay decisions were

motivated by discriminatory animus on the basis of national origin. See Brown, 756 F.3d at 230.

Plaintiffs aver, in a conclusory fashion, that “[t]he discriminatory pay practices in the Court

system, enforced and adhered to by defendants Zayas and Grimaldi, are a reflection of [a]

discriminatory attitude.” Second Am. Compl. ¶ 96. But none of these examples plausibly allege

that Defendants Zayas or Grimaldi played any role in Plaintiffs’ mistreatment, and Plaintiffs do

not otherwise assert that Defendants directed or had knowledge of the alleged systemic

discrimination. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85, 89 (2d Cir. 2015);

Littlejohn, 795 F.3d at 314; Richards v. City of New York, 2021 WL 4443599, at *7 (S.D.N.Y.

Sept. 28, 2021) (holding that allegations of discriminatory remarks by a “co-worker who was not

involved in [p]laintiff’s termination” did not plausibly allege discriminatory animus without “a

causal connection between the remark and his termination”); Saunders v. New York Convention

Ctr. Operating Corp., 2022 WL 3577773, at *6 (S.D.N.Y. Aug. 19, 2022).

Ultimately, Plaintiffs challenge one specific form of discrimination: Defendants’ decision

to pay court interpreters at a lower rate than court reporters and other courtroom personnel,

allegedly on the basis of national origin. However, as discussed above, Plaintiffs do not allege a

materially equivalent comparator group; they fail to plausibly allege that this practice constitutes

intentional discrimination on the basis of national origin; and they offer no direct evidence or

statistics that “make[] other plausible non-discriminatory explanations very unlikely.” Burgis, 798

F.3d at 69. Indeed, several plausible, non-discriminatory explanations for the pay disparity exist,

such as differences in formal training requirements and job responsibilities. See id. (“For all that

one can tell from the [complaint], it is equally possible [that defendants’ actions were taken] for

valid, non-discriminatory reasons.”). Accordingly, Plaintiffs do not plausibly state a § 1983 pay-

discrimination claim.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss the Second Amended Complaint

is granted. The Clerk of Court is respectfully directed to terminate the motion pending at Dkt.

No. 54 and close this case.

Dated: August 12, 2024 ,

New York, New York kh f

L ————-,,

Hon. Ronnie Abrams

United States District Judge

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