Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 1 of 15 PageID #: 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------------x
BARRY BROWN
Plaintiff,

COMPLAINT
AND JURY DEMAND

-againstTHE CITY OF NEW YORK; DAVID FRANKEL, as

Former Commissioner, New York City Department of Finance;
BETH E. GOLDMAN, as Former Commissioner, New York
City Department of Finance; JACQUES JIHA, as Commissioner,
New York City Department of Finance; ELOISE M. ARCHIBALD,
as Director of Psychological Services, Police Department City of
New York; FRANK P. PESALE, as Psychologist Level 1,
Police Department City of New York and ALEXANDER STATIS,
as Psychologist Level 1, Police Department City of New York, each
being sued individually in their official capacities as employees of
defendant THE CITY OF NEW YORK
Defendants
-----------------------------------------------------------------------------x
The plaintiff BARRY BROWN by his attorney The Sanders Firm, P.C., as and for his
complaint against defendants THE CITY OF NEW YORK; DAVID FRANKEL; BETH E.
GOLDMAN; JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and
ALEXANDER STATIS, respectfully set forth and allege that:
INTRODUCTION
This is an action for equitable relief and money damages on behalf of the plaintiff BARRY
BROWN, (hereinafter referred to as plaintiff) whose statutory rights as an applicant and employee
were violated as a result of defendants THE CITY OF NEW YORK; DAVID FRANKEL; BETH
E. GOLDMAN; JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and
ALEXANDER STATISS discriminatory conduct.
JURISDICTION AND VENUE

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 2 of 15 PageID #: 2

1.

The jurisdiction of this Court is invoked pursuant to the Civil Rights Act of 1866, 42

U.S.C. 1981; the Civil Rights Act of 1871, 42 U.S.C. 1983; New York State Executive Law
296, and New York City Administrative Law 8-107.
2.

The unlawful employment practices, violations of plaintiffs statutory rights as an

employee complained of herein were committed within New York and Queens Counties.
PROCEDURAL REQUIREMENTS
3.

Plaintiff has filed suit within the applicable statute of limitations period.
PLAINTIFF

4.

Plaintiff BARRY BROWN a citizen of the United States of America, over twenty-

one (21) years of age, and resident of Kings County, is a former employee of defendant THE CITY
OF NEW YORK (hereinafter referred to as the CITY) more specifically the New York City
Department of Finance Sheriffs Division. For the purposes of this litigation defendant CITY may
be identified interchangeably using CITY or FINANCE to identify the employer which is the CITY.
DEFENDANTS
5.

Defendant CITY is a municipal corporation formed under New York Law and at all

relevant times was Plaintiffs employer, with its central offices in the county of New York, and
diverse other offices and facilities throughout the world.
6.

Defendant DAVID FRANKEL, as Former Commissioner, New York City

Department of Finance.
7.

Defendant BETH E. GOLDMAN, as Former Commissioner, New York City

Department of Finance.
8.

Defendant JACQUES JIHA, as Commissioner, New York City Department of

Finance.

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 3 of 15 PageID #: 3

9.

Defendant ELOISE M. ARCHIBALD, as Director of Psychological Services, Police

Department City of New York.

10.

Defendant FRANK P. PESALE, as Psychologist Level 1.

11.

Defendant ALEXANDER STATIS, as Psychologist Level 1.

BACKGROUND

12.

Plaintiff self identifies as an African-American male.

13.

Plaintiff is a former employee of the New York City Department of Finance

Sheriffs Division, employed as a Deputy Sheriff.

14.

Plaintiff alleges Deputy Sheriffs are peace officers as defined under the New York

State Criminal Procedure Law and authorized to make warrantless arrests, issue summonses,
conduct vehicle stops, carry and use firearms, batons, pepper spray, handcuffs, and use physical
and deadly force.
15.

Plaintiff alleges Deputy Sheriffs in their civil enforcement role are authorized to

enforce parts of the New York State Civil Practice Law and Rules (CPLR).
16.

Plaintiff alleges psychological tests if used objectively can be a vital tool used to

assess an applicants or employees honesty and integrity.

17.

Plaintiff alleges Title VII of the Civil Rights Act of 1964 prohibits psychological

testing designed to, or that has a tendency to, discriminate based upon race.
18.

Plaintiff alleges psychological testing where the administration results in disparate

treatment or disparate impact upon applicants or employees based upon race, violates Title VII
of the Civil Rights Act of 1964.
19.

Plaintiff alleges defendant THE CITY OF NEW YORK as an employer, have a

legal obligation to ensure applicants or employees are afforded a fair opportunity to qualify for

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 4 of 15 PageID #: 4

employment.
20.

Plaintiff alleges defendant THE CITY OF NEW YORK as an employer, knows or

should have known psychological testing requiring analysis by a psychologist is fraught with
subjectivity and implicit bias, thereby creating the opportunity for disparate treatment or
disparate impact upon applicants or employees due to their race.
21.

Plaintiff alleges defendant THE CITY OF NEW YORK as an employer, upon

information and belief, does not review existing psychological testing to ensure they are
statistically valid, reliable and devoid of racial bias.
22.

Plaintiff alleges defendant THE CITY OF NEW YORK as an employer, upon

information and belief, does not administer psychological testing in a standardized manner to
ensure that all job applicants or employees are assessed in the same way.
23.

Plaintiff alleges defendant THE CITY OF NEW YORK as an employer, upon

information and belief, does not monitor test results to ensure theres no disparate treatment or
disparate impact upon applicants or employees due to race.
24.

Plaintiff alleges defendant THE CITY OF NEW YORK as an employer, upon

information and belief, does not monitor workplace statistics on attrition, theft, turnover, and
production to determine whether the use of psychological testing have a disparate treatment or
disparate impact upon applicants or employees due to their race.
25.

Plaintiff alleges in 1978, the United States Equal Employment Opportunity

Commission (EEOC) adopted the Uniform Guidelines on Employee Selection Procedures

(UGESP) under Title VII of the Civil Rights Act of 1964.
26.

Plaintiff alleges the UGESP provides uniform guidance for employers to ensure

their testing and selection procedures are in compliance with Title VII of the Civil Rights Act of

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 5 of 15 PageID #: 5

1964, theory of disparate impact.

27.

Plaintiff alleges the UGESP outline three (3) different methods for employers to

prove their testing and selection procedures are job-related and consistent with business
necessity.
28.

Plaintiff alleges these methods of proving job-relatedness are called test

validation.
29.

Plaintiff alleges defendant THE CITY OF NEW YORK as an employer, upon

information and belief, is not in compliance with the UGESP.

30.

Plaintiff alleges defendant DAVID FRANKEL served as the Commissioner, New

York City Department of Finance from July 29, 2009 through September 24, 2013.
31.

Plaintiff alleges defendant DAVID FRANKEL as the agency head was legally

obligated to ensure the aforementioned procedural safeguards in the hiring and selection process
for Deputy Sheriff, City of New York are in place to ensure all applicants or employees have a
fair opportunity to qualify for employment and failed to do so.
32.

Plaintiff alleges defendant BETH E. GOLDMAN served as the Commissioner,

New York City Department of Finance from September 24, 2013 through April 7, 2014.
33.

Plaintiff alleges defendant BETH E. GOLDMAN as the agency head was legally

obligated to ensure the aforementioned procedural safeguards in the hiring and selection process
for Deputy Sheriff, City of New York are in place to ensure all applicants or employees have a
fair opportunity to qualify for employment and failed to do so.
34.

Plaintiff alleges defendant JACQUES JIHA serves as the Commissioner, New

York City Department of Finance.

35.

Plaintiff alleges defendant JACQUES JIHA as the agency head is legally

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 6 of 15 PageID #: 6

obligated to ensure the aforementioned procedural safeguards in the hiring and selection process
for Deputy Sheriff are in place to ensure all applicants or employees have a fair opportunity to
qualify for employment have failed to do so.
36.

Plaintiff alleges in or around February 1997, he graduated from Baruch College

with a Bachelor of Business Administration Degree in Finance.

37.

Plaintiff alleges from June 4, 1991 through January 28, 1999 he served and was

honorably discharged from the United States Marine Corps Reserves at the rank of Corporal
(E4).
38.

Plaintiff alleges in or around December 2012 he began the hiring and testing

process for the position of Deputy Sheriff, City of New York, Examination No.: 3021.
39.

Plaintiff alleges in or around February 19, 2013, he completed and successfully

qualified on the written examination, physical examination and physical fitness test.
40.

Plaintiff alleges on or about February 19, 2013, he entered the New York City

Sheriffs Academy.
41.

Plaintiff alleges the class consisted of 15 deputy sheriff candidates: 5 Blacks or

African-American, 7 White or Caucasian, 2 Hispanic and 1 Asian.

42.

Plaintiff alleges 1/3 or thirty-three (33) percent of the class is Black or African-

American.
43.

Plaintiff alleges defendant ELOISE M. ARCHIBALD supervises the entire staff

of Psychological Services, in particular, responsible for candidate evaluations.

44.

Plaintiff alleges on or about February 24, 2013, he was administered the

Minnesota Multiphasic Personality Inventory aka MMPI-2.

45.

Plaintiff alleges the MMPI-2 was specifically designed for assessing

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 7 of 15 PageID #: 7

psychological stability in clinical settings although commonly used to assess applicants of highrisk professions such as airline pilots and police officers.
46.

Plaintiff alleges on or about February 25, 2013, under the direct or indirect

supervision of defendant ELOISE M. ARCHIBALD, he was interviewed by defendant FRANK

P. PESALE.
47.

Plaintiff alleges on or about March 22, 2013 under the direct or indirect

supervision of ELOISE M. ARCHIBALD, defendant FRANK P. PESALE determined there is

sufficient evidence to warrant finding him psychologically unsuitable for the position of Deputy
Sheriff.
48.

Plaintiff alleges defendant FRANK P. PESALE further determined his history of

functioning raises sufficient concern about his coping skills, stress tolerance and interpersonal
skills to warrant disqualification.
49.

Plaintiff alleges on or about March 29, 2013 he successfully completed the Basic

Course for Peace Officers in accordance with the guidelines of the New York State Division of
Criminal Justice Services Municipal Police Training Council.
50.

Plaintiff alleges on or about April 26, 2013 he successfully completed the Initial

Course in Firearms and Deadly Physical Force in accordance with the guidelines of the New
York State Division of Criminal Justice Services Municipal Police Training Council.
51.

Plaintiff alleges on or about May 13, 2013, he was terminated.

52.

Plaintiff alleges his termination was based upon the racially biased psychological

evaluations under the direct or indirect supervision of defendant ELOISE M. ARCHIBALD and
FRANK P. PESALE.
53.

Plaintiff alleges under the direct or indirect supervision of defendant ELOISE M.

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 8 of 15 PageID #: 8

ARCHIBALD, the entire pool, one hundred (100) percent of Black or African-American
candidates were psychologically disqualified.
54.

Plaintiff alleges under the direct or indirect supervision of defendant ELOISE M.

ARCHIBALD, sixty (60) percent of the pool of Black or African-American psychologically

disqualified candidates went onto become members of other law enforcement agencies including
the New Jersey State Police.
55.

Plaintiff alleges under the direct or indirect supervision of defendant ELOISE M.

ARCHIBALD, the entire pool, one hundred (100) percent of Black or African-American
candidates were equally qualified or more qualified than the Caucasian or White candidates but,
were evaluated differently.
56.

Plaintiff alleges Blacks or African-American candidates under the direct or

indirect supervision of defendant ELOISE M. ARCHIBALD are more likely than Caucasian or
White candidates to have their Psychological Disqualification Summarys documented to read:
exercises poor judgment, poor credibility and failure to take responsibility for past problematic
behavior although they had similar backgrounds.
57.

Plaintiff alleges under the direct or indirect supervision of defendant ELOISE M.

ARCHIBALD, the Caucasian or White candidates were re-evaluated at the same rate or higher
than the Black or African-American candidates but, were not disqualified.
58.

Plaintiff alleges under the direct or indirect supervision of defendant ELOISE M.

ARCHIBALD, the entire pool, one hundred (100) percent of Caucasian or White candidates
although equally qualified or less qualified than Black or African-American candidates were not
disqualified.
59.

Plaintiff alleges shortly thereafter, he hired Dr. Robert Daley, Ph.D., an outside

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 9 of 15 PageID #: 9

consultant and former Director of Psychological Services, Police Department City of New York
to assess his suitability for the position of Deputy Sheriff, New York City Department of
Finance.
60.

Plaintiff alleges Dr. Robert Daley, Ph.D., assessed him on three (3) separate

occasions: June 26, July 24 and December 17, 2013.

61.

Plaintiff alleges on or about December 31, 2013, Dr. Robert Daley, Ph.D.,

concluded nothing in the history or clinical examinations supports the negative conclusions
drawn by the police departments examiner concerning Mr. Browns coping skills, stress
tolerance or interpersonal skills. In the opinion of the undersigned, Mr. Brown is fully mentally
competent and a suitable candidate for employment as a deputy sheriff.
62.

Plaintiff alleges after an administrative error by the New York City Department of

Finance issuing a Notice of Proposed Disqualification, the New York City Civil Service
Commission determined the equitable thing to do was to re-evaluate him.
63.

Plaintiff alleges sometime after, he was administered another MMPI-2.

64.

Plaintiff alleges on or about June 9, 2015 under the direct or indirect supervision

of defendant ELOISE M. ARCHIBALD, he was interviewed by defendant ALEXANDER

STRATIS.
65.

Plaintiff alleges on or about August 25, 2015 under the direct or indirect

supervision of ELOISE M. ARCHIBALD, defendant ALEXANDER STRATIS supported

defendant FRANK P. PESALES previous determination, concluding there is sufficient evidence
to warrant finding him psychologically unsuitable for the position of Deputy Sheriff.
66.

Plaintiff alleges on or about November 4, 2015 the New York City Civil Service

Commission conducted a discretionary hearing.

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 10 of 15 PageID #: 10

67.

Plaintiff alleges on or about November 5, 2015 he received another Notice of

Proposed Disqualification from the New York City Department of Finance.

68.

Plaintiff alleges his Notice of Proposed Disqualification was based upon the

racially biased psychological evaluations under the direct or indirect supervision of ELOISE M.
ARCHIBALD; FRANK P. PESALE and ALEXANDER STRATIS.
69.

Plaintiff alleges on or about November 6, 2015 he submitted more written

documents to re-but the psychological evaluations.

70.

Plaintiff alleges on or about February 19, 2016, the New York City Civil Service

Commission affirmed his disqualification along racial lines.

71.

Plaintiff alleges Commissioners Nancy G. Chaffetz and Charles D. McFaul voted

to affirm despite their pointed questioning about the veracity of the psychological assessments.
72.

Plaintiff alleges Commissioner Rudy Washington voted to reverse the New York

City Department of Finances determination and find him qualified for the position of Deputy
Sheriff after his pointed questioning about the veracity of the psychological assessments.
73.

Plaintiff alleges there are no perfect candidates but, defendants THE CITY OF

NEW YORK; DAVID FRANKEL; BETH E. GOLDMAN; JACQUES JIHA; ELOISE M.

ARCHIBALD; FRANK P. PESALE and ALEXANDER STATIS treat candidates differently
due to their race.
74.

Plaintiff alleges defendants THE CITY OF NEW YORK; DAVID FRANKEL;

BETH E. GOLDMAN; JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and

ALEXANDER STATISS collective conduct caused him to sustain injuries due to disparate
treatment and disparate impact during the hiring and selection process for Deputy Sheriff, City of
New York in violation of the Civil Rights Act of 1866, $2 U.S.C. 1981; the Civil Rights Act of

10

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 11 of 15 PageID #: 11

1871, 42 U.S.C. 1983; New York State Executive Law 296 and New York City
Administrative Code 8-107.
VIOLATIONS AND CLAIMS ALLEGED
COUNT I
RACE DISCRIMINATION
IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1866, 42 U.S.C. 1981
75.

Plaintiff re-alleges Paragraphs 1 through 74 and incorporates them by reference as

Paragraphs 1 through 74 of Count I of this Complaint.

76.

Plaintiff alleges the discriminatory acts and omissions of defendants THE CITY

OF NEW YORK; DAVID FRANKEL; BETH E. GOLDMAN; JACQUES JIHA; ELOISE M.

ARCHIBALD; FRANK P. PESALE and ALEXANDER STATIS interfered with his right to
enforce contracts under the color of state law because of his race.
77.

Plaintiff alleges as a result of the aforesaid acts, depriving him of his civil rights,

he suffered mental anguish, emotional distress, and loss of employment opportunities.

COUNT II
MONELL CLAIM
IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1871, 42 U.S.C. 1983
78.

Plaintiff re-alleges Paragraphs 1 through 77 and incorporates them by reference as

Paragraphs 1 through 77 of Count II of this Complaint.

79.

Plaintiff alleges defendant THE CITY OF NEW YORK caused his injuries.

80.

Plaintiff alleges defendant THE CITY OF NEW YORKS actions were taken

under color of law.

81.

Plaintiff alleges defendant THE CITY OF NEW YORK deprived him of his

constitutional and statutory rights.

11

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 12 of 15 PageID #: 12

82.

Plaintiff alleges defendant THE CITY OF NEW YORKS actions are causally

related to his injuries.

83.

Plaintiff alleges as a result of defendant THE CITY OF NEW YORKS actions he

is damaged.
84.

Plaintiff alleges official policies of the NYPD Psychological Services Unit,

adopted by defendant THE CITY OF NEW YORK and the New York City Department of
Finance used to evaluate law enforcement candidates caused his constitutional and statutory
injuries.
COUNT III
RACE DISCRIMINATION
IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1871, 42 U.S.C. 1983
85.

Plaintiff re-alleges Paragraphs 1 through 84 and incorporates them by reference as

Paragraphs 1 through 84 of Count III of this Complaint.

86.

Plaintiff alleges defendants THE CITY OF NEW YORK; DAVID FRANKEL;

BETH E. GOLDMAN; JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and

ALEXANDER STATIS under color of law, personally interfered with and deprived him of his
constitutional rights because of his race.
87.

Plaintiff alleges defendants THE CITY OF NEW YORK; DAVID FRANKEL;

BETH E. GOLDMAN; JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and

ALEXANDER STATIS in acting to deprive him of his rights, acted intentionally, knowingly,
willfully, and with gross disregard of his rights.
88.

Plaintiff alleges defendants THE CITY OF NEW YORK; DAVID FRANKEL;

BETH E. GOLDMAN; JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and

ALEXANDER STATIS under color of law, caused him to suffer emotional distress, monetary

12

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 13 of 15 PageID #: 13

damage, and incurred medical and legal expenses, and out of pocket expenses for telephone,
postage, and other costs of pursuing the claims herein.
COUNT IV
RACE DISCRIMINATION
IN VIOLATION OF
NEW YORK STATE EXECUTIVE LAW 296
89.

Plaintiff re-alleges Paragraphs 1 through 88 and incorporates them by reference as

Paragraphs 1 through 88 of Count IV of this Complaint.

90.

Plaintiff alleges defendants THE CITY OF NEW YORK; DAVID FRANKEL;

BETH E. GOLDMAN; JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and

ALEXANDER STATIS discriminated against him because of his race.
91.

Plaintiff alleges he is within the protected class.

92.

Plaintiff alleges he is qualified for the position.

93.

Plaintiff alleges he was subjected to an adverse employment action.

94.

Plaintiff alleges the adverse employment action occurred under circumstances

giving rise to an inference of discrimination.

95.

Plaintiff alleges defendants THE CITY OF NEW YORK; DAVID FRANKEL;

BETH E. GOLDMAN; JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and

ALEXANDER STATISS violations caused him mental anguish, emotional distress, and loss of
employment opportunities.
COUNT V
RACE DISCRIMINATION
IN VIOLATION OF
NEW YORK CITY ADMINISTRATIVE CODE 8-107
96.

Plaintiff re-alleges Paragraphs 1 through 95 and incorporates them by reference as

Paragraphs 1 through 95 of Count V of this Complaint.

13

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 14 of 15 PageID #: 14

97.

Plaintiff alleges defendants THE CITY OF NEW YORK; DAVID FRANKEL;

BETH E. GOLDMAN; JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and

ALEXANDER STATIS discriminated against him because of his race.
98.

Plaintiff alleges he is within the protected class.

99.

Plaintiff alleges he is qualified for the position.

100.

Plaintiff alleges he was subjected to an adverse employment action.

101.

Plaintiff alleges the adverse employment action occurred under circumstances

giving rise to an inference of discrimination.

102.

Plaintiff alleges defendants THE CITY OF NEW YORK; DAVID FRANKEL;

BETH E. GOLDMAN; JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and

ALEXANDER STATISS violations caused his mental anguish, emotional distress, and loss of
employment opportunities.
JURY TRIAL
103.

Plaintiff demands a trial by jury of all issues in this action that are so triable.

14

Case 1:16-cv-01106 Document 1 Filed 03/05/16 Page 15 of 15 PageID #: 15

PRAYER FOR RELIEF

Wherefore, plaintiff demands compensatory and punitive damages from
defendants THE CITY OF NEW YORK; DAVID FRANKEL; BETH E. GOLDMAN;
JACQUES JIHA; ELOISE M. ARCHIBALD; FRANK P. PESALE and ALEXANDER STATIS
plus any and all available statutory remedies, both legal and equitable, and interests and costs.
Dated: March 5, 2016
New York, NY
Respectfully submitted,

By:

__________s_______________
Eric Sanders

Eric Sanders, Esq.

THE SANDERS FIRM, P.C.
230 Park Avenue, Suite 1000
New York, NY 10169
(212) 808-6515 (Business Telephone)
(212) 729-3062 (Facsimile)
Website: http://www.thesandersfirmpc.com

15