FILED: NEW YORK COUNTY CLERK 07/05/ :16 PM INDEX NO /2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/05/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK Index No: COUNTY OF NEW YORK XX JEFFREY WALLACH, on behalf of himself and all other CLASS ACTION similarly situated, COMPLAINT Plaintiff, -against- NEW YORK CITY HEALTH AND HOSPITALS CORPORATION. Defendant XX "Plaintiff' Jeffrey Wallach (hereinafter "Plaintiff"), by his attorneys, Aron Law, PLLC and Fisher Taubenfeld LLP, on behalf of himself and the Class (defined below), alleges against Defendant New York City Health And Hospitals Corporation (hereinafter "Defendant" or "HHC") as follows: PRELIMINARY STATEMENT 1. This action is brought pursuant to New York City Human Rights Law, New York City Administrative Code et seq. ("NYCHRL") by Plaintiff on behalf of himself and all others similarly situated formerly employed managers who were 40 years old or older and terminated by Defendant as managers in and about June Plaintiff is 67 years old and worked for Defendant for 37 years. 3. In and about June 2017, without any notice, Defendant engaged in a mass layoff of approximately 400 managers. Plaintiff was one of the employees terminated. 4. The layoffs targeted older employees. 86.3% of those employees terminated were over the age of 40. I 1 of 10

2 5. Further, HHC terminated a disproportionate percentage of older employees. Although managers under the age of 40 make up 19.6% of the manager workforce, only 13.7% of the managers in that pool who were terminated were under the age of By contrast, managers who are 40 years or older constitute 80.4% of the workforce, yet 86.3% of the terminated employees were 40 years or older. 7. The centralized HHC leadership decided which employees to terminate and chose to terminate specific employees, upon information and belief, because of their age. 8. These terminations were the result of HHC's discriminatory policies, patterns, and/or practices to target older employees. PARTIES 9. Plaintiff is an individual residing in the State of New York who was employed by Defendant. 10. Plaintiff was employed by Defendant for thirty-seven years, at Kings County Hospital. 11. Defendant is a domestic non-for-profit corporation organized under the laws of the State of New York and/or a public benefit corporation created by the New York City Health and Hospitals Corporation Act (L. 1969, C. 1016, eff. May 26, 1969). 12. The Defendant has offices at 125 Worth Street, New York, NY Upon information and belief, at all relevant times Defendant, and its officers, managed the day-to-day operating decisions as they related to Plaintiff's employment and the Class's employment, had the power to hire and fire Plaintiff and the Class, supervised and controlled Plaintiff's and the Class's work schedule or conditions of employment, determined the rate and method of payment to the Plaintiff and the Class, and was responsible for 2 of 10

3 maintaining Plaintiff's and the Class's employment records and had complete control of the alleged activities, which give rise to the claims brought herein. 14. Defendant is an "employer" within the meaning of New York City Administrative Code 8-102(4). 15. At all times material to this case, Defendant has employed at least four employees. JURISDICTION AND VENUE 16. Venue is based upon N.Y.C.P.L.R. 503, 504 and/or 505, because, inter alia, Defendant's principal office is located in New York County. 17. In addition to the fact that Defendant is domiciled within the State, as Defendant transacts business within the state, including maintaining an office within the state, and contracts to supply goods or services in the State, Defendant is subject to this Court's jurisdiction as per CPLR 302(a)(1). 18. As Defendant committed a tortious act that caused injury to a person within the state, Defendant is subject to this Court's jurisdiction as per CPLR 302(a)(2). 19. As Defendant owns, uses or possesses real property situated within the state, Defendant is subject to this Court's jurisdiction as per CPLR 302(a)(4). 20. Plaintiff alleges that there may be additional bases to grant this Court jurisdiction over Defendant. 21. Pursuant to 8-502(c) of the NYCHRL, within ten days of the filing this Complaint with the Court, Plaintiff will serve a copy of this Complaint on the New York City Commission on Human Rights and on the Corporation Counsel for the City of New York. 3 of 10

4 STATEMENT OF FACTS 22. Plaintiff is 67 years old and was employed by Defendant for approximately 37 years. 23. On June 17, 2017, Plaintiff was laid off, along with close to 400 other managers employed by Defendant. 24. Being laid off is an adverse employment action. 25. At all times material to this case, Plaintiff and, all the other managers who were laid off, had been employees of Defendant within the meaning of New York City Administrative Code 8-102(4) and et seq. 26. Plaintiff's work was performed within the five boroughs of New York City. 27. Plaintiff was qualified for his position, as evidenced by having successfully held the position for many years. 28. The managers who were laid off were disproportionately older than Defendant's other managerial employees. 29. The nearly-400 managers laid off by Defendant were disproportionately older than the managers who were allowed to continue working for Defendant. 30. Defendant was aware that the nearly-400 managers who were laid off by Defendant were disproportionately older than the mangers who were allowed to continue working for Defendant. 31. Indeed, as per an age analysis completed by Defendant, although Defendant's managers forty years or older comprised 80.4% of its managers, approximately 86.3% of the laid-off managers were 40 years or older. 4 of 10

5 32. Based on data provided by Defendant in response to a Freedom of Information Law request, 395 management level employees were terminated out of a total of 3,386 such employees. 33. Of the 3,386 management-level employees, 20.2% were between the ages of sixty and seventy years old. Nevertheless, the percentage of terminations from the group of employees who were sixty to seventy years old accounted for 30.1% of the management level terminations, significantly higher than their representative number in the relevant pool. 34. This trend continued in all higher age groups for which data was provided in response to the FOIL request. CLASS ACTION ALLEGATIONS 35. Plaintiff bring his claims as a class action pursuant to CPLR 901, et seq., on behalf of himself and on behalf of the managers who were 40 years or older who were laid off Class" by Defendant on or around June of 2017 ("the Class"). 36. The claims of the Class are the same as or substantially similar to those of Plaintiff, and the Class, like Plaintiff, have been subject to the same unlawful conduct. 37. As a result of Defendant's conduct, Defendant is liable to Plaintiff and the Class for the full amount of any loss suffered by Plaintiff and the Class and any other actual, statutory or other applicable damages. 38. Certification of the Class's claims as a class action is the most efficient and economical means of resolved the questions of law and fact common to Plaintiff's claims and the claims of the Class. 39. Plaintiff has standing to seek such relief because of the adverse effect that Defendant's unlawful conduct has had on him individually and on members of the Class. 5 of 10

6 Without class certification, the same evidence and issues would be subject to re-litigation in a multitude of individual lawsuits with an attendant rise of inconsistent adjudications and conflicting obligations. 40. Certification of the Class is the most efficient and judicious means of presenting the evidence and arguments necessary to resolve such questions for Plaintiff, the Class and Defendant. 41. The Class is so numerous that joinder of all members is impractical. The exact number of the Class is unknown at the present time, but it is estimated that the Class is comprised of approximately 351 members. 42. Plaintiff's claims raise questions of law and fact common to the Class. Among these questions are: a) Did Defendant fire or lay off Plaintiff and the Class due to their age? b) Could Defendant have achieved its objectives without firing or laying off Plaintiff and the Class? c) Did Defendant's June 2017 termination policy disparately impact older employees? d) Did Defendant's June 2017 termination policy treat older employees disparately because of their age? e) Did Defendant maintain a policy and/or practice of terminating older employees through its June 2017 termination policy? f) Did Defendant's action recorded herein violate New York City regulations? 6 of 10

7 43. These common questions of law and fact arise from the same course of events, and each Class member will make similar legal and factual arguments to prove liability. 44. Plaintiff is a member of the Class he seeks to represent. 45. Plaintiff's claims are typical of the claims of the Class. 46. The relief Plaintiff seeks for the unlawful conduct complained of herein is also typical of the relief sought on behalf of the Class. 47. Plaintiff's interests are co-extensive with those of the Class that it seeks to represent. 48. Plaintiff is willing and able to represent the Class fairly and to vigorously pursue their claims in this action. 49. Plaintiff has retained counsel who is qualified and experienced in class actions litigation, and who is able to meet the time and fiscal demands necessary to litigate a class action of this size and complexity. 50. Defendant has acted or refused to act on grounds generally applicable to the Class, making final injunctive and declaratory relief appropriate with respect to the Class. The commons issues of fact and law affecting Plaintiff's claims and those of the Class members, including the common issues identified above, predominate over any issues affecting only individual claims. FIRST CAUSE OF ACTION: VIOLATION OF NEW YORK CITY DISPARATE IMPACT STATUTE: ADMINISTRATIVE CODE OF CITY OF NY Plaintiff realleges and incorporates by reference all the allegations set forth above. 7 of 10

8 52. Defendant's actions had a disparate impact upon older workers, both because specifically managers-who were older than the average employees of Defendant-were laid off (rather than other employees), and because specifically the older managers were laid off. 53. Defendant did not have a legitimate reason for its actions. 54. Defendant's course of action violates New York City Law. 55. Plaintiff requests relief as hereinafter described SECOND CAUSE OF ACTION: VIOLATION OF NEW YORK CITY DISPARATE TREATMENT STATUTE: ADMINISTRATIVE CODE OF CITY OF NY Plaintiff realleges and incorporates by reference all the allegations set forth above. 57. HHC has engaged in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its older employees. Goldman Sachs has intentionally discriminated against Plaintiff and the Class in violation of the NYCHRL by terminating them. 58. The discriminatory acts that constitute HHC's pattern and/or practice of discrimination has occurred within period in this case. 59. HHC set and/or maintained these discriminatory policies, patterns, and/or practices during the liability period within the City of New York, and the discriminatory policies, patterns, and/or practices have had a discriminatory impact on older employees of HHC within the City of New York. 60. As a direct result of HHC's discriminatory policies and/or practices as described above, Plaintiff and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits. 8 of 10

9 61. The foregoing conduct constitutes illegal, intentional discrimination prohibited by the Administrative Code of the City of New York et seq. 62. Plaintiff requests relief as hereinafter described. WHEREFORE, Plaintiff demands judgment: (1) Declare that the practices complained of herein are unlawful under law; (2) Certify this action as a class action pursuant to CPLR 901 et seq.; (3) Designate Plaintiff as representative of the Class; (4) Designate Plaintiff's counsel as counsel of record for the Class; (5) Determine the damages sustained by Plaintiff and the Class as a result of Defendant's unlawful conduct, and award those damages against Defendant and in favor of the Plaintiff and the Class, plus such pre-judgment and post-judgment interest as may be allowed; (6) Award Plaintiff and the class any applicable statutory damages; (7) Award Plaintiff and the Class any and all other applicable damages; (8) An order restoring Plaintiff and the Class to their rightful positions at Defendant, or in lieu of reinstatement, an order for front pay benefits; (9) pay (including interest and benefits) for Plaintiff and the Class; (10) All damages sustained as a result of Defendant's conduct, including damages for emotional distress, humiliation, embarrassment, and anguish, according to proof; (11) Award Plaintiff and the Class their reasonable attorneys' fees and costs; and 9 of 10

10 (12) Grant Plaintiff and the Class such other and further relief that the Court deems just and proper. Dated: Brooklyn, New York July 5, 2018 /s/ Joseph Aron Joseph Aron, Esq. ARON LAW, PLLC th Avenue Brooklyn, NY O:718/ F:718/ Michael Taubenfeld FISHER TAUBENFELD LLP 225 Broadway, Suite 1700 New York, New York O: 212/ F: 212/ ATTORNEYS FOR PLAINTIFF AND THE CLASS I 10 of 10