359 F.3d 83 (2nd Cir. 2004), 02-6102(L), United States v. City of New York

Docket Nº:02-6102(L), 02-6112(L), 02-6122, 02-6124, 02-6126, 02-7405(CON).
Citation:359 F.3d 83
Party Name:UNITED STATES of America, Norma Colon, Plaintiffs-Appellants, Maria E. Gonzalez, Tammy Auer, Theresa Caldwell-Benjamin, Intervenors-Plaintiffs-Appellants, v. CITY OF NEW YORK, Jason Turner, individually and in his capacity as Commissioner of the New York City Human Resources Administration, George Santiago, in his individual capacity, Defendants-Ap
Case Date:February 13, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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359 F.3d 83 (2nd Cir. 2004)

UNITED STATES of America, Norma Colon, Plaintiffs-Appellants,

Maria E. Gonzalez, Tammy Auer, Theresa Caldwell-Benjamin, Intervenors-Plaintiffs-Appellants,


CITY OF NEW YORK, Jason Turner, individually and in his capacity as Commissioner of the New York City Human Resources Administration, George Santiago, in his individual capacity, Defendants-Appellees.

Nos. 02-6102(L), 02-6112(L), 02-6122, 02-6124, 02-6126, 02-7405(CON).

United States Court of Appeals, Second Circuit

February 13, 2004

Argued: Feb. 5, 2003.

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Sarah S. Normand, Assistant United States Attorney (James B. Comey, United States Attorney for the Southern District of New York, Neil M. Corwin and Jeffrey S. Oestericher, Assistant United States Attorneys, on the brief), New York, NY, for Plaintiff-Appellant United States.

Timothy J. Casey, Now Legal Defense and Education Fund (Jennifer K. Brown and Yolanda S. Wu, Now Legal Defense and Education Fund; Marc Cohan and Anne Pearson, Welfare Law Center, on the brief), New York, NY, for Plaintiff-Appellant Norma Colon.

Timothy J. Casey, Now Legal Defense and Education Fund, New York, N.Y. (Jennifer K. Brown and Yolanda S. Wu, Now Legal Defense and Education Fund, and Daniel D. Leddy, Staten Island, NY, on the brief) for Intervenor-Plaintiff-Appellant Tammy Auer.

Mordecai Newman, Assistant Corporation Counsel for the City of New York (Michael A. Cardozo, Corporation Counsel, and Larry A. Sonnenshein and Marilyn Richter, Assistant Corporation Counsels, on the brief), New York, NY, for Defendants-Appellees.

Juan Cartagena, Risa E. Kaufman, Community Service Society of New York, New York, NY; Elaine R. Jones, Director-Counsel, Norman J. Chachkin, James L. Cott, Elise C. Boddie, NAACP Legal Defense & Educational Fund, Inc., New York, N.Y. for Amici Curiae, NAACP Legal Defense and Educational Fund, Inc., Community Service Society of New York, and Puerto Rican Legal Defense and Education Fund.

Catherine K. Ruckelshaus, Noah D. Zatz, National Employment Law Project, New York, NY; Jonathan P. Hiatt, Lynn Rhinehart, American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO"); Judith L. Lichtman, Jocelyn C. Frye, National Partnership for Women & Families, Washington, D.C., for Amici Curiae AFL-CIO, New York State AFL-CIO, Lawyers' Committee for Civil Rights Under Law, Mexican-American Legal Defense and Educational Fund, National Asian Pacific American Legal Consortium, National Employment Law Project, National Partnership for Women & Families, National Women's Law Center, National Workrights Institute, and Women Employed.

Before: JACOBS and POOLER, Circuit Judges, GLEESON, District Judge.[*]

POOLER, Circuit Judge.

We are asked to determine whether welfare recipients obliged to participate in New York City's Work Experience Program ("WEP") are employees within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and thus entitled to Title VII's protections

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against sexual and racial harassment. Applying this circuit's test for the existence of an employer-employee relationship, we conclude that the district court erred by finding as a matter of law on a Rule 12(b)(6) motion that plaintiffs are not employees. We also conclude that the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which requires participation in certain work activities including programs like WEP as a condition of the receipt of welfare benefits, does not evince an intent to deprive these workers of Title VII's civil rights protections. Our conclusion accords with the conclusions reached by the federal agencies charged with enforcing Title VII and PRWORA. We therefore vacate the judgment and remand for further proceedings.


The Statutory Framework of the Work Experience Program

In 1996, Congress enacted, and the president signed, PRWORA. This act ended the previous program for providing assistance to needy families, Aid to Families With Dependent Children ("AFDC"), and authorized a new and time-limited program, Temporary Assistance to Needy Families ("TANF").

The purpose of the new program is "to increase the flexibility of States in operating a program designed to" meet certain goals including "end[ing] the dependence of needy parents on government benefits by promoting job preparation, work, and marriage." 42 U.S.C. § 601(a). As a condition of receiving TANF grants, states must ensure that certain percentages of families participate in work activities. 42 U.S.C. § 607(a). "Work activities" include: unsubsidized employment; subsidized private sector employment; subsidized public sector employment; work experience; on-the-job training; job search and job readiness assistance; community service programs; vocational education; job skills training; education related to employment (for individuals without high school degrees or high school equivalency certificates); secondary school attendance or study leading to an equivalency certificate; and provision of child care services for individuals participating in community service programs. 42 U.S.C. § 607(d)(1)-(12). When an individual refuses to participate in a work activity, PRWORA requires the state to "(A) reduce the amount of assistance otherwise payable to the family pro rata (or more, at the option of the State)...; or (B) terminate such assistance, subject to such good cause and other exceptions as the State may establish." 42 U.S.C. § 607(e)(1). Section 608(c) provides that such a reduction "shall not be construed to be a reduction in any wage paid to the individual."

PRWORA also provides under the caption, "Nondiscrimination provisions":

The following provisions of law shall apply to any program or activity which receives funds provided under this part:

(1) the Age Discrimination Act of 1975, (42 U.S.C. 6101 et seq.)

(2) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794).

(3) The Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.)

(4) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)

42 U.S.C. § 608(d).

Finally, PRWORA limits federal enforcement authority as follows: "No officer or employee of the Federal Government may regulate the conduct of States under this part or enforce any provision of this part, except to the extent expressly provided in this part." 42 U.S.C. § 617.

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New York has implemented PRWORA through Chapter 55 of the Social Services Law. However, New York's work requirements apply not only to families with children, as does TANF--the federal welfare program created by PRWORA--but also to households without dependent children that consequently receive only state funding. N.Y. Soc. Serv. L. § 335-b(1). A recipient who refuses to engage in a work activity incurs a pro rata reduction of his household's grant. NY Soc. Serv. L. § 342(2), (3).

As an alternative to other "work activities" authorized by PRWORA and by state statute, New York social services districts may require recipients of public assistance to participate in "work experience in the public sector or non-profit sector." N.Y. Soc. Serv. L. § 336(1)(d). In order to calculate the number of hours a recipient may be required to participate in a work experience activity, New York divides the amount of assistance payable to the recipient including food stamps by the higher of the federal minimum wage or the state minimum wage. N.Y. Soc. Serv. L. § 336-c(2)(b). In addition, New York human resource agencies can assign recipients to a given task only if they are "provided appropriate workers' compensation or equivalent protection for on-the-job injuries and tort claims protection on the same basis, but not necessarily at the same benefit level, as they are provided to other persons in the same or similar positions," and "the project to which the participant is assigned serves a useful public purpose." N.Y. Soc. Serv. L. § 336-c(2)(c) & (d). WEP participants also receive authorized child care expenses and transportation expenses.

Plaintiffs' Allegations

Because a Rule 12(b)(6) motion tests only the adequacy of the complaint, we summarize plaintiffs' claims in some detail. See Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001).

Tammy Auer

In January 1997, New York City's Human Resources Administration ("HRA") assigned Tammy Auer to do general office work at the City's Sanitation Department. Auer's supervisor, James Soto, immediately began to make inappropriate, sexually charged comments to Auer. He also asked her to move in with him and told her that they could make a beautiful baby. Each day Soto asked Auer to come into his office, instructed her to turn around, and then commented on her appearance.

During spring 1998, Soto escalated his behavior to inappropriate touching. Not only did Soto ignore Auer's objections, but he also warned her that he could terminate her WEP assignment. Auer complained to the Sanitation Department's Staten Island borough commissioner, who took no action. After she complained to the department's Manhattan office, she was transferred to a different facility. However, Soto, who continued to have supervisory responsibility for Auer, went to her new work site and screamed at her. He also instructed Auer's immediate supervisor not to give her any work to do. Shortly thereafter Auer quit because of the way she had been treated. She filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC"), which after finding reasonable cause to believe her allegations were true, referred her charge to the United States Department of Justice ("DOJ"). See 42 U.S.C. §...

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