Second Circuit Affirms Dismissal of Discrimination, Constructive Discharge, and Hostile Work Environment Claims

In a recent Summary Order the Second Circuit, in Dowrich-Weeks v. Cooper Sq. Realty, affirmed the dismissal of plaintiff-appellant’s discrimination, constructive discharge, and hostile work environment claims.  This case illustrates, by negative example, what an employment discrimination plaintiff must allege to survive a motion to dismiss.

Discrimination – No “Adverse Action”

The court found that plaintiff failed to establish an “adverse action” sufficient to support a prima facie case of discrimination.

Plaintiff alleged that she endured the following adverse employment actions:

(1) A Cooper Square vice-president made negative remarks about her to a client; (2) Weeks was moved from an office to a cubicle; (3) Weeks was not permitted to take advantage of an alternative work schedule that allowed periodic work from home; and (4) Weeks was “demoted” from “Residential Manager” with oversight responsibilities over four-to-five residential properties to “On–Site Property Manager” with oversight responsibilities over only one property.

“None of the first three actions constitutes a materially adverse change in the terms and conditions of employment because such actions must be more disruptive than a mere [in]convenience or an alteration of job responsibilities.”

Plaintiff also alleged no facts supporting her claim of “demotion”, such as her “having received a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.”

The court thus found that plaintiff failed to “allege that she suffered a materially adverse employment action” under Title VII and the New York State Human Rights Law, and affirmed the dismissal of her discrimination claims under those statutes.

The court also affirmed the dismissal of her claims under the New York City Human Rights Law, even though the NYCHRL does not require a plaintiff to show that the alleged adverse employment actions were “material.” Specifically, plaintiff “did not allege facts giving rise to a plausible inference that the adverse employment actions she endured were motivated by discriminatory animus or that Cooper Square even considered her status as a pregnant woman in taking the challenged actions.”

Constructive Discharge

“Constructive discharge of an employee,” explained the court, “occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily.”

Furthermore:

[A] constructive discharge cannot be proven merely by evidence that an employee disagreed with the employer’s criticisms of the quality of [her] work, or did not receive a raise, or preferred not to continue working for that employer. Nor is the test merely whether the employee’s working conditions were difficult or unpleasant. … Rather, a plaintiff may prove a constructive discharge by establishing that [her] ‘employer, rather than acting directly, deliberately made [her] working conditions so intolerable that [s]he was forced into an involuntary resignation, i.e., so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.

Plaintiff’s allegations did not pass muster under this standard; the court cited a number of cases in which the courts, on similar facts, found no constructive discharge. (For example, denial of an office and telephone, alleged unfair criticism of one’s work, and dissatisfaction with the nature of one’s assignments, standing alone, do not establish constructive discharge.)

In addition, plaintiff’s “claim of constructive discharge is undermined by the allegation in her complaint that she did not resign because of conditions at her workplace, but rather because she could not arrange for childcare for five days a week.”

Hostile Work Environment

Plaintiff’s federal hostile work environment claim was based on 42 U.S.C. § 1981, which protects against race discrimination.

The law provides:

To state a claim for a hostile work environment under federal law, a plaintiff must show that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s [protected characteristic]. … In order to prevail on a hostile work environment claim, a plaintiff must first show that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. … Proving the existence of a hostile work environment involves showing both objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive. … The plaintiff carries the burden of showing … that the harassment she faced was rooted in [plaintiff’s protected characteristic].

The court found that plaintiff’s “hostile work environment claim fails for many of the same reasons as her constructive discharge and discrimination claims.”

In addition, “[c]onduct alleged to have created a hostile work environment must be more than episodic; [it] must be sufficiently continuous and concerted in order to be deemed pervasive.” Plaintiff’s allegations “consist of several isolated incidents over the course of a two-year period that do not rise to the level of frequency or severity necessary to establish a hostile work environment claim.”

If you have any questions or would like to discuss legal representation regarding any of the above issues, please feel free to contact New York City employment and personal injury attorney Michael J. Pospis today.

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