Lack of “Adverse Employment Action” Dooms Teacher’s Discrimination Claim

In Kunik v. New York City Department of Education et al, 15-CV-9512, 2020 WL 508897 (S.D.N.Y. January 31, 2020), the court, inter alia, dismissed plaintiff’s employment discrimination claims.

The court explained that plaintiff’s claim faltered because she did not present sufficient evidence to establish an “adverse employment action,” which is the third step of the prima facie case under the McDonnell Douglas burden-shifting framework.

As to this element, the court explained:

[A] plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment. An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of materially adverse changes include termination of employment, a demotion evidenced by 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 Second Circuit has held that the assignment of a disproportionately heavy workload can constitute an adverse employment action. [Citations and internal quotation marks omitted.]

Applying the law, the court held that none of the alleged actions taken against her constituted an actionable “adverse employment action.”

For example, the court held that “[p]laintiff fails to cite evidence in the record to establish, or create an issue of fact, that her workload was so burdensome as to constitute a departure from normal academic practice” so as to qualify as an “adverse employment action.”

It also held that the assignment to teach some English courses in addition to English as a Second Language is also not an adverse employment action, noting that “[i]n order to constitute an adverse employment action, it is not enough that defendants[ ] gave plaintiff a subjectively less preferred teaching assignment; the assignment must be materially less prestigious, materially less suited to h[er] skills and expertise, or materially less conducive to career advancement.” Here, although plaintiff did not want to each English, “the assignment itself does not constitute an adverse employment action” since “[t]eaching English is not materially less prestigious, nor was it materially less suited to Plaintiff’s expertise as Plaintiff was licensed to teach English in the City of New York.”

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