Gender Discrimination Claim, Based on Denial of Assignment, Dismissed

In Erno v. New York State Office of Information Technology Services, 2020 WL 2736563 (N.D.N.Y. May 26, 2020), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s gender discrimination claim, based on her alleged denial of a desired assignment.

The court explained the contours of an “adverse employment action” in this context:

An adverse employment action is “a materially adverse change in the terms and conditions of employment.” Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004). “To be materially adverse, a change in working conditions must be ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’ ” Id. (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)). Such a change generally “include[s] 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.” Id. Adverse actions have also been interpreted to include “the denial of professional training opportunities …, but only where an employee can show material harm from the denial, such as a failure to promote or loss of career advancement opportunities.”

Applying the law, the court explained:

Here, Plaintiff alleges that she was denied the opportunity “to assist with a high profile project,” which is essentially a claim that she was denied training or advancement opportunities. (Dkt. No. 1, pp. 17–19). Specifically, Plaintiff claims that she did not get the assignment despite her interest, qualifications, and communications with the project’s supervisor. (Id., pp. 17–18).

Even accepting these allegations as true, they are not sufficient to plausibly allege an adverse employment action by Defendant. Courts in this Circuit have frequently held that “[t]he fact that an employee does not receive a desired or requested employment assignment alone does not constitute adverse action.” Kane v. City of Ithaca, No. 18-CV-0074, 2018 WL 3730172, at *6, 2018 U.S. Dist. LEXIS 131457, at *16–17 (N.D.N.Y. Aug. 6, 2018) (collecting cases). Notably, there is no allegation that Plaintiff’s employment conditions were affected when she did not get the desired assignment. Nor does Plaintiff allege any facts to support her speculation that the assignment could have led to career advancement opportunities. Indeed, Plaintiff does not allege that her assignment to that position would have brought about any material change in her employment, such as a change in title, level of responsibility, or compensation. (Id.).

*7 Accordingly, Plaintiff’s allegations that she was denied a desired assignment do not plausibly allege an adverse employment action to support her gender discrimination claim.

The court also held that plaintiff failed to state a gender discrimination claim because she did not plausibly suggest an inference of discriminatory intent.

For example, while plaintiff “appears to allege gender animus on the basis that her male colleagues received more favorable treatment”, she “does not allege any facts to support this theory” and did not allege “that the desired project was assigned to a man, so the Court cannot infer that Plaintiff was treated differently because of her gender.”

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