Discrimination Claim Dismissed; “Less Desirable Shifts” Did Not Constitute an “Adverse Employment Action”

In Benedetto v. New York State Office of Children and Family Services, 2020 WL 4049945 (N.D.N.Y. July 20, 2020), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s disparate treatment gender discrimination claim, on the ground that plaintiff did not suffer an “adverse employment action.” (The court also denied defendant’s motion to dismiss plaintiff’s hostile work environment claims.)

The court summarized the now well-established black-letter law:

To establish a prima facie case of employment discrimination under Title VII, a plaintiff must show that (1) [s]he is a member of a protected class; (2) [s]he was qualified for the position [s]he held; (3) [s]he suffered an adverse employment action; and (4) the adverse employment action took place under circumstances giving rise to an inference of discrimination. … However, to survive a motion to dismiss, plaintiffs alleging employment discrimination need not plead a prima facie case. … Rather, an employment discrimination complaint must include only a short plain statement of the claim … [that] give[s] the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. … Even though Plaintiff need not plead a prima facie case, the elements of a prima facie case ‘provide an outline of what is necessary to render a plaintiff’s … claims for relief plausible. [Internal quotation marks and citations omitted.]

The first two elements of plaintiff’s prima facie case were not at issue. As to the third element – “adverse employment action” – the court explained:

To qualify as an adverse employment action, an action must cause a materially adverse change in the terms and conditions of the employment. … To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of such a change 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. [Internal quotation marks and citations omitted.]

Applying the law, the court concluded:

Under the third prong, Plaintiff appears to argue that the adverse employment action is receiving “less desirable shifts.” … Under certain circumstances, the receipt of undesirable assignments may rise to the level of an adverse employment action. … However, as stated above, without a materially adverse change, simply receiving less desirable shifts is not an adverse employment action. … Because Plaintiff has failed to allege facts indicating that her receipt of less desirable shifts constituted a materially adverse change in working conditions, Defendant’s motion to dismiss Plaintiff’s disparate treatment claims under Title VII and NYSHRL is granted. [Internal quotation marks and citations omitted.]

Although the court granted defendant’s motion, it granted – under Federal Rule of Civil Procedure 15(a) – plaintiff leave to amend her pleadings to include additional factual allegations regarding an adverse employment action.

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