Reporters Sufficiently Allege Sex and Age Discrimination (Specifically the Existence of “Adverse Employment Actions”) Against Spectrum

In Torre et al v. Charter Communications, Inc. d/b/a Spectrum, 2020 WL 5982684 (S.D.N.Y. October 8, 2020), the court, inter alia, held that plaintiff sufficiently alleged sex and age discrimination claims asserted under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the New York State and City Human Rights Laws.

Defendant did not dispute that plaintiffs’ allegations were sufficient to raise a minimal inference of age and gender discrimination; rather, they principally argued that those claims must be dismissed because plaintiffs did not endure “adverse employment actions” as a matter of law.

As to that point, the court explained in detail:

An adverse employment action is a materially adverse change in the terms and conditions of employment. See, e.g., Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008). To meet that standard, an action must be more disruptive than “a mere inconvenience or an alteration of job responsibilities.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (quoting Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006)). That is, an adverse employment action is material only if it is “of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Albuja v. Nat’l Broad. Co. Universal, 851 F. Supp. 2d 599, 606 (S.D.N.Y. 2012) (quoting Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997)). A plaintiff can show this by presenting an employment action that “effected the deprivation of ‘some “tangible job benefits” such as “compensation, terms, conditions, or privileges” of employment.’ ” Id. (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)). Courts have emphasized, however, that “[t]here is no bright-line rule as to what constitutes a ‘materially adverse change,’ and courts must review the circumstances of each case to determine whether a challenged employment action is sufficiently significant to serve as the basis for a claim of discrimination.” Durick v. N.Y.C. Dep’t of Educ., 202 F. Supp. 3d 277, 287 (E.D.N.Y. 2016).

Measured against these standards, Plaintiffs’ claims cannot be dismissed as a matter of law. Contrary to Charter’s contentions, in the unique circumstances of a broadcast news channel, relegating a senior reporter to an inferior studio, reducing her on-air time, and depriving her of services needed to produce a quality news show constitute an adverse employment action. In arguing otherwise, Charter relies on MacAlister v. Millenium Hotels & Resorts, No. 17-CV-6189 (ER), 2018 WL 5886440 (S.D.N.Y. Nov. 8, 2018). See Def.’s Mem. 6. But MacAlister is easily distinguishable. As Plaintiffs more convincingly argue, for example, Torre’s reassignment to Studio B was “accompanied by a loss of status, and a ‘clouding of responsibilities,’ ” that, together with the reduction in on-air time, “can be materially adverse” given its likely effect on her show’s viewership and ratings. MacAlister, 2018 WL 5886440, at *4 (quoting Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997)); see also, e.g., Collins v. Illinois, 830 F.2d 692, 704 (7th Cir. 1987) (holding that the denial of an office and telephone, combined with reduced visibility and a change in assignments from consulting to reference work, amounted to an adverse employment action). Even Charter seems to acknowledge that production quality and viewership may influence how much a reporter earns. See Def.’s Mem. 22-23. It follows that depriving Torre of a quality studio, reducing her on-air time, and denying her quality production services plausibly amounts to an adverse employment action.

Relatedly, Plaintiffs plausibly allege that they were materially disadvantaged when they were not provided coaching services and were denied opportunities to participate in Charter’s higher visibility shows and promotions. See Pls.’ Opp’n 6, 10, 12. Conspicuously, Charter does not even address Plaintiffs’ arguments regarding coaching support, perhaps because denying an employee the opportunity to attend trainings or receive services that “contribute[ ] significantly to the employee’s professional advancement” does qualify as a materially adverse employment action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006); La Grande v. DeCrescente Distrib. Co., 370 F. App’x 206, 211 (2d Cir. 2010) (summary order). Instead, Charter’s principal contention is that denying Shaughnessy, Ramirez, and Farinacci promotional content and the chance to appear on Around the Boroughs or Mornings on 1 were “trivial” harms. Def.’s Mem. 7-11. But changes in assignments or work duties may constitute an adverse employment action if the changes are accompanied by a decrease in salary or work hours, or another significant detrimental effect. See Brown v. Snow, No. 02-CV-7985 (GEL), 2006 WL 623594, at *5 (S.D.N.Y. Mar. 13, 2006) (Lynch, J.), aff’d sub nom. Brown v. Paulson, 236 F. App’x 654 (2d Cir. 2007) (summary order). Moreover, beyond dissatisfaction with one’s assignments, failure to assign an employee to temporary responsibilities may be an adverse employment action where, as here, Plaintiffs allege that the temporary assignment came with tangible, not speculative, benefits. See Petrosino v. Bell Atl., 385 F.3d 210, 225-26 (2d Cir. 2004) (internal quotation marks omitted)); cf. Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (refusing to allow an employee to compete for a position may be an adverse employment action). Specifically, Plaintiffs allege that Charter, in only considering younger talent and men for high-visibility roles, effectively denied Plaintiffs the opportunity to compete for career-advancing exposure. More than merely suffering reputational harm, Plaintiffs plausibly allege that this decreased visibility — and other reductions in their on-air time — naturally led to a decrease in tangible benefits, namely the possibility of further advancement.

On this basis, the court held that plaintiffs’ sex and age discrimination claims are sufficient to survive defendant’s motion to dismiss.

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