Pregnancy Discrimination Claim Against Deloitte Touche Tohmatsu Services Survives Dismissal

In Piscitelli v. Deloitte Touche Tohmatsu Services, Inc., No. 159272/20, 2021 WL 1883632 (N.Y. Sup Ct, New York County May 07, 2021), the court denied defendants’ pre-answer to dismiss plaintiff’s pregnancy discrimination claim asserted under the New York State and City Human Rights Laws.

The court summarized plaintiff’s allegations as follows:

In July 2018, plaintiff was granted a request for emergency family leave for three weeks to care for her husband and her infant child for various medical issues. Plaintiff alleges that after she returned to work, she complained to her new manager, KM, who, along with CM, had from January to June 2018 repeatedly denied her request to work two days from home. Plaintiff claims that KM retaliated by removing her permission to work even one day from home. Plaintiff complained to Human Resources and was granted approval to work two remote days from home per week. Plaintiff alleges that KM further retaliated against her by means to excessive scrutiny and a negative performance assessment.

In February 2019, plaintiff alleges that she was under pressure from KM, and even though she had remaining leave time previously granted to her, she canceled it for fear of losing her employment. At about that time, plaintiff disclosed to KM that she was unexpectantly pregnant with her second child. On February 27, 2019, plaintiff claims that her employment was terminated for pre-textual “performance” issues. Plaintiff maintains that she took pregnancy, maternity and family leave and requested work accommodations under defendant’s applicable pregnancy and family leave policies, that her rights were interfered with, that she was subjected to a hostile work environment and that she was subject to retaliatory action for her complaints to human resources.

Defendants moved to dismiss plaintiff’s claims under CPLR 3211, asserting that plaintiff failed to make out a “pattern and practice” claim. Plaintiff disputed that characterization, arguing that she adequately pled “individual disparate-treatment sex discrimination claims and alleged that the discrimination she personally experienced was part of a pattern or practice of discrimination by Deloitte.”

The court agreed with plaintiff,

who has shown that she was a member of a protected class and that she was qualified for the position she held. Plaintiff alleges in her complaint that she received favorable reviewed from six Deloitte partners and passed her exams for the position she held. Plaintiff’s allegations also satisfy the last two prongs, that she was subject to an adverse employment action and that the action was taken for discriminatory reasons. Plaintiff alleges that after she told her supervisor that she was unexpectantly pregnant with her second child, a week later she was terminated from her employment. On this record, plaintiff alleged the necessary elements of her prima facie cause of action so as to withstand a motion to dismiss.

Additionally, the court rejected defendant’s argument that plaintiff’s first and second causes of action are “pattern and practice” discrimination claims, noting that the complaint’s “allegations involve only the plaintiff and even if there is a ‘pattern and practice’, it is only relevant as to plaintiff’s claims as an alternative method to show disparate treatment.”

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