In Biehner v. City of New York et al, 19-CV-9646, 2021 WL 4924838 (S.D.N.Y. Oct. 20, 2021), the court, inter alia, dismissed plaintiff’s claim of gender/pregnancy discrimination under Title VII of the Civil Rights Act of 1964.
From the decision:
In any event, the plaintiff has not pleaded adequately the other elements required for her gender discrimination and retaliation claims. Her gender discrimination claim is foreclosed because, even assuming the plaintiff is a member of a protected class and was qualified for her job, the plaintiff’s complaint is devoid of any facts that give rise to the suggestion that the DOE decisionmakers were motivated by gender discrimination, including pregnancy discrimination, in their interactions with her. The plaintiff makes no allegations about sexist criticisms or comments, and fails to allege that those outside of her protected class were treated differently from her. Cf. Salas v. N.Y.C. Dep’t of Investigation, 298 F. Supp. 3d 676, 687 (S.D.N.Y. 2018) (“An inference of discrimination can be drawn from circumstances including ‘actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus,’ or ‘preferential treatment given to employees outside the protected class[.]’ ” (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996))). The plaintiff also does not claim that she was replaced by a non-pregnant or male employee. Cf. Mestecky v. N.Y.C. Dep’t of Educ., No. 13-cv-4302, 2018 WL 10509457, at *9 (E.D.N.Y. Mar. 30, 2018), aff’d, 791 F. App’x 236 (2d Cir. 2019). Moreover, because she does not even indicate when she was pregnant, the plaintiff has not pleaded anything suspicious about the temporal proximity between her pregnancy and her being excessed and later resigning. See Rinsler v. Sony Pictures Ent., Inc., No. 02-cv-4096, 2003 WL 22015434, at *6 (S.D.N.Y. Aug. 25, 2003). Accordingly, even accepting as true the plaintiff’s claim that the defendants acted intentionally in bungling her return from maternity leave, there is nothing to support the plaintiff’s allegations that the defendants were motivated by her gender in so acting. The plaintiff has therefore failed to raise a minimal inference of gender discrimination, and her claim must be dismissed.