In Quinones v. City of Binghamton et al, No. 3:19-cv-1460, 2022 WL 43764 (N.D.N.Y. Jan. 5, 2022), the court, inter alia, held that plaintiff sufficiently alleged “adverse action” discrimination, based on race (Hispanic), under 42 U.S.C. 1981. (I discussed the court’s holding that the plaintiff sufficiently alleged a race-based “hostile work environment” here.)
From the decision:
In order to plead a Section 1981 discrimination claim based on an adverse employment action, a plaintiff must show that “(1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (citation omitted); see Pertillar v. AAA W. & Cent. N.Y., No. 5:16-cv-238, 2018 WL 583115, at *7 (N.D.N.Y. Jan. 26, 2018) (“The standards applicable to [the plaintiff’s] Section 1981 claims are the same as those applicable to his Title VII claims.” (citations omitted)).
“As to the first element, an employer discriminates against a plaintiff by taking an adverse employment action against him.” Vega, 801 F.3d at 85. “An adverse employment action is a materially adverse change in the terms and conditions of employment … [that] is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Abboud v. Cty. of Onondaga, N.Y., 341 F. Supp. 3d 164, 179 (N.D.N.Y. 2018) (citation omitted). “Examples of materially adverse changes 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.” Id. (citation omitted). As to the second element, the Supreme Court has recently held that to prevail on a Section 1981 claim, “a plaintiff must initially plead and ultimately prove that, but for race, [he] would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020). As such, it is insufficient to merely plead that race was a motivating factor in the alleged discriminatory action. See id. at 1017-18.
With respect to Quinones’ discrimination claim based on an adverse employment action, he alleges that he is of Hispanic heritage, that he was denied a promotion to Captain despite having “significant experience in grant writing, intelligence, [and] crime prevention,” and, thus, being the most “qualified candidate on the list”; and that he was passed over for the promotion in favor of “a Caucasian who was clearly less qualified … in that he had none of [those] credentials and … had lower test scores.” (Compl. ¶¶ 20-21.) Moreover, he alleges that “but for the discriminatory conduct based on his Hispanic origin,” he “would likely have been further advanced in his career.” (Id. at 1.) As such, although the complaint is far from a model of clarity, Quinones does allege that he is a member of a protected class, that he suffered an adverse employment action when he was denied the promotion, that he was qualified for the promotion, and that, but for his Hispanic heritage, he would have been promoted. (See generally id.)
Accordingly, at this early stage in the litigation, and accepting all of his allegations as true, Quinones has set forth sufficient allegations to maintain a Section 1981 discrimination claim based on an adverse employment action, if only just barely. See Levitant v. City of N.Y. Hum. Res. Admin., 558 F. App’x 26, 29 (2d Cir. 2014) (“It is well-established that a failure to promote is an adverse employment action.” (citation omitted)); Craven v. City of N.Y., No. 19-CV-1486, 2020 WL 2765694, at *5 (S.D.N.Y. May 28, 2020) (denying a motion to dismiss a Section 1981 discrimination claim based on adverse employment actions, and finding that “the allegations of [the plaintiff’s supervisor’s] discriminatory comments and conduct … provide relevant background evidence by shedding light on Defendants’ motivation[, and] … create a mosaic of information supporting an inference of discrimination”).
Accordingly, the court denied defendants’ motion.