Last week in Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, the Southern District of New York held that defendant law firm did not engage in race discrimination against an African American contract attorney. Plaintiff argued that, as an African American attorney, she was given less lucrative work than other non-African American contract attorneys retained by defendant.
Discrimination Claim
Defendants argued that plaintiff did not establish a prima facie case, because she did not experience an “adverse employment action” and the facts did not support an inference of discrimination.
Plaintiff argued that her transfer from one case to another constituted an adverse employment action “because those who remained on the [first] case billed higher hours than she did after her transfer.” The court disagreed:
Plaintiff alleges that she lost hours when Morgan Stanley decided that it would no longer employ Quinn attorneys for first-level review. Plaintiff does not dispute that the decision that resulted in her loss of income was made solely by the client, nor does she dispute Quinn’s representation as to the timing of that client decision (i.e., after her transfer). Rather, she asserts that, because Morgan Stanley continued to use Quinn attorneys to do second-level and privilege review and Riegler had recommended that Plaintiff only be allowed to do first-level review on the case, the initial transfer constituted an adverse employment action. Plaintiff admits that first-level review is not inherently better or worse than second-level or privilege review; an attorney may prefer to do one type of review over another. Because “an employee’s preference for one assignment over another is not actionable,” … and there is no dispute that the decision resulting in Plaintiff’s loss of hours on that job was not anticipated at the time of the transfer and was made by the client, Plaintiff has failed to demonstrate that the Ambac to Morgan Stanley transfer constituted an adverse employment action.
Next, plaintiff attempted to use statistics to show discrimination by alleging that she received less pay than the “average” “non-African American” contract attorney and that she was the victim of discriminatory assignment decisions. The court held that plaintiff “misapprehends the role of statistical evidence in a private, nonclass action, disparate treatment case under Title VII.”
It pointed to the Second Circuit’s decision in Chin v. Port Authority of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012) which held that individual private plaintiffs may not rely on the “pattern or practice” method of establishing discrimination. Rather:
Individual private plaintiffs must prove that they were, individually, the victims of intentional discrimination. Extending the “pattern or practice” method of proof to the nonclass action context would, as the Chin Court noted, “allow nonclass private plaintiffs who have shown a pattern or practice of discrimination . . . to shift the burden to employers to prove that they did not discriminate against a particular individual.” … Such a shift would “conflict with the Supreme Court’s oft-repeated holding in the context of disparate-treatment, private nonclass litigation that `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'”
Thus, since plaintiff failed to identify “any specific assignment decisions, other than those already discussed, that she alleges were the product of intentional discrimination and caused her economic harm” she therefore “failed to proffer evidence from which a fact finder could properly determine that she suffered an adverse employment action attributable to race-based disparate treatment”.
Retaliation Claim
The court also dismissed plaintiff’s retaliation claim. While plaintiff easily showed that she engaged in protected activity by complaining to the firm about racial discrimination, plaintiff failed to show that she suffered an adverse employment action.
First, the court found that plaintiff failed to present sufficient evidence that she suffered an adverse employment action in the form of a “constructive discharge”. Under prevailing law, constructive discharge:
occurs when the employer, rather than discharging [his employee] directly, intentionally creates a work environment so intolerable that the employee is forced to quit involuntarily, but it is not enough to show that the working conditions were merely difficult or unpleasant. … Moreover, [a]n employee who fails to explore alternative avenues offered by her employer before concluding that resignation is the only option cannot make out a claim of constructive discharge.
On the facts of this case, plaintiff’s claim was insufficient to overcome summary judgment:
Plaintiffs proffer is wholly inadequate to raise a fact issue as to whether Quinn intentionally subjected her to an intolerable work environment. She has introduced evidence of a personality conflict between co-workers, focused on a disagreement about scheduling. Plaintiffs email complaint to Riegler centered on her conversation about scheduling issues with Jennison on July 14, 2010, and Jennison’s general level of anger. She did not personally witness any of the incidents in which Jennison allegedly yelled at other attorneys to which she refers in her email. Working with Jennison was likely unpleasant for the Plaintiff, but it does not on this record rise to the level of objectively intolerable. Riegler and Fogler responded promptly after Plaintiffs complaint about her interactions with Jennison, and the next day, July 21, 2010, attempted to address Plaintiffs concerns within the constraints of Quinn’s staffing situation. In the July 21, 2010, meeting, Plaintiff repeated these concerns, and stated that she did not want to work with Jennison. Plaintiff argues that she could have switched places with another attorney, even if there were no open assignments. However, she has not introduced any evidence to contradict Riegler’s statement that all of the contract attorneys were, at that time, working on time-sensitive matters which would have been disrupted by a transfer, and that no alternative placement was available. Riegler could not immediately transfer Plaintiff, but it is undisputed that he offered to help resolve the scheduling conflict by taking over responsibility for scheduling. Plaintiff tendered her resignation before this measure could be put in place, and therefore, cannot claim constructive discharge. Quinn is entitled to summary judgment to the extent Plaintiffs claim is premised on constructive discharge.
Constructive discharge is not, however, the only way to establish an adverse employment action for purposes of establishing a retaliation claim:
A material adverse employment action in the retaliation context is one which would deter a reasonable employee from making or supporting a claim of discrimination. … While [a] retaliation plaintiff need not show that she . . . suffered economic harm, severe humiliation, or threats of violence … it is necessary to separate significant from trivial harms. . . . An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.
Here, plaintiff’s claim failed as well:
The crux of Plaintiffs argument is that she feared for her physical safety when she was around Jennison. Evidence of an objectively dangerous situation can, in some circumstances, be sufficient for such a claim to survive summary judgment. … Plaintiff here has not shown that her fear of Jennison was objectively reasonable, or that a reasonable employee would be dissuaded from reporting discrimination if her supervisors provided her with suggestions and formulated measures to ameliorate the situation in lieu of an immediate transfer. While she may have been uncomfortable when Jennison confronted her about his schedule, Plaintiff has proffered no evidence that Jennison was prone to violence or had a history of violent confrontations, other than her conclusory statements regarding hearsay allegations of verbal abuse by other workers. Although Jennison admitted to once banging on the desk of a sleeping attorney, this does not constitute evidence that he represented a danger to his co-workers. Furthermore, Riegler and Fogler showed a willingness to take practical steps to separate her from Jennison.
Accordingly, the court granted summary judgment dismissing plaintiff’s claim of retaliation.