Santiago v. Dept. of Education illustrates that in an employment discrimination case, the plaintiff must plausibly allege an “adverse employment action.” The quintessential “adverse employment action” is, of course, termination. However, other actions short of termination may qualify.
Plaintiff – an itinerant attendance teacher – alleged disparate treatment and a hostile work environment under the state and city human rights laws due to plaintiff’s gender, race, disability, perceived disability, as well as a violation of her equal protection rights under the state constitution.
She claimed that she unjustifiably received an unsatisfactory rating because she was neither formally or informally observed during the school year, and moreover, there is an absence of comments and supporting documentation for her unsatisfactory rating. She also claimed that she was subjected to disparaging gender-based remarks, such as “you girls are always shopping on DOE time” and “you girls are on another planet.”
The court dismissed plaintiff’s case, under CPLR 3211(a)(7), for failure to state a claim.
Here’s the law, as summarized by the court:
Discrimination claims brought pursuant to the State and City Human Rights Laws are reviewed under a burden-shifting framework. A plaintiff alleging discrimination has the initial burden of establishing, prima facie, that: (1) she was a member of a class protected by the statutes; (2) she was actively or constructively discharged or suffered adverse employment action; (3) she was qualified to hold the position from which she was terminated; and (4) the discharge or other adverse employment action occurred under circumstances giving rise to an inference of discrimination.
When a discrimination claim is based, in whole or in part, on an allegedly adverse employment action other than termination of employment, the adverse employment action may only be challenged if it is a materially adverse change in the terms and conditions of an individual’s employment. This may be indicated by a 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. Generally, negative performance reviews or criticism of performance by themselves are not considered adverse employment actions under either the State Human Rights Law or the City Human Rights Law.
Applying this standard, the court dismissed plaintiff’s claims due to the absence of an “adverse employment action”:
Plaintiff’s allegations fall short of demonstrating that she was subjected to an adverse employment action. Plaintiff’s main complaints seem to center on being denied advancement and extra income opportunities as a result of the unsatisfactory rating. This does not constitute a “materially adverse change in the terms and conditions of an individual’s employment,” especially considering that, in the following school year of 2012-2013, Plaintiff received a satisfactory rating.
In addition, the court was “hard-pressed” to find that the comments identified by plaintiff were found that the comments identified by plaintiff were “disparaging gender-based remarks”, and that “[p]laintiff, more importantly, fails to establish that her unsatisfactory rating occurred under circumstances giving rise to an inference of discrimination based on her membership in a protected class.”
Thus, the court held that plaintiff “failed to give Defendants fair notice of the nature and grounds of her discrimination claims.”