All Actions Affecting Workers Are Not Necessarily “Employment Actions” For Purposes of the Discrimination Laws

In Wingfield v. Rochester School for the Deaf, the Western District of New York recently clarified that not all employment decisions that affect employees at work are “employment actions” sufficient to support a claim of employment discrimination.

In Wingfield, plaintiff and her ex-husband worked at defendant. Following an altercation, family court issued a temporary order of protection which required plaintiff’s husband to remain a certain distance from her on defendant’s campus.

Plaintiff alleged that she was subjected to discrimination, in that she

was treated differently than her ex-husband in the execution of the order and that a security guard at the school intimidated her and forced her to leave her child’s sporting event in an attempt to enforce the order. She alleges that her ex-husband was not subjected to the same restrictions at the school during the time period that the order was effective.

The court recited the standard for pleading an employment discrimination claim:

To state a prima facie case of sex discrimination under Title VII, a plaintiff must allege that: (1) she was within the protected class; (2) she was qualified for her position; (3) she was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of unlawful discrimination. [A] complaint need not contain specific facts establishing a prima facie case of employment discrimination to overcome a Rule 12(b)(6) motion, [but] the claim must be facially plausible, and must give fair notice to the defendants of the basis for the claim.

Plaintiff failed to plausibly allege that she was subjected to an adverse employment action under circumstances giving rise to an inference of discrimination in connection with the order of protection:

First, even liberally construing the complaint, the Court cannot characterize the RSD’s response to the order of protection as an adverse employment action. According to the complaint, the order of protection required that Plaintiff’s ex-husband, also an employee at RSD, remain 25 feet away from the Plaintiff while the order was in effect. RSD effectuated the order by restricting Plaintiff’s presence and movement on the school campus. 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. RSD’s effectuation of an order of protection, which Plaintiff sought against her ex-husband, is not an action taken in connection with Plaintiff’s employment. While the restrictions may have affected her at work, the RSD’s actions were the result of the order of protection relating to a domestic dispute, they do not represent a change in the terms and conditions of Plaintiff’s employment. Further, the temporary restriction of her presence and movement on the campus to comply with the order is not more disruptive than a mere inconvenience. The order was lifted within a few weeks, as were the restrictions of her movement on campus. (Emphasis in original.)

The court also held that “the fact that Plaintiff and her husband were treated differently with respect to the Order does not, under these circumstances, plausibly give rise to an inference of gender discrimination,” reasoning that the two “worked in different capacities at RSD and it is not plausible that they were similarly situated in all material respects, as is required for an inference of discrimination based on disparate treatment.”

In addition, it found that “the alleged threatening behavior of a security guard towards Plaintiff while she was attending a sporting event at RSD in her capacity as a parent of a student is unrelated to her employment at RSD,” since “the security guard’s actions towards a parent cannot be considered an adverse employment action.”

The court, however, held that plaintiff plausibly alleged a gender discrimination claim regarding the issuance of a “Last Chance Agreement”, based on her allegation that “male employees at RSD who had violated the school policies were not given similar disciplinary actions or termination” and the fact that that agreement “requires that Plaintiff waive her right to bring a discrimination lawsuit based on RSD’s actions.”

Plaintiff’s allegations of “two or three instances in which she felt that she was treated unfairly” were insufficient to allege a hostile work environment.

Finally, the court held that plaintiff plausibly alleged retaliation.

“To establish a prima facie retaliation claim, Plaintiff must show that: (1) she participated in a protected activity; (2) Defendant was aware of Plaintiff’s protected activity; (3) she suffered a materially adverse employment action; and (4) there was a causal connection between the protected activity and the adverse action.”

It reasoned:

Plaintiff alleges that she complained of discrimination to her supervisor and Mowl relating to RSD’s role in enforcing the restrictions contained in the order of protection. She alleges that “Mowl tried to stop [her] from talking with others about alleged discrimination” and that the Last Chance Agreement, contains a waiver of her rights to file a discrimination lawsuit against RSD. While not commenting on the strength of Plaintiff’s case, the Court finds that Plaintiff has plausibly alleged a claim for retaliation because a reasonable jury could conclude that a waiver of her rights to file a discrimination lawsuit in a document that she was required to sign to continue her employment after she complained of discrimination to her employer was retaliatory.

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