In Allen v. City of New York et al, 2019 WL 5450874 (SDNY Oct. 23, 2019), the court, inter alia, dismissed plaintiff’s race discrimination claim under Title VII of the Civil Rights Act of 1964.
This claim failed, held the court, because plaintiff failed to proffer an actionable “adverse employment action.”
To survive a motion to dismiss a Title VII claim for discrimination, the plaintiff must show “(1) that she is a member of a protected class, (2) that she was qualified for the position she sought, (3) that she suffered an adverse employment action, and (4) can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). The plaintiff satisfies the first two prongs of the Littlejohn test, but she does not plausibly allege that she suffered an adverse employment action within the meaning of Title VII as a result of the pre-December 1, 2017 conduct. The only possibly adverse employment action that the plaintiff alleges is the result of the Section 3020-a proceeding, but she waived the right to sue for that proceeding or its resolution. The plaintiff did not suffer any consequences in her employment prior to December 1, 2017 besides being subjected to the Section 3020-a proceeding. That is not an adverse employment action.