Sex Discrimination Claim Dismissed; No “Adverse Action” Alleged

In Martinez v. City of Union City, Union City Police Department et al, Civ. No. 21-11111, 2021 WL 5195708 (D.N.J. Nov. 8, 2021), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s claim for sex discrimination under Title VII of the Civil Rights Act of 1964. (The court did, however, find that plaintiff sufficiently alleged a sex-based hostile work environment; I wrote about that aspect of the court’s decision here.)

The court summarized the relevant legal standard as follows:

To establish a prima facie case of race or sex discrimination under Title VII and the NJLAD, a plaintiff must establish that: (1) she is a member of a protected class; (2) she was qualified for the position in question; (3) she suffered an adverse employment action; and (4) that adverse employment action gives rise to an inference of unlawful discrimination.

Here, the defendants did not dispute that the plaintiff is a woman (and thus a member of a protected class), or that she was qualified for her position. The court thus turned to the assessment of the third and fourth elements; it held that plaintiff’s claim failed because she did not allege the third (i.e., that she was subject to an “adverse employment action”).

As to that element, the court explained:

In the context of a disparate treatment claim, “an adverse employment action is one which is serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Cardenas, 269 F.3d at 263 (internal quotation marks omitted). In other words, an adverse employment action is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152–53 (3d Cir.1999) (internal quotation marks omitted). Additionally, an adverse employment action may be found “[i]f an employer’s act substantially decreases an employee’s earning potential and causes significant disruption in his or her working conditions….” Id. at 153. The standard for an adverse employment action is the same under the NJLAD as under Title VII. See Tourtellotte, 636 F.3d at 842–43. This inquiry is separate from the hostile work environment analysis.

Applying the law, the court explained:

Although Martinez catalogues a great deal of harassment and retaliation in her complaint, she alleges only two actions that could potentially qualify as an adverse employment action: Matulewicz’s refusal to assign her to the ESU truck, while assigning more junior male employees (Compl. ¶ 34–37), and the unjustified disciplinary writeups (Id. ¶ 66, 74). These actions, although adverse in the colloquial sense, do not rise to the level of an adverse employment action within the meaning of the law. Martinez does not allege that she was fired, demoted, denied a promotion, assigned to a significantly less desirable job, or had her pay or benefits reduced. Courts have repeatedly held that reprimands and disciplinary reports without tangible punishment do not amount to adverse employment actions under Title VII or the NJLAD. Written reprimands and other disciplinary actions can constitute such adverse actions only if they “effect a material change in the terms or conditions of [the] employment.” Deans v. Kennedy House, Inc., 998 F. Supp. 2d 393, 410 (E.D. Pa.), aff’d, 587 F. App’x 731 (3d Cir. 2014) (quoting Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001), abrogated on other grounds as recognized by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). Although Martinez does allege that the disciplinary actions were part of a retaliatory campaign, as discussed infra, she does not allege that they led to any material consequences to her employment, such as pay cuts or suspension.

Similarly, although it may have been against department policy to refuse to assign Martinez to the ESU truck, this action does not rise to the level of an adverse employment action.8 Courts that have examined the allegedly discriminatory assignment of a police officer to a foot post have found that it does not constitute an adverse employment action. See, e.g., Guzman v. City of New York, 93 F. Supp. 3d 248, 259 (S.D.N.Y. 2015); Roman-Malone v. City of New York, 2013 WL 3835117 (S.D.N.Y. July 25, 2013); McQueen v. City of Chicago, 2014 WL 1715439, at *2 (N.D. Ill. Apr. 30, 2014). Generally, courts have found that a transfer to a “less desirable assignment” that does not affect pay or benefits is not an adverse employment action. See Langley v. Merck & Co., 186 F. App’x 258, 260 (3d Cir. 2006); Revell v. City of Jersey City, 2009 WL 3152110, at *6 (D.N.J. Sept. 28, 2009), aff’d, 394 F. App’x 903 (3d Cir. 2010); Dietrich v. City of New York, 2020 WL 4226591, at *8 (S.D.N.Y. July 23, 2020); Serna v. City of San Antonio, 244 F.3d 479, 483 (5th Cir. 2001). Here, Martinez does not allege that the failure to assign her to the ESU truck led to a demotion, loss of pay, or other major consequence.

Therefore, the court concluded, since plaintiff did not allege that she was subject to an adverse employment action, she cannot make a prima facie case of gender discrimination, warranting the granting of defendant’s motion to dismiss.

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