In Rodriguez v. Excellus Bluecross Blueshield, Inc., 5:22-CV-1050 (GTS/CFH), 2024 WL 196747 (N.D.N.Y. Jan. 17, 2024), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims of race-based discrimination (termination) because of her race in violation of 42 U.S.C. § 1981 and the New York State Human Rights Law.
This decision delves into the issue, often decisive in disparate treatment discrimination cases, of whether an alleged “comparator” is “similarly situated” to the plaintiff.
From the decision:
Plaintiff has alleged that she, a Black woman, was terminated from her job as a Contract Negotiation Director II after negotiating a contract with one of Defendant’s clients. (Dkt. No. 1, at ¶¶ 13, 46-51.) Specifically, she has alleged that she transitioned that client’s agreement to “an APG reimbursement” that would cover that facility “at the lowest reimbursement rate set in [Defendant’s] system” such that, “[b]y the end of the deal, [Plaintiff’s] 2022 budget for the client was 2.4% and [Plaintiff’s] 2023 budget for the client was 7.5%,” which “only used a quarter of the budget and established continued business and revenue for [Defendant].” (Id. at ¶¶ 46-47.) Plaintiff has further alleged that this agreement was “below budget and ensured [Defendant’s] continued profit in the future years with the option to not increase reimbursement rates for the client,” and that it was structured “to ensure $25 million in revenue for [Defendant] beginning in 2023.” (Id. at ¶ 51.)
Plaintiff also has alleged facts plausibly suggesting two individuals who she asserts are comparators who were treated more favorably: Mr. Brown and Paul Gandolfo, both of whom Plaintiff alleges were “Directors” employed by Defendant. (Dkt. No. 1, at ¶¶ 53-55.) As to Mr. Brown, Plaintiff alleges that he was her “predecessor,” that he had in the past “made an error which cost [Defendant] ‘millions of dollars,’ ” and that, despite this error, he kept his position without any disciplinary action and was later promoted. (Id. at ¶¶ 46, 54.) As to Mr. Gandolfo, who is also alleged to be a Director, Plaintiff alleges that he once erroneously told Defendant’s former president that Defendant owed a client $500,000, which resulted in the president promising the client that money would be promptly paid, and Defendant was therefore obligated to pay that money to the client even after Mr. Gandolfo realized he had made a mistake and the client was not owed money; she alleges that, despite this costly error, Mr. Gandolfo’s employment was not terminated. (Id. at ¶¶ 53, 55.)
The Court notes, as an initial matter, that Plaintiff has not specifically alleged in the Complaint that either Mr. Brown or Mr. Gandolfo are White. (Dkt. No. 1, at ¶¶ 53-55.) However, reasonable inferences that those comparators are White, or at the very least a race other than Black, can be made from other factual allegations in the Complaint. Specifically, she has alleged that she was “the only Black employee in the entire department” and “the only Black Director,” and she further alleges multiple times that she believed she was being treated differently than the “white male directors” or “white members of leadership.” (Id. at ¶¶ 14, 22, 36, 40, 42, 56.) Although the allegation that she was the only Black Director does not lead to an inference that all the other Directors were White, her specification that she was treated differently than White Directors can reasonably permit an inference that Mr. Brown and Mr. Gandolfo, both of whom were Directors whom Plaintiff alleges received preferential treatment, are indeed White. Further, despite all the other reasons Defendant has asserted regarding why it believes those individuals are not similarly situated to Plaintiff, notably absent is any argument that either Mr. Brown or Mr. Gandolfo are not White, a fact that would presumably be within the scope of Defendant’s knowledge. Because there is no reason to believe on the information presented to the Court that dismissal of Plaintiff’s discrimination claim with leave to amend to add specific allegations regarding the alleged comparators’ race would be anything more than a formulaic exercise, the Court will not dismiss on that basis.
Setting aside Mr. Gandolfo (about whom the factual allegations are less definite), the Court finds that Plaintiff’s allegations regarding Mr. Brown are sufficient to plausibly suggest he is similarly situated to Plaintiff for the purposes of surviving a motion to dismiss. Although she has not specifically alleged that Mr. Brown was a Contract Negotiation Director II, she has alleged that Mr. Brown was her “predecessor,” an allegation that plausibly suggests he was in fact at one point in the same position as Plaintiff. This allegation, combined with Plaintiff’s allegations that Mr. Brown had worked on contracts in previous years for the client with whom Plaintiff was negotiating the new contract that ultimately led to her termination and that he was “later promoted” after the alleged error that costed Defendant money, plausibly suggests that such error occurred while Mr. Brown was acting in his capacity as a Director, and that he was indeed in the same position that Plaintiff held at the relevant time. Plaintiff’s allegations regarding the error Mr. Brown supposedly made in that capacity are admittedly lacking in detail as to the specific nature of that error, but the Complaint is clear that it caused Defendant to suffer at least one million dollars in losses.
Therefore, Plaintiff has alleged that, while she was acting her capacity as a Contract Negotiation Director II, her employment was terminated for negotiating a contract that was structured to provide profit and significant revenue to Defendant, while a Director who had occupied the same title (indeed, seemingly the exact position that Plaintiff later was hired into after Mr. Brown was promoted) had previously committed an error in the performance of his duties that caused Defendant to suffer a loss of one million dollars, but was not terminated and indeed did not face any disciplinary ramifications. Although it is true that discovery may reveal that the details of the circumstances under which Mr. Brown committed his error are not materially similar to Plaintiff’s action in negotiating a contract with a client, such questions are not for the Court to determine at this stage. See Hu, 927 F.3d at 97 (finding that, although the complaint did not include allegations regarding many relevant details bearing on similarity of the conduct, the allegation that plaintiff and the comparators both had a standing pool of water at the same jobsite but were treated differently was sufficient to meet the plausibility standard). Plaintiff has plausibly alleged that she was disciplined for job-related conduct that was seemingly not even ostensibly financially harmful to Defendant, while Mr. Brown faced no adverse consequences for subjecting Defendant to a significant loss of money through his job-related conduct. The fact that Plaintiff’s conduct did not incur a similar level of loss is not inherently fatal to her comparison, given that a worse outcome for better job performance is arguably a stronger indicator of an improper motive than a worse outcome for identical job performance. The relevant pleading standard is intended to ensure that a plaintiff can demonstrate right to relief that rises “above the speculative level,” and Plaintiff’s allegations have met that bar.
The court identified additional allegations that “bear on the question of whether Plaintiff’s termination occurred in a context that raises an inference of race discrimination”, namely, her allegation that her supervisor immediately and without explanation declined to consider a black candidate, suggested by plaintiff, for an open position.