Title VII Race Discrimination Claim Survives Dismissal; Discovery Required to Determine Viability of Plaintiff’s Proffered Comparator

In Olson v. Takeda Pharmaceuticals America, Inc. et al, Case No. 8:23-cv-590-TPB-CPT, 2024 WL 245978 (M.D.Fla. Jan. 23, 2024), the court (inter alia) denied defendant’s motion to dismiss plaintiff’s claims of race discrimination under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

From the decision:

It is true that not every unpleasantry or trivial slight associated with the workplace constitutes an “adverse employment action.” Grimsley v. Marshalls of MA, Inc., No. 1:05-CV-3252-TCB, 2007 WL 9710142, at *3 (N.D. Ga. Sept. 28, 2007), aff’d, 284 F. App’x 604 (11th Cir. 2008) (quoting Davis v. Town of Lake Park, 245 F.3d 1232, 1244-45 (11th Cir. 2001)); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000) (“Title VII, as it has been aptly observed, is not a ‘general civility code.’ ”). An adverse employment action requires either an ultimate employment decision, such as hiring or firing, or other conduct that constitutes a serious and material change in the terms, conditions, or privileges of employment. See Davis, 245 F.3d at 1238-39. Conduct that does not rise to the level of an ultimate employment decision must still meet a threshold level of substantiality, going beyond the “ordinary tribulations of the workplace.” Id. at 1239 (internal quotation omitted). The employee’s subjective view of the employer’s action is not controlling; the action must be materially adverse as viewed by a reasonable person under the circumstances. Id. at 1239-40.

At this stage of the proceedings, the Court assumes that all factual statements are true, including Plaintiff’s allegations that she was assigned additional work tasks in addition to her regular duties, and that Defendant conducted a frivolous investigation into whether she had a second income. Although it appears that many of her allegations ultimately may not survive the threshold for adverse employment actions, the Court would be moving too quickly and too far if it were to dismiss the claims at this time.2 See Green v. City of Tarrant, No. 2:09-cv-402-JHH, 2009 WL 10688414, at *5 (N.D. Ala. Sept. 3, 2009) (denying motion to dismiss although allegations seemed unlikely to survive “Davis threshold for adversity.”). These claims require discovery. The motion to dismiss is denied as to this ground.

The court further rejected defendant’s argument that plaintiff’s Title VII race discrimination claim ought to be dismissed on the ground that plaintiff failed to identify a viable comparator.

It explained the black-letter law: “To allege a Title VII racial discrimination claim, a plaintiff must allege, among other things, that she was treated less favorably than a similarly situated individual outside her protected class.”

While the court discounted plaintiff’s proffered comparator – whose employment history was “wildly different” than plaintiff’s – it was “not comfortable dismissing the racial discrimination claim at this stage of the proceedings” since “[d]iscovery is needed to determine whether Davis truly is a viable comparator.”

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