Race Discrimination Claims Sufficiently Alleged; Allegations Include Burdens, Assignment of Disproportionately Heavy Workload, and Constructive Discharge

In Dobney v. The Walt Disney Company et al, 23-CV-5380 (JPO), 2024 WL 325336 (S.D.N.Y. Jan. 29, 2024), the court denied defendants’ motion to dismiss plaintiff’s various discrimination claims – including disparate treatment and constructive discharge – under the New York State and City Human Rights Laws.

From the decision:

First, Dobney sufficiently pleads a discrimination claim under the NYSHRL and NYCHRL as a result of Defendants’ subjecting her to burdens to which her non-Black counterparts were not subject. Since Dobney began reporting to McHale in 2019, McHale was “openly hostile” to her and “was aggressive and verbally abusive to [her] without reason or provocation, treating her differently from her non-Black counterparts” including through “criticiz[ing] her more than [her] non-Black counterparts.” (Compl. ¶¶ 35-37.) McHale also refused to provide her with an office commensurate with those of her non-Black counterparts or give her the “same responsibilities or opportunities as her non-Black colleagues, such as interviewing candidates for the team.” (Id. ¶¶ 36-37.) In July 2020, McHale required Dobney to attend a meeting with a Senior Manager of Financial Planning to review Dobney’s job description, even though he did not require her non-Black counterparts to attend such a meeting. (Id. ¶¶ 52-54.) In 2021, McHale required Dobney to interview for a lateral job opportunity while he had never required another person reporting to him to interview for a lateral role. (Id. ¶¶ 93-94.)

Dobney further alleges that she was assigned a “disproportionately heavy workload relative to her [non-Black counterparts], which constitutes an adverse employment action.” Sanderson v. Leg Apparel LLC, No. 19-CV-08423, 2020 WL 3100256, at *6 (S.D.N.Y. June 11, 2020) (citing Feingold v. New York, 366 F.3d 138, 152-53 (2d Cir. 2004)). Dobney alleges that two non-Black individuals who were on her team and had the same title as she did confirmed that McHale was burdening her with far more work than them, and that they had direct reports to provide them with assistance. (Compl. ¶ 66.) Because Dobney alleges that her non-Black counterparts were assigned less work, Dobney has met her minimal burden to allege facts suggesting an inference of discriminatory motivation. See Sanderson, 2020 WL 3100256, at *6.

Dobney also sufficiently alleges a discrimination claim under the NYSHRL and NYCHRL as a result of Defendants’ failure to promote her as compared with her non-Black counterparts. “To plead a prima facie case for discriminatory failure to promote, a plaintiff must demonstrate (1) that he is a member of a protected class; (2) that he applied for a promotion to a position for which he was qualified; (3) that he was rejected for the position; and (4) after this rejection, the position was filled by someone outside the protected class who was similarly or less well qualified than the plaintiff, or the employer kept the position open and continued to seek applicants.” Gordon v. City of New York, No. 14-CV-6115, 2015 WL 3473500, at *7 (S.D.N.Y. June 2, 2015) (citing Yu v. N.Y.C. Hous. Dev. Corp., 494 F. App’x 122, 124–25 & n. 4 (2d Cir.2012) (summary order)). Dobney adequately alleges two discrimination claims as a result of Defendants’ failure to promote. First, in or around September 2021, Dobney told Barrett that she wanted a promotion to Senior Manager. (Compl. ¶¶ 69, 71.) Barrett claimed there was no headcount available to promote her, and that the Company did not do promotions in place absent an expansion of workload. (Id. ¶ 72.) However, just one week later, another employee, Peña—who is not Black and had been with the Company for only a little over a year—was promoted in place to Senior Manager without an expansion in his workload. (Id. ¶¶ 75-80.) Second, in late 2021, Dobney applied for the Senior Manager of Digital position. (Id. ¶ 83-84.) As detailed above, Dobney was well qualified for the position. (Id. ¶¶ 84-85.) However, Dobney was not offered the position, which instead went to another employee, Levin, who is not Black and was less qualified for the position. (Id. ¶ 89.) These allegations are sufficient to sustain a discrimination claim as a result of Defendants’ failure to promote. See Brophy v. Chao, No. 17-CV-9527, 2019 WL 498251, at *5 (S.D.N.Y. Feb. 7, 2019) (“Plaintiff’s allegations that he was rejected in favor of… younger and less-qualified individuals outside of Plaintiff’s protected class, are sufficient to give rise to an inference of discrimination.”) (internal citation and quotation marks omitted).

Dobney also sufficiently pleads a discrimination claim under the NYSHRL and NYCHRL as a result of Defendants’ paying her less than her non-Black counterparts. “Subjecting an employee to unequal pay can, of course, constitute a materially adverse employment action.” Butler v. New York Health & Racquet Club, 768 F. Supp. 2d 516, 532 (S.D.N.Y. 2011) (citing Borrero v. Am. Express Bank Ltd., 533 F.Supp.2d 429, 438 (S.D.N.Y.2008)). Dobney alleges that New York City’s Salary Transparency law allowed her to confirm that she was being paid less than her non-Black counterparts. (Compl. ¶ 101.) The Court concludes that Dobney has alleged multiple adverse employment actions, and therefore, has adequately pleaded discrimination under the NYSHRL and NYCHRL.

Finally, Dobney sufficiently alleges a claim for constructive discharge. “Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily. Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 185 (2d Cir. 2011). “In analyzing a claim of constructive discharge, ‘the effect of a number of adverse conditions in the workplace is cumulative.’ ” Madray v. Long Island Univ., 789 F. Supp. 2d 403, 410 (E.D.N.Y. 2011) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 90 (2d Cir.1996)). Defendants argue that Dobney’s constructive discharge claim should be dismissed because her underlying discrimination and retaliation claims lack merit. (ECF No. 15 at 19-20.) As discussed above, and as further discussed below, the Court concludes that Dobney has adequately alleged discrimination and retaliation claims. Dobney has adequately alleged that she suffered multiple adverse actions, including failure to promote, as well as retaliation for complaining about her disparate treatment. Considering these adverse actions cumulatively, the Court concludes that a reasonable person in the Dobney’s shoes would have felt compelled to resign. The Court therefore concludes that Dobney has adequately alleged a constructive discharge claim.

The court went on to hold that plaintiff sufficiently alleged claims of retaliation, as well as aiding and abetting discrimination.

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