In Floyd v. New York Public Radio, 23-cv-1096 (ALC), 2024 WL 1407058 (S.D.N.Y. April 2, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claims of race discrimination asserted under 42 U.S.C. § 1981, the New York State Human Rights Law, and the New York City Human Rights Law.
After summarizing the relevant law, the court applied it to the facts as follows (with respect to federal law):
When accepting all facts alleged in Plaintiff’s amended complaint as true and drawing all inferences in her favor, Plaintiff has sufficiently pleaded a cognizable race discrimination claim. Ms. Floyd, as a Black female employee, is a member of a protected class. (FAC ¶ 1). Moreover, she met her minimal burden of presenting evidence that she possessed the basic skills necessary for her performance as a broadcast journalist, legal and political analyst, and television and radio host. (FAC ¶ 30, 36, 42, 43, 50). “An adverse employment action is a ‘materially adverse change in the terms and conditions of employment,’ which can include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities,’ among other possibilities.” Adams v. Festival Fun Parks, LLC, 560 F. App’x 47, 49 (2d Cir. 2014) (quoting Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)). NYPR argues that Plaintiff has failed to state an actionable adverse employment action because the company gave her the editor title she sought in August 2020 and promoted her to run her own editorial desk in September 2020. These facts, standing alone, would certainly extinguish a claim of adverse employment action. This is not the case here. Plaintiff was passed up for two opportunities (the midday show in July 2018 and the Editor-in-Chief position in June 2020) she was not only qualified for but was highly considered for, and in the first instance, even promised. (FAC ¶¶ 30, 43-44). Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 136 (2d Cir. 2016) (citations omitted). This Circuit has found that denying promotion constitutes an adverse employment action. See Banks v. Gen. Motors, LLC, 81 F.4th 242, 269 (2d Cir. 2023 (“[i]n addition to terminations of employment and demotions, failure to promote … may also qualify as [an] adverse action[ ],); see also Beyer v. County of Nassau, 524 F.3d 160, 163-64 (2d Cir. 2008) (noting that a reasonable jury could find that the position Plaintiff sought was objectively and materially better than the position she occupied and that, accordingly, an adverse employment action had occurred).
Floyd was only given a “Legal Editor” title, despite her ten years of involvement with WNYC, after she complained to Human Resources in June 2019, the SAF-AFTRA union, and the new CEO about the issue. (FAC ¶ 41). Moreover, she alleges that she experienced a progressive decline in annual compensation in 2020 and 2021, when compared to her compensation before she received the Editor title in 2018 or 2019. (FAC ¶ 48). When viewing this evidence in the light most favorable to Plaintiff, the Court finds that Floyd has pleaded an actionable adverse employment action sufficient to withstand a 12(b)(6) motion.
Finally, Plaintiff has plausibly alleged that the adverse action she faced, specifically NYPR’s denial to advance or promote her, occurred under circumstances that give rise to racial discrimination. Setting aside the racially hostile comments made by NYPR executives, including then Vice President of News Jim Schachter’s 2018 comment, “now we have a black COO. What’s next a Black president?”, and then Editor-in-Chief Audrey Cooper’s 2021 refusal to hire Floyd’s recommendation of a qualified Arab-American journalist “because he is not Black,” Floyd’s allegation that she was denied the midday show position in 2018 and the Editor-in-Chief position in 2020 in favor of “individual[s] outside [her] protected class” is sufficient to raise an inference of discrimination at the initial prima facie stage. (FAC ¶ 30, 35, 44, 49), Littlejohn v. City of New York, 795 F.3d 297, 312-13 (2d Cir. 2015); see also D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195 (2d Cir. 2007) (holding that plaintiff’s allegation that “one of the individuals who was offered [the] position was eight years younger than [plaintiff]” was “significant enough to support an inference in [plaintiff]’s favor”). That Schachter “wanted witnesses,” including NYPR’s Chief Human Resources Officer, present when he delivered news that Floyd was passed up for the 2018 midday show position, and that over 150 NYPR employees signed a petition opposing the 2020 hiring of Audrey Cooper, support a plausible inference of racial bias.
Continuing, the court held that since plaintiff sufficiently alleged race discrimination under federal law, her state and city law claims necessarily survive as well – in that state law claims are governed by the same standard as (and city law claims impose a less demanding standard than) federal law.