In Netrebko v. Metropolitan Opera Association, Inc. d/b/a The Metropolitan Opera et al, 23 Civ. 6857 (AT), 2024 WL 3925377 (S.D.N.Y. August 22, 2024), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s gender discrimination claims.
As to plaintiff’s claims asserted under the New York State Human Rights Law, the court explained:
Netrebko’s firing does not present a scenario in which two grounds for discrimination cannot be “reduced to distinct components” or where bisecting her identity, as a Russian woman, “ignores the particular nature of [her] experience[ ].” Gorzynski, 596 F.3d at 110.11 That said, she has pleaded a claim of gender discrimination based on the “more favorable treatment” received by her male counterparts whom Netrebko alleges also had connections to Putin and the Russian state. Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009). For example, she alleges that the male opera singer Ildar Abdrazakov performed at political events, “including at least one event at which Putin… spoke about the war in Ukraine,” and that Abdrazakov organized a Kremlin-backed music festival. SAC ¶ 51(a). She further states that male opera singer Evgeny Nikitin was featured at a Victory Day event involving Putin, id. ¶ 51(b), and that Igor Golovatenko and Alexey Markov have performed at state-sponsored venues since the invasion of Ukraine, id. ¶ 51(c), (d). Although Netrebko has not alleged comparable conduct on the part of her female, non-Russian replacements, she has alleged conduct that permits comparison on the basis of gender.
Here, Netrebko’s claim of gender discrimination crosses the line from merely possible to plausible. The Second Circuit has held that “[a] defendant is not excused from liability” when discrimination is not the product of “a discriminatory heart, but rather [ ] a desire to avoid practical disadvantages” such as “negative publicity” or public pressure. Doe v. Columbia Univ., 831 F.3d 46, 58 & n.11 (2d Cir. 2016) (holding that motivations like “avoid[ing] liability or bad publicity” are not necessarily “lawful motivations distinct from sex bias.”).13 “[C]lear procedural irregularities,” against the backdrop of potential backlash and public scrutiny, may evince an unlawful “policy of bias favoring one sex over the other.” Menaker v. Hofstra Univ., 935 F.3d 20, 33 (2d Cir. 2019); Doe, 831 F.3d at 58 & n.11. In both Doe and Menaker, male plaintiffs accused of sexual misconduct alleged that they were subject to disparate treatment when the defendant universities—facing public pressure over their mishandling of sexual assault and harassment on campus—found them culpable after hasty adjudicative processes plagued by procedural irregularities. Doe, 831 F.3d at 49–51; Menaker, 935 F.3d at 28–30. The Circuit found that the irregularities in the handling of these matters coupled with other allegations were sufficient to establish a prima facie case of gender discrimination. Menaker, 935 F.3d at 37, 39; Doe, 831 F.3d at 57–59.
Here, the simultaneity of Netrebko’s termination, public outcry over Putin’s 2022 invasion, and the Met’s efforts to show its pro-Ukraine bona fides—taken in conjunction with Netrebko’s claim that the Met arbitrarily applied the February 27 Policy—suffice at the pleadings stage to create an inference of discrimination. Since 2017, the Met has collaborated with Moscow’s Bolshoi Theatre, a “state-controlled institution,” and Gelb was in Moscow for a Bolshoi rehearsal “on the eve of the invasion of Ukraine.” SAC ¶ 6. Netrebko alleges that the Met’s “rapid turnabout on the Russian question”—from being at the Bolshoi one day to firing her a few days later—was part of its “anti-Russia publicity campaign.” Id. ¶¶ 6, 7 (citation omitted). Given the prominence of female opera singers compared to their male counterparts, Netrebko claims that “actions against [her], as a well-known ‘diva’ or ‘prima donna’ … would garner more international headlines than similar actions taken against male artists and would therefore be more successful in furthering the Met’s anti-Russia publicity campaign.” Id. ¶ 54.14
In all, Netrebko plausibly alleges that, faced with “practical disadvantages”—such as the possibility of public pressure and negative press over its connections to the Russian state and individuals aligned with Putin—the Met adopted a “policy of bias favoring one sex over the other.” Menaker, 935 F.3d at 33 n.39; see Doe, 831 F.3d at 58 & n.11. Accordingly, the Met’s motion to dismiss is DENIED as to Netrebko’s NYSHRL gender discrimination claims.
Having determined that plaintiff stated claims under the New York State Human Rights Law, it likewise held that plaintiff stated claims under the broader New York City Human Rights Law.
The court did, however, grant defendants’ motion to dismiss plaintiff’s contract, defamation, and national origin discrimination claims.