How to plead employment discrimination cases, Part I: adverse actions

The Second Circuit has provided significant guidance on how to resolve Rule 12 motions to dismiss in employment discrimination cases, emphasizing that the plaintiff has a low burden in asserting a plausible claim. This ruling revives a racial discrimination case filed by a school administrator. 

The case is Buon v. Spindler, issued on April 12. This case will be analyzed in two blog posts. This one covers adverse employment actions. The next one covers how to plead discriminatory intent.

The complaint asserts a series of actions that the school district had taken against plaintiff, a Black women of West Indian descent who was an elementary school principal in the City of Newburgh school district before defendants asked her to assume leadership at SMS, a secondary school in the district. 

 

After a series of negative employment actions, everything culminated in 2019, when defendants denied plaintiff a transfer to an open RISE position for which she was qualified (and had previously held), giving the position to a less-qualified administrator who was not Black not West Indian. That year, defendants also denied plaintiff an administrative position for the summer school program, a position that plaintiff had previously held; it was instead given to five less-qualified individuals, four of whom were White. Plaintiff was terminated as SMS Principal in May 2019 and transferred back to her old position as elementary school principal even though she had been rated as an effective administrator for the 2018-19 school year. The district court dismissed the case under Rule 12 for failure to state a claim, but the Court of Appeals (Sullivan, Chin and Bianco) reinstates the claim.

The Court says plaintiff has pleaded an adverse employment action. For this, you need a "materially adverse change in the terms and conditions of employment," such as significantly diminished material responsibilities or the loss of salary or benefits, and not a mere inconvenience or alteration of job responsibilities. While the district court said that a "denial of an educator's request to participate in additional programs, including paid programs, does not constitute an adverse employment," citing cases from other circuit courts, the Court of Appeals emphasizes that "any decision by an employer, including the denial of a workplace opportunity that materially affects the terms and conditions of employment, can constitute an adverse employment action." In addition, denying workplace opportunities, such as being prevented from earning overtime pay or comp time, and the denial of employment opportunities that do not involve the loss of money, may also constitute adverse actions. As for the latter, the loss of a prestigious position may qualify. The Court wraps this up as follows:

the denial of a lateral transfer or an additional assignment can qualify as an adverse employment action if that transfer or additional assignment would have materially changed the terms and conditions of employment, such as by materially increasing the employee’s pay or materially increasing the employee’s opportunity for advancement.

Plaintiff thus pleads a viable cause of action. The Court says:

The FAC pleads sufficient facts to plausibly allege three separate employment decisions—namely, the denial of Buon’s application to administer the RISE program, the denial of her application to administer the summer-school program, and the termination of her position as SMS principal—that each independently constitutes a materially adverse change to Buon’s employment. Buon is not alleging that the changes were “a mere inconvenience or an alteration of job responsibilities,” nor is she basing her claim on “subjective, personal disappointments." Instead, her claim is that due to defendants’ actions she was unable to substantially increase her income and was subject to a loss of her then-current income.

. . . 

Even apart from whether obtaining the RISE-administrator and summer-program positions and retaining the SMS principal position would have materially increased Buon’s opportunities for advancement inside or outside the School District, the alleged loss of additional earnings from losing or being denied these positions is sufficient to “plausibly allege[] an adverse employment action” that survives a motion to dismiss as to each of these three employment decisions. 

The question then becomes whether plaintiff has pleaded that these adverse actions were motivated by discriminatory intent. That is a subject for the next blog post.