MAUD MARON v.
21 Civ. 5960 (KPF)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
June 2, 2022
KATHERINE POLK FAILLA, District Judge
OPINION AND
KATHERINE POLK FAILLA, District Judge:
On July 23, 2020, Plaintiff Maud Maron, a career public defender at Defendant The Legal Aid Society (“LAS“), penned an op-ed in the New York Post entitled “Racial Obsessions Make it Impossible for NYC Schools to Treat Parents, Kids As People” (the “Op-Ed“). Speaking simultaneously in her capacities as a mother, public defender, elected public school council member, and then-candidate for New York City Council, Plaintiff recounted in the Op-Ed her experience at an anti-bias training run by the New York City Department of Education (“DOE“). She decried what she perceived as DOE‘s endorsement of the “chilling doctrine called anti-racism,” which she asserted “insists on defining everyone by race, invites discrimination[,] and divides all thought and behavior along a racial axis.” Responding to the Op-Ed, the Black Attorneys of Legal Aid (“BALA“), a caucus of Defendant Association of Legal Aid Attorneys (“ALAA,” or the “Union,” and together with LAS, “Defendants“), issued a public statement denouncing Plaintiff‘s “racist” views and characterizing her “as a classic example of what 21st century racism looks like.” LAS followed with its own statement, which similarly rebuked Plaintiff‘s “racist perspective” and questioned the ability of any public defender to “effectively and fully” engage in public interest work if they do not embrace an anti-racist mandate.
Plaintiff alleges that Defendants’ statements were riddled with falsehoods and singled her out because she is white. For such conduct, Plaintiff brings this civil rights suit, asserting claims of hostile work environment and constructive termination pursuant to
BACKGROUND1
A. Factual Background
1. Plaintiff‘s Employment at LAS and Campaign for City Council
For most of her legal career, Plaintiff has served as a public defender with LAS,
initiation of the instant lawsuit in 2021. (Am. Compl. ¶ 7). During her time at LAS, Plaintiff held the titles of staff attorney and Director of Training and received invitations to serve as a faculty lecturer at LAS‘s trial advocacy programs. (Id.).
On December 30, 2019, Plaintiff circulated an officewide email announcing that she would be taking a leave of absence from LAS in 2020 to campaign full time for City Council. (Belovin Decl., Ex. 1).2 Several hours after sending this email, Rigodis Appling, an LAS staff attorney, replied to Plaintiff‘s message, copying the оffice listserv, and stated in full: “Requesting that you please leave the Legal Aid Society‘s name and recognition out of your campaign materials and speeches.” (Id.). The message continued, “[i]t‘s not a good look for us.” (Id.). Underneath the text of this message, Appling included several links to materials criticizing Plaintiff for her position on New York City‘s efforts to expand “Culturally Responsive Education” in public schools and calling for
Plaintiff to resign from her elected position as a public school council member. (Id.; see also Wolman Decl., Ex. 2-4).3 Plaintiff replied to Appling‘s email explaining that these sources were part of “the smear campaign by people who disagree with [her] and think the way to conduct public discourse is to attack people instead of engaging in constructive conversation.” (Belovin Decl., Ex. 1). Appling responded in the final email of the chain by affirming her belief in “engaging in constructive public discourse” and inviting Plaintiff to “discuss [her] position on school segregation with union members[.]” (Id.).
2. LAS‘s Investigation into Plaintiff‘s Work Performance
Plaintiff alleges that at the end of 2019, BALA prompted LAS to open a baseless investigation into her. (Am. Compl. ¶ 13). The investigation entailed a wholesale review of Plaintiff‘s caseload and interviews of three of her supervisors concerning her work as a public defender. (Id. at ¶ 15). None of Plaintiff‘s supervisors identified any concerns regarding the quality or nature of her client representations, and the investigation was ultimately deemed unfounded. (Id. at ¶ 16). Plaintiff learned of the results of this investigation on January 13, 2020, during a meeting with her union representative and Tina Luongo, the Attorney-in-Charge of LAS‘s Criminal Defense
wrongdoing, Luongo warned Plaintiff that the same attorneys who initiated the investigation portended to “leak” the fact of the investigation to the press to harm Plaintiff‘s campaign. (Id. at ¶ 18). Concerned about the risk to her reputation, Plaintiff requested that LAS issue an approbative statement if information concerning the investigation were leaked, prompting Luongo to interrupt and state that “IT WILL be leaked.” (Id. at ¶¶ 19-20). Luongo then acceded to Plaintiff‘s request that LAS release a statement acknowledging Plaintiff‘s exemplary record when the attempt to damage her reputation materialized. (Id. at ¶ 21). Plaintiff does not allege that the investigation was leaked, and LAS never released the statement discussed during Plaintiff‘s meeting with Luongo and her union representative. (Id. at ¶ 22).
3. Plaintiff‘s Op-Ed in the New York Post and Defendants’ Responses
On July 23, 2020, while on sabbatical from LAS, Plaintiff published the Op-Ed in the New York Post. (Am. Compl. ¶¶ 8, 23; Pl. Ex. A (“Op-Ed“)).4 In the Op-Ed, Plaintiff took issue with a DOE anti-bias training that she attended, at which she was instructed to refer to herself as a “white woman,” and which classified concepts such as “worship of the written word,” “individualism,” and “objectivity” as “white-supremacy culture.” (Op-Ed 1). Drawing from this experience, Plaintiff took aim at the City‘s push to instill in public schools the “benign-sounding but chilling doctrine called anti-racism, which insists on defining everyone by race, invites discrimination[,] and divides all thought and
behavior along a racial axis.” (Id.). Plaintiff highlighted her perception that “[t]hose who oppose this ideology are shunned and humiliated, even as it does nothing to actually improve our broken schools.” (Id.). Plaintiff expressed support for “more integrated schools, regardless of whether integration is an academic booster,” but urged people to “think through all this with nuance, not by vilifying some parents or setting parents against each other.” (Id. at 2).
Three days after the publication of the Op-Ed, on July 26, 2020, BALA issued a statement “respond[ing] to [Plaintiff‘s] recent anti-racism philippic” and “denounc[ing] [her] as the racist that she is.” (Pl. Ex. B (“BALA Statement“) at 1). According to BALA, that Plaintiff finds anti-racism to be chilling “tells true racial advocates all they need to know: she‘s racist, and wants the school system ... to remain unequal.” (Id.). Plaintiff is, in BALA‘s eyes, one of the “many white practitioners” who subscribes to the “common myth ... that being public defenders precludе[s] them from being racist.” (Id.). Relatedly, the authors professed that “we know for a fact that [Plaintiff‘s] commitment to zealous representation of poor people of color is questionable at best” (id. at 1), and that she has been “tasked with representing a constituency she clearly has no regard for” (id. at 3). The statement proclaimed that one “cannot oppose anti-racism and effectively represent Black and Brown people,” and concluded by saying that Plaintiff “has no business having a career in public defense, and we‘re ashamed that she works for the Legal Aid Society.” (Id.).
LAS‘s official Twitter account retweeted the BALA Statement, without any commentary. (Am. Compl. ¶ 30; Pl. Ex. C). Thereafter, on July 27, 2020, LAS released its own statement responding to the Op-Ed,
The LAS Statement went on to declare the organization‘s commitment to anti-racism. According to LAS, anti-racism requires recognizing “that white supremacy drives every policy and law, every opportunity and every advantage.” (LAS Statement 2). LAS explained that it has “not taken on the internal work needed to build a truly anti-racist workplace” and that “as an organization we are committing to bravely have the much needed, and long overdue, conversations and engaging in the critical dialogue and discourse
concerning racism, transphobia, sexism and intersectionality.” (Id. at 1). LAS specified that “[f]or those of us who are white, it is a recognition that power and privilege has been granted merely because we are white. While you have dedicated your life to public interest, you cannot do this work effectively and fully unless and until you face that reality and own that you are рart of the problem.” (Id. at 2). LAS added that, “[t]o push against the deep work needed to change and be threatened by the conversation, is the exact definition of white fragility.” (Id.). As a closing note, LAS explained that “[w]hite people have a duty to no longer be silent and a responsibility to confront these systems of oppression and to shun all forms of white supremacy in our society, in our workplaces, and within our hearts and minds. Enough is enough.” (Id.).
Based on the foregoing events, Plaintiff alleges that LAS and ALAA have discriminated against her on the basis of her race. Although Plaintiff is currently promised a return from sabbatical under the governing collective bargaining agreement, Plaintiff asserts that LAS has made it impossible for her to return. (Am. Compl. ¶ 33; Pl. Ex. D (“Collective Bargaining Agreement“), § 3.4.4.1.2). Furthermore, Plaintiff alleges that LAS‘s endorsement of BALA‘s statement and issuance of its own statement are tantamount to terminating her employment, because “[a]n employer who says, publicly, it is ashamed she works there and has no business working there, is not an employer any reasonable person could be expect[ed] to work for.” (Am. Compl. ¶¶ 34-35). Plaintiff also alleges that LAS violated several provisions of the Collective Bargaining Agreement — including her rights to due process, free speeсh, and confidentiality — by constructively terminating her in this fashion. (Id. at ¶¶ 32, 34, 45). Lastly, Plaintiff asserts that ALAA breached the duty it owed her as her bargaining representative by making its
B. Procedural Background
Plaintiff initiated this lawsuit with the filing of the underlying complaint on July 12, 2021. (Dkt. #1).6 On August 4, 2021, LAS filed a pre-motion letter indicating its intent to move to dismiss the case. (Dkt. #18). The following day, ALAA filed its own pre-motion letter stating its intent to move to dismiss the complaint. (Dkt. #20). On August 9, 2021, Plaintiff submitted a letter opposing both proposed motions. (Dkt. #22). On August 18, 2021, the Court dispensed with its usual practice of holding a pre-motion conference and set a briefing schedule for Defendants’ motions to dismiss, which schedule included an opportunity for Plaintiff to amend her pleadings. (Dkt. #23).
On September 1, 2021, Plaintiff filed the Amended Complaint, which is the operative pleading in this matter. (Dkt. #24). On October 1, 2021, Defendants filed their motions to dismiss and supporting papers. (Dkt. #32-34 (ALAA); Dkt. #37-39 (LAS)). On November 10, 2021, Plaintiff filed her opposition papers. (Dkt. #43). Finally, on November 24, 2021, Defendants
filed their reply briefs. (Dkt. #44 (ALAA); Dkt. #45 (LAS)). Accordingly, Defendants’ motions to dismiss are fully briefed and ready for consideration.
DISCUSSION
As noted, Plaintiff asserts Title VII claims for (i) hostile work environment against LAS (Am. Compl. ¶¶ 49-61); (ii) hostile work environment and discrimination against ALAA (id. at ¶¶ 62-79); and (iii) constructive termination against LAS (id. at ¶¶ 80-92). Defеndants seek to dismiss Plaintiff‘s claims on the grounds that Plaintiff has failed to allege that any of the conduct at issue was motivated by her race, as opposed to her viewpoint, which is not a protected characteristic under the federal civil rights law. (LAS Br. 10-16; ALAA Br. 9-10). Defendants additionally argue that even if they acted against Plaintiff because of her race, her allegations do not satisfy the pleading standards for either a hostile work environment or constructive termination. (LAS Br. 16-24; ALAA Br. 10-15). ALAA makes a separate argument, specific to the union context, that it did not breach the duty of fair representation owed to Plaintiff. (ALAA Br. 5-9).
In resolving this motion, the Court begins by enunciating the legal standards under
not alleged that she experienced a sufficiently hostile work environment to make out a plausible claim under Title VII.
A. Motions to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
A court adjudicating a motion to dismiss under
Additionally, the Court may take judicial notice of statements that Plaintiff made to media outlets that bear on her allegations in this case. See N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 127 n.11 (2d Cir. 2013) (“Generally, courts considering a motion to dismiss may take judicial notice of the fact that press coverage ... contained certain information so long as they do not rely on the truth of that information” (internal quotation marks omitted)).
B. Discrimination “Because of” Race Under Title VII
Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (“It is axiomatic that mistreatment at work, whether through subjection to a hostile environment or through such concrete deprivations as being fired or being denied a promotion, is actionable under Title VII only when it occurs because of an employee‘s ... protected characteristic.“). Because Defendants have argued principally that none of Plaintiff‘s allegations implicates a protected characteristic, the Court first discusses Title VII‘s causation
Under Title VII, “an action is ‘because of’ a plaintiff‘s [protected characteristic] where it was a ‘substantial’ or ‘motivating’ factor contributing to the employer‘s decision to take the action.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015); see also
characteristic under Title VII. See, e.g., Tsanganea v. City Univ. of New York, No. 06 Civ. 15366 (DAB) (JCF), 2008 WL 4054426, at *1 n.4 (S.D.N.Y. Aug. 28, 2008) (“[C]laims оf discrimination based on political belief are not actionable under Title VII[.]“), report and recommendation adopted, 2008 WL 4548857 (S.D.N.Y. Oct. 8, 2008).7
The crux of Plaintiff‘s Title VII claims is that the public statements issued by LAS and BALA criticized Plaintiff and her ability to work as a public defender because of her race. (Pl. Opp. 1). Plaintiff highlights the important context that LAS‘s and BALA‘s public statements were issued in direct response to Plaintiff‘s public objections to an ideology that “relentlessly insists all white people are racist” and forced her to identify foremost as a “white woman.” (Id. at 10-11). Plaintiff also alleges that BALA‘s and LAS‘s statements contain “numerous race-based falsehoods and false statements,” none of which would have been circulated if she were not white. (Am. Compl. ¶¶ 31, 41).
Chief among these asserted falsehoods, the statements present a warped interpretation of Plaintiff‘s views by painting her as a racist, an opponent of school integration, and a denier of
Defendants counter that the Amended Complaint is devoid of any allegations that would permit the Court to infer that they spoke out against Plaintiff because of her race, rather than her perspective on anti-racism. (LAS Br. 13; ALAA Br. 6-7). On Defendants’ account, BALA‘s and LAS‘s statements condemned only Plaintiff‘s perspective on anti-racism articulated in the Op-Ed, which perspective would be just as anathema to LAS‘s mission if expressed by an employee of any other race. (LAS Br. 12; ALAA Br. 8). LAS further contends that Plaintiff conceded that her views motivated Defendants’ statements through her allegations that she “was subjected to harassment for her political beliefs” (Am. Compl. ¶ 12); was constructively terminated for her “personal political and social beliefs” (id. at ¶ 34); and held “beliefs LAS thinks white people should not be allowed to hold” (id. at ¶ 57). (LAS Br. 11-12). Lastly, LAS points to several post-filing statements that Plaintiff made to media outlets
expressing her displeasure that LAS targeted her for her views. (LAS Br. 14-15).8
The Court‘s careful review of the BALA and LAS Statements demonstrates that they were not, as Defendants claim, limited to expressing disapproval of Plaintiff‘s politiсal views on an issue touching upon race. If this were the sum total of the statements, the Court would agree with Defendants that the statements would not implicate Title VII. But the LAS Statement goes further, expressly tying white attorneys’ — specifically Plaintiff‘s - ability to do the work of a public defender to whether they accept the anti-racist credo and assume the attendant responsibilities. Poignantly, the LAS Statement imposes additional obligations on white public defenders “merely because” they are white:
To be anti-racist, to dismantle racism here at LAS, and in every organization, we must all recognize that white supremacy drives every policy and law, every opportunity and every advantage. For those of us who are white, it is a recognition that power and privilege has been granted merely because we are white. While you have dedicated your life to public interest, you cannot do this work effectively and fully unless and until you face that reality and own that you are part of the problem. You cannot stop there, you must actively work to dismantle the systems that lend you privilege and oppress BIPOC people. To push against the deep work needed to change and be threatened by the conversation, is the exaсt definition of white fragility.... White people have a duty to no longer be silent and a responsibility to confront these systems of oppression
and to shun all forms of white supremacy in our society, in our workplaces, and within our hearts and minds.
The context and content of Defendants’ statements, including in particular LAS‘s stated expectation that white public defenders must shoulder additional responsibilities based solely on their race, convinces the Court that Plaintiff has adequately alleged that the statements were motivated, at least in part, by her race. See Vega, 801 F.3d at 85 (explaining that to sustain a claim under Title VII, a plaintiff must prоvide “at least minimal support for the proposition that the employer was motivated by discriminatory intent“); see also Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015) (“An inference of discrimination can arise from circumstances including, but not limited to, the employer‘s criticism of the plaintiff‘s performance in ethnically degrading terms; or its invidious comments about others in the employee‘s protected group[.]“). That these statements also rebuke Plaintiff for the views she articulated in the Op-Ed does not strip the statements of their racial overtones. See Rivera v. Rochester Genesee Reg‘l Transp. Auth., 743 F.3d 11,
23 (2d Cir. 2014) (citation omitted) (noting that a plaintiff alleging a hostile work environment under Title VII “need not demonstrate that [a protected characteristic] was the only motivating factor,” but need show only that a protected characteristic “was a motivating factor in the harassment“).
To be clear, the Court‘s finding that Plaintiff has plausibly alleged that Defendants’ criticism of Plaintiff was racially motivated is based on more than the mere fact that Plaintiff is white and was accused of being racist. Indeed, as a matter of both logic and precedent, accusations of racism against a white person are not ipso facto indicia of race-based discrimination. See Maraschiello v. City of Buffalo Police Dep‘t, 709 F.3d 87, 97 (2d Cir. 2013) (“[A] statement that someone is a ‘racist,’ while potentially indicating unfair dislike, does not indicate that the object of the statement is being rejected because of his race.“). Here, Plaintiff has alleged not just that she was accused of being a racist, but also that a caucus of her union and her employer issued statements impugning her competence to perform legal work for clients of different racial backgrounds because she was a white woman masquerading her “racist” views as a public defender. Given Defendants’ avowed disappointment that Plaintiff was a white person who failed to accept that her race and job title obligated her to adhere to their understanding of anti-racism — as expressed in explicit racial lines in their statements — the Court concludes that Plaintiff has adequately alleged that the BALA and LAS Statements were motivated, at least in part, by her race.
C. Plaintiff Fails to Allege a Hostile Work Environment
Given its finding that Plaintiff has plausibly alleged that Defendants’ statements were motivated by her race, the Court turns next to Plaintiff‘s claim that she experienced a hostile work environment. Plaintiff asserts such claims against both LAS and ALAA, stemming primarily from
1. The Legal Aid Society
a. Applicable Law
To adequately plead a claim against an employer for hostile work environment under Title VII, a plaintiff must plausibly allege that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim‘s employment and create an abusive working environment.” Littlejohn, 795 F.3d
at 320-21 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). This test has both objective and subjective elements: “the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.” Id.. “Moreover, to hold an employer liable for such a hostile work environment, federal law requires the plaintiff to show ‘a specific basis for imputing the conduct creating the hostile work environment to the employer.‘” Bentley v. AutoZoners, LLC, 935 F.3d 76, 90 (2d Cir. 2019) (quoting Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013)).
“As a general rule, incidents must be more than ‘episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.‘” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). “Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness,” although “even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff‘s workplace.” Id. (citations omitted). Distilling the applicable standard, the Second Circuit has explained that a plaintiff alleging a hostile work environment “must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were ‘sufficiently continuous and concerted’ to have altered the conditions of her working environment.” Id.
In determining whether a plaintiff has satisfied this burden, courts “examin[e] the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim‘s [job] performance.” Rivera, 743 F.3d at 20. “Hostile work environment claims are meant to protect individuals from abuse and trauma that is severe ... [but] are not intended to promote or enforce civility, gentility or even decenсy.” Isbell v. City of New York, 316 F. Supp. 3d 571, 591 (S.D.N.Y. 2018). Put differently, “excessive criticism and rudeness do not constitute a hostile work environment.” Ramirez v. Temin & Co., Inc., No. 20 Civ. 6258 (ER), 2021 WL 4392303, at *8 (S.D.N.Y. Sept. 24, 2021).
Plaintiff alleges four instances of harassment that, she claims, subjected her to a race-based hostile work environment at LAS: (i) Appling‘s email, sent to all LAS employees in late December 2019, asking Plaintiff not to associate LAS with her campaign for City Council (Am. Compl. ¶ 12; Belovin Decl., Ex. 1); (ii) BALA‘s initiation of a baseless investigation into Plaintiff at the close of 2019 (Am. Compl. ¶¶ 13-16); (iii) BALA‘s July 26, 2020 statement labeling Plaintiff as racist, which LAS retweeted on its official, verified Twitter account (id. at ¶¶ 29-31)9; and (iv) LAS‘s July 27, 2020 statement containing “numerous race-based false statements that injured Plaintiff” (id. at ¶ 40). As the Court will explain, these allegations, whether viewed individually or collectively, do not rise to the level of pervasiveness or severity to state a claim for hostile work environment under Title VII.
Beginning with Plaintiff‘s earliest allegation, the Court perceives no hostility or abuse in Appling‘s officewide email. Appling sent the email in response to Plaintiff‘s officewide announcement informing her colleagues that she planned to take a leave of absence in 2020 to run for City Council. (Belovin Decl., Ex. 1). Appling‘s message read, in full, “Requesting that you please leave the Legal Aid Society‘s name and recognition out of your campaign materials and speeches. It‘s not a good look for us.” (Id.). Embedded below the body of the email were three links: (i) a petition urging Plaintiff to resign from her Community Education Council position because she “has consistently attempted to undermine [DOE‘s] push for more diverse and inclusive schools” (Wolman Decl., Ex. 2); (ii) a news article summarizing the contents of this petition (id., Ex. 3); and (iii) a summary of a podcast expose on the fight to desegregate schools in New York City, on which Plaintiff was a featured guest (id., Ex. 4).
Plaintiff describes this email as “disparaging” and the first example of “racial harassment” she endured at LAS (Pl. Opp. 1-2), but the Court finds no invidious harassment in the email or the linked materials. Appling‘s message amounts to a request that Plaintiff distance LAS from her campaign for City Council that she had just announced to the workplace, presumably out of a concern that doing otherwise might associate LAS with Plaintiff‘s controversial position on education policy. Appling communicated this view civilly and without resorting to any language that could plausibly be construed as hostile. Subsequent emails exchanged between Appling and Plaintiff on this email chain reveal that Appling accepted Plaintiff‘s offer to engage in a constructive conversation on the issue of school segregation at a future
Next, Plaintiff asserts that the “baseless investigation” initiated by “politically motivated members” of BALA at the end of 2019 аdded to the air of race-based hostility in her work environment. (Pl. Opp. 15, 25). Accepting as true that this investigation was entirely politically motivated, as the Court must on this motion, LAS‘s alleged conduct during this investigation undermines Plaintiff‘s argument that LAS should be held liable for any hostility that may have flowed from the investigation. Plaintiff attributes the opening of the investigation to a “coordinated group of coworkers,” who further threatened to leak the fact of the investigation to the press to damage her campaign for City Council. (Pl. Opp. 15; see also Am. Compl. ¶¶ 14, 18). Ultimately, following a review of her caseload and interviews of three of her supervisors, Plaintiff was cleared of any wrongdoing, and the investigation was deemed unfounded. (Am. Compl. ¶¶ 15-16). Luongo, the Attorney-in-Charge of LAS‘s Criminal Defense Practice, is the only supervisor alleged to have been involved in the investigation, and, by Plaintiff‘s own allegations, she affirmatively assisted Plaintiff by promising her that LAS would “release a statement acknowledging [Plaintiff‘s] exemplary record of service when the fully anticipated and acknowledged attempt to smear her arose in the press.” (Id. at ¶ 21). Plaintiff argues that LAS‘s failure to release a statement in defense of Plaintiff reflects the organization‘s hostility, yet conspicuously absent from the Amended Comрlaint is any allegation that the BALA attorneys leaked any information regarding this investigation to trigger Luongo‘s promise. Without any basis to tie it to someone in a supervisory capacity at LAS, the prompting of this ultimately unfounded investigation by a group of Plaintiff‘s coworkers does not buttress Plaintiff‘s claim for hostile work environment against LAS. See Bentley, 935 F.3d at 91 (explaining that one basis for imputing a hostile work environment to an employer is “strict vicarious liability if an employer‘s supervisor has created the hostile environment“).
Turning to the heart of Plaintiff‘s hostile work environment claim against LAS, Plaintiff contends that LAS worked a transformation of her workplace when it issued a public statement calling into question her ability to perform her responsibilities as a public defender. (Pl. Opp. 14-16). Plaintiff posits that following the publication of the LAS Statement, her clients — a majority of whom are individuals of color
It is true that “a hostile work environment can be established through evidence of a single incident of harassment that is extraordinarily severe.” Miller v. N.Y. State Police, No. 20-3976, 2022 WL 1133010, at *2 (2d Cir. Apr. 18, 2022). But the Court is hard-pressed to compare the LAS Statement to the singular incidents of harassment that courts have found to be so “extraordinarily severe” as to create a hostile work environment. See, e.g., Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (holding that a single instance of verbal abuse gave rise to a hostile work environment where co-worker went on a “tirade” about female plaintiff being promoted to lieutenant for performing fellatio, “at length” and “loudly” in front of large group of male subordinates); see also Pryor v. Jaffe & Asher, LLP, 992 F. Supp. 2d 252, 255, 259 (S.D.N.Y. 2014) (finding single incident to give rise to hostile work environment where co-worker subjected female plaintiff to sexual advances and forcibly tried to kiss her, despite knowing she was a recent domestic violence victim); cf. Albert-Roberts v. GGG Constr., LLC, 542 F. App‘x 62, 64 (2d Cir. 2013) (summary order) (rejecting plaintiff‘s argument “that the single use of the [n-word] is so severe as to make out a prima facie case and survive summary judgment“).
As critical of Plaintiff as the LAS Statement is, it uses no racial epithets, reveals no personally sensitive or private information, and levies no salacious allegations, any of which would enhance the statement‘s severity for the purpose of the Title VII analysis.10 To be sure, the content of the statement makes clear that LAS harbors doubts concerning Plaintiff‘s ability to represent individuals of color as a public defender, and the Court has already determined that LAS‘s decision to release this statement was motivated in part by Plaintiff‘s race. While the Court views the statement as sufficiently implicating Plaintiff‘s race to bring it within the ambit of the federal civil rights laws, the statement is more than just a missive targeting Plaintiff. It stakes out LAS‘s stance on an issue of public importance; articulates the organization‘s mission vis-a-vis the constituencies it works to support; calls on the organization as a whole for failing to realize this mission; and commits the organization to doing more to address issues of systemic racism in the future. Even accepting Plaintiff‘s characterization that the statement constituted an unfair attack and mischaracterized her views, it does not meet the requisite standard for a Title VII hostile work environment claim. See, e.g., Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 303 F. App‘x 943, 945 (2d Cir. 2008) (summary order) (holding that derogatory language from supervisor, dismissive comments from management, and intense scrutiny of
Plaintiff urges the Court to consider the public nature of the LAS Statement in assessing its severity. (Pl. Opp. 15). Taking heed of this fact, the Court finds that the content of the statement, when analyzed in its proper context, further suggests that it is insufficient to support Plaintiff‘s claim for hostile work environment. LAS issued its statement on the heels of the BALA Statement from the day prior and in response to Plaintiff‘s controversial Op-Ed, which she wrote while on sabbatical and running a campaign for City Council. Needless to say, this political context does not give LAS carte blanche to issue derogatory statements premised on any employee‘s race; however, the fact that Plaintiff injected herself into the public discourse on a matter of public importance implicating race, and identified herself as a public defender in doing so, provides important context to LAS‘s decision to release the statement in the first place. In other words, the statements were not gratuitous, out-of-the blue, racialized attacks on Plaintiff, but rather represented LAS‘s attempt to distance itself from the position articulated in the Op-Ed. (LAS Br. 20-21).
The Court finds several additional factors relevant to its analysis. The Court first notes that the fact that Plaintiff was on sabbatical and not actually present in the workplace when she instigated what became a public debate on this issue unavoidably reduces the degree of hostility Plaintiff experienced. Furthermore, the LAS Statement, even on its own terms, did not represent the organization‘s final say on the issue, as the organization avowed to “bravely have the much needed, and long overdue, conversations and engag[e] in the critical dialogue and discourse concerning racism, transphobia, sexism and intersectionality.” (LAS Statement 1). And while Plaintiff‘s writings in the New York Post were the impetus for LAS‘s public proclamation, a swath of the LAS Statement is devoted to expressing LAS‘s views on how best to “fight for justice for [its] clients” and “advocate against and litigate policies and laws that silence and oppress BIPOC and communities of color.” (Id.). In this context, the Court does not view the LAS Statement, on its own, as exposing Plaintiff to a hostile work environment.
Plaintiff cites two cases for the proposition that “single statements made in public about private matters can be severe enough to meet the hostile work environment threshold,” but both are easily distinguishable from the case at bar. (Pl. Opp. 15 (citing Cherry v. N.Y.C. Hous. Auth., 564 F. Supp. 3d 140, No. 15 Civ. 6949 (MKB), 2021 U.S. Dist. LEXIS 191353 (E.D.N.Y. Sept. 30, 2021); Roberts v. Clark Cnty. Sch. Dist., 215 F. Supp. 3d 1001, 1017 (D. Nev. 2016))). For instance, in Cherry, Judge Brodie denied summary judgment on the plaintiff‘s claims for hostile work environment based on his gender, sexual orientation, and disability status. Cherry, 2021 U.S. Dist. LEXIS 191353, at *68-88. Plaintiff highlights Judge Brodie‘s discussion of the Cherry plaintiff‘s allegation
Even expanding Plaintiff‘s allegations to include LAS‘s retweet of the BALA Statement does not alter the Court‘s conclusion. As an initial matter, the publication of two harmful statements, both concerning the same subject matter, in rapid succession — indeed, within 24 hours of each other — cannot qualify as pervasive for purposes of the Title VII analysis. See, e.g., Sandler v. Montefiore Health Sys., Inc., No. 16 Civ. 2258 (JPO), 2018 WL 4636835, at *9 (S.D.N.Y. Sept. 27, 2018) (“As a general rule, incidents must be more than ‘episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.‘” (quoting Alfano, 294 F.3d at 374)). While LAS‘s retweet of the BALA Statement can plausibly be perceived as an endorsement of BALA‘s repeated assertion that Plaintiff “is racist, and openly so” (BALA Statement 2), such criticism, even if unwarranted, does not suffice to create a hostile work environment in these circumstances. See Ramirez, 2021 WL 4392303, at *8 (“[E]xcessive criticism and rudeness do not constitute a hostile work environment.“). Just like the LAS Statement, the BALA Statement and LAS‘s retweet of the same existed in conversation with Plaintiff‘s Op-Ed on a politicized topic. Further, it is difficult to see how LAS‘s retweet could have interfered with the performance of Plaintiff‘s responsibilities as a public defender when Plaintiff was on sabbatical at the time and remains so to this day. (Am. Compl. ¶ 8).
The Court‘s conclusion that Plaintiff has not alleged a hostile work environment under Title VII is not intended to trivialize the harsh criticism that Plaintiff encountered during the 24-hour period in July 2020 when BALA and LAS released the statements at issue. But harsh criticism, even that Plaintiff alleges was unwarranted, does not itself make out a claim for hostile work environment. Here, the totality of the circumstances — namely, the fact that the statements were in response to a highly politicized Op-Ed authored by Plaintiff, that Plaintiff was on sabbatical campaigning for City Council at the time the statements were issued, and that LAS sought to stake out a broader position on a matter of public poliсy, beyond merely
Accordingly, the Court dismisses Plaintiff‘s hostile work environment claim against LAS.11
2. Association of Legal Aid Attorneys
Plaintiff brings a separate Title VII hostile work environment claim against ALAA, resting on substantially the same allegations that were addressed above. (Pl. Opp. 24-26). As the Court has already discussed, Plaintiff has not alleged that she endured a hostile work environment, thus necessitating dismissal of her hostile work environment claim against ALAA.
a. Applicable Law
Under Title VII, a union may not “discriminate against any individual because of his race, color, religion, sex, or national origin” or “cause or attempt to cause an employer to discriminate against an individual in violation of this section.”
In order for “a union representative‘s role in causing or attempting to cause a hostile work environment to be properly imputed to a union, a plaintiff must show not only that the union had actual or imputed knowledge of the improper conduct, but also that the union representative‘s conduct related to union activity and that therefore, in acting in such a manner, the representative breached the duty of fair representation.” Agosto, 107 F. Supp. 2d at 308. Put differently, “a union‘s liability under Title VII rests on the union‘s duty of fair representation,” which requires a union “in relation to all union activity to treat all members ‘without hostility or discrimination ... [in] complete good faith and honesty, and to avoid arbitrary conduct.‘” Id. (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)); see also Grandy, 2018 WL 4625768, at *24 (“While the Second Circuit case law on the issue is thin, the preponderance of authority suggests that [a union] cannot be liable for hostile work environment under Title VII ... for conduct that does not fall within its duty of fair representation.“); Oparaji v. United Fed‘n of Tchrs., 418 F. Supp. 2d 139, 146 (E.D.N.Y. 2006) (observing that “[t]o establish a Title VII claim concerning representation
“[B]reach [of the duty of fair representation] occurs only when a union‘s conduct toward a member ... is arbitrary, discriminatory, or in bad faith,” United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 372 (1990) (internal quotation marks omitted), or “when [the union] causes an employer tо discriminate against employees on arbitrary, hostile, or bad faith grounds,” Ramey v. Dist. 141, Int‘l. Ass‘n of Machinists & Aerospace Workers, 378 F.3d 269, 277 (2d Cir. 2004). A union‘s conduct is “arbitrary” if it is “so far outside a wide range of reasonableness that it is wholly irrational.” Dillard v. SEIU Loc. 32BJ, No. 15 Civ. 4132 (CM), 2015 WL 6913944, at *5 (S.D.N.Y. Nov. 6, 2015) (quoting Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45 (1998)). “A union‘s acts are discriminatory when ‘substantial evidence’ indicates that it engaged in discrimination that was ‘intentional, severe, and unrelated to legitimate union objectives.‘” Id. (quoting Vaughn v. Airline Pilots Ass‘n, Int‘l, 604 F.3d 703, 709 (2d Cir. 2010)). Finally, “[a] showing of bad faith requires a showing of fraudulent, deceitful, or dishonest action” by a union. Id. (quoting White v. White Rose Food, 237 F.3d 174, 179 (2d Cir. 2001)).
b. Analysis
In support of her hostile work environment claim against ALAA, Plaintiff alleges that union representatives engaged in race-based harassment by: (i) initiating a baseless investigation into Plaintiff at the close of 2019 (Pl. Opp. 25); and (ii) publishing the BALA Statement on July 26, 2020 (id. at 24).12 Even assuming that Plaintiff has alleged a breach of the Union‘s duty of fair representation, her hostile work environment claim cannot survive because she has not adequately alleged the existence of a hostile work environment.
The Court finds certain of Plaintiff‘s allegations concerning ALAA‘s breach of the duty of fair representation to be plausible. Plaintiff‘s most persuasive argument in this regard relates to the publication of the BALA Statement, specifically that ALAA‘s publication of “a statement maliciously accusing [its] own member of being unable to do her job becausе of her race” was discriminatory conduct that breached the duty of fair representation. (See Pl. Opp. 27). ALAA emphasizes as part of its mission statement that the “Union does not merely represent members in contract negotiations, grievances, and arbitrations ... [because its] mission requires it ‘to advocate through political outreach for the advancement of the interests of our membership, our clients and of poor and working people in general.‘” (ALAA Reply 4 (quoting About ALAA, ASS‘N OF LEGAL AID ATT‘YS, https://www.alaa.org/about-alaa
As already discussed above, Plaintiff has failed to plead the existence of circumstances sufficiently severe or pervasive to constitute a hostile work environment. With respect to conduct that may be attributable to the Union, Plaintiff alleges the initiation of a baseless investigation at the end of 2019 and the publication of the BALA Statement in June 2020. As in the context of her employer, these allegations fail to rise to the level of severity or pervasiveness to make out a hostile work environment under Title VII. First, even accepting Plaintiff‘s contention that BALA prompted a baseless investigation into Plaintiff, the course of the investigation does not evince hostility or harassment sufficiently severe to meaningfully contribute to a hostile work environment. Besides the alleged improper motive underpinning the investigation, there is no allegation that ALAA biased, unfairly influenced, or in any way skewed the outcome of the investigation. To the contrary, Plaintiff indicates that she was accompanied by a union representative at the January 13, 2020 meeting where Luongo informed Plaintiff that she had been cleared of any wrongdoing and the investigation was deemed unfounded. (Am. Compl. ¶¶ 16-17). Plaintiff proffers no allegation that her Union representative discriminated against her or provided her deficient representation in connection with this investigation.
Second, for substantially the same reasons why the LAS Statement did not expose Plaintiff to a hostile work environment, neither did the publication of the BALA Statement. Plaintiff initiated the public debate that impelled BALA to release its statement. The statеment does not merely denigrate Plaintiff because of her race, but also represents BALA‘s challenge to the views expressed in the Op-Ed. In addition, Plaintiff was on leave from LAS and actively running a campaign for City Council at the time of the statement‘s release, which necessarily undermines her contention that this statement impacted her work as a public defender. Cf. Kleinman v. Fashion Inst. of Tech., No. 16 Civ. 4348 (KPF), 2017 WL 3016940, at *11 (S.D.N.Y. July 14, 2017) (dismissing claim for hostile work environment resting on allegations that occurred after Plaintiff went on medical leave). Plaintiff‘s attempt to analogize this case to an instance of harassment against an individual who is working remotely is inapt (Pl. Opp. 26), because Plaintiff was not merely physically removed from the office. Instead, she was not working at all for LAS, given that she was on sabbatical and campaigning for a seat on City Council at the time the statement was released.
Third, even when viewed collectively, Plaintiff‘s allegations do not amount to a hostile work environment. Plaintiff has alleged two incidents attributable to ALAA over the course of approximately six months, which fail to rise to the level of “continuous and concerted” activity necessary to establish a “pervasive” hostile work environment. Littlejohn, 795 F.3d at 321; see also, e.g., Garcia v. NYC Health & Hosps. Corp., No. 19 Civ. 997 (PAE), 2019 WL 6878729, at *7 (S.D.N.Y. Dec. 17, 2019) (dismissing hostile work environment claim where plaintiff allegеd that his “supervisor yelled at him on four occasions over three months“); Chukwueze v. NYCERS, 891 F. Supp. 2d 443, 455 (S.D.N.Y. 2012) (granting motion to dismiss hostile work environment claim where plaintiff alleged three incidents over a year in which he had been chastised and berated in front of coworkers). And for the reasons already discussed at length, these allegations are insufficiently severe to give rise to a hostile work environment.
Accordingly, the Court dismisses Plaintiff‘s hostile work environment claim against ALAA.
D. Plaintiff Fails to Allege Constructive Discharge
In her final claim, Plaintiff asserts that LAS constructively terminated her while she was on sabbatical. (Pl. Opp. 16-18). Plaintiff alleges that “[w]here an employer proclaims to the world that you are not capable of performing your job because you are a white woman who holds beliefs the employer opposes white employees from having, it is so intolerable that a reasonable person would feel compelled to resign.” (Am. Compl. ¶ 87). LAS advocates for dismissal of this claim on several interrelated grounds, including that Plaintiff has failed to allege (i) the existence of a hostile work environment, (ii) that LAS acted with the requisite intent, and (iii) that she has (or even will) leave LAS. (LAS Br. 22-24; LAS Reply 9-10). Because Plaintiff attempts to dilute the applicable legal standard for constructive termination and because she has failed to allege that she, in fact, resigned from her position at LAS, her claim cannot withstand LAS‘s motion to dismiss.13
“The constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that his ‘working conditions become so intolerable that a reasonable person in the employee‘s position would have felt compelled to resign.‘” Green v. Brennan, 578 U.S. 547, 555 (2016) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)); see also Shultz v. Congregation Shearith Israel of N.Y., 867 F.3d 298, 308 (2d Cir. 2017) (explaining that a constructive discharge claim under Title VII requires a plaintiff to allege facts indicating (i) “the employer‘s intent to create an intolerable environment that forces the employee to resign” and (ii) “work conditions so intolerable that [a reasonable person] would have felt compelled to resign“). A claim of constructive discharge has two basic elements: (i) “[a] plaintiff must prove first that he was discriminated against by his employer to the point where a reasonable person in his position would have felt compelled to resign” and (ii) a plaintiff “must also show that he actually resigned.” Green, 578 U.S. at 555; see also Brescia v. LTF Club Mgmt. Co., LLC, No. 18 Civ. 8715 (NSR), 2020 WL 137311, at *6 (S.D.N.Y. Jan. 9, 2020) (“Resignation is the sine qua non of a constructive discharge claim.“).
Fatal to Plaintiff‘s constructive discharge claim is her failure to allege that she has actually resigned from LAS. Instead, by Plaintiff‘s own allegations, she remains on sabbatical with an open offer to return to LAS. (Am. Compl. ¶ 8 (“Plaintiff has been on sabbatical. Although she has been on sabbatical, at all relevant times herein she remained an employee of LAS and a member of ALAA.“); id. at ¶ 33 (“[Plaintiff] is currently promised a return from sabbatical pursuant to § 3.4.4.1.2 of the [Collective Bargaining Agreement.])). This fact alone compels the dismissal of her constructive discharge claim.
Even if Plaintiff had alleged her resignation from LAS, her allegations would still fail to state a claim for constructive discharge.
Plaintiff‘s argument that a reasonable person might not want to return to a workplace following the release of a statement such as that released by LAS is well taken by the Court. (Am. Comp. ¶ 87). But, letting a constructive discharge claim survive on these allegations runs the risk of diminishing the applicable standard, which is saved for cases in which “the abusive working environmеnt became so intolerable that [plaintiff‘s] resignation qualified as a fitting response.” Suders, 542 U.S. at 134. As described above, the circumstances of this case convince the Court that Plaintiff was not exposed to a hostile environment, especially given the fact that she was on sabbatical doing work unconnected to her role as a public defender at the time the statements at issue were released. Therefore, the Court dismisses Plaintiff‘s claim for constructive discharge.
CONCLUSION
For the foregoing reasons, LAS‘s and ALAA‘s motions to dismiss are GRANTED in full. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case.
SO ORDERED.
Dated: June 2, 2022
New York, New York
KATHERINE POLK FAILLA
United States District Judge
Notes
LAS contends that it is shielded from liability for its retweet of BALA‘s statement by Section 230 of the Communications Decency Act,
The Court harbors doubts as to whether Section 230 bars an employer from being held liable for retweeting a statement that allegedly contributes to a hostile work environment. Cf. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101-02 (9th Cir. 2009), as amended (Sept. 28, 2009) (explaining that under Section 230, “courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant‘s status or conduct as a ‘publisher or speaker‘” and “[i]f it does, [S]ection 230(c)(1) precludes liability.“). It need not definitively resolve this issue, however, as even assuming LAS can be held responsible for its retweet of the BALA Statement, the Court concludes that Plaintiff has failed to allege circumstances amounting to a hostile work environment.
This is not to say that any such elements are necessary conditions to make out a hostile work environment based on an alleged single incident of racial harassment, but rather that the totality of circumstances in this case do not suggest that these statements exposed Plaintiff to a hostile work environment. See Dawson v. Cnty. of Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (“Courts look to the totality of the circumstances in determining whether a plaintiff has established a hostile work environment claim ... [and] no single factor is required.“).
LAS additionally argues in a footnote in its opening brief that “Plaintiff‘s claims plainly implicate New York‘s recently amended Civil Rights Law addressing strategic lawsuits against public participation (‘SLAPPs‘).” (LAS Br. 21 n.6 (citing
Plaintiff further alleges that ALAA caused LAS to discriminate against Plaintiff by allowing LAS to retweet its statement. (Pl. Opp. 24 & n.17; see also Am. Compl. ¶¶ 67-70). This argument is unavailing. According to Plaintiff, ALAA should be held responsible for LAS‘s retweet because ALAA failed to block LAS‘s Twitter account or adjust its account settings to prevent LAS from retweeting the statement. (Pl. Opp. 24 n.17). The Court does not believe that ALAA can be held responsible for either of these omissions. ALAA‘s failure to adopt Plaintiff‘s preferred course of action does not transform the Union‘s mere posting of a statement on its public Twitter account into an affirmative inducement of LAS to retweet or endorse the statement. Without any word or deed to support the allegation that ALAA encouraged LAS to retweet the BALA Statement, there is no basis to hold the Union responsible for LAS‘s conduct.
ALAA also argues that Plaintiff has failed to state a claim of constructive termination. (ALAA Br. 13-15). However, Plaintiff has not asserted such a claim against the Union.