Case Information
USDC SDNY DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: _________________ SOUTHERN DISTRICT OF NEW YORK DATE FILED: 10/25/2021 ----------------------------------------------------------------- X NAFEESA SYEED and NAULA NDUGGA, on :
behalf of themselves and similarly situated women , :
: Plaintiff, : 1:20-cv-7464-GHW -against- : : MEMORANDUM OPINION &
BLOOMBERG L.P., : ORDER : Defendant. :
----------------------------------------------------------------- X
GREGORY H. WOODS, United States District Judge:
I. INTRODUCTION
Plaintiff Nafessa Syeed, who is a South Asian-American woman, worked as a reporter and producer for Bloomberg’s Dubai news bureau before relocating to the United States, at which time she began reporting from Bloomberg’s Washington D.C. bureau. She claims that while working in Washington D.C., she was denied promotions for which she was well-qualified, paid less than her male counterparts, and regularly subjected to derogatory conduct and remarks targeting her race and gender until she was allegedly constructively discharged in 2018. Plaintiff Naula Ndugga, a Black woman who works for Bloomberg’s Media Division in New York, raises similar allegations, focused on the allegedly discriminatory policies and practices imposed by the firm’s three man “Editorial Management Committee,” which controls hiring and advancement at Bloomberg.
Ms. Syeed and Ms. Ndugga assert claims on behalf of themselves and a putative class of similarly situated current and former women employees under Title VII, the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). Defendant has moved under Rule 12(b)(6) to dismiss the complaint for failure to state a claim. Because Ms. Syeed, who at all relevant times worked in Washington D.C., has not pleaded that felt the impact of Bloomberg’s discrimination in New York City or State, her claims under the NYSHRL and NYCHRL must be dismissed. Because Ms. Ndugga has plausibly pleaded that she is treated less well than comparable men at Bloomberg, the bulk of her discrimination claims against Bloomberg may proceed. However, her Title VII claims, failure to promote claims under the NYCHRL and NYSHRL, and disparate impact claims under the NYSHRL are dismissed.
II. BACKGROUND AND PROCEDURAL HISTORY [1]
A. Defendant Bloomberg L.P.
Bloomberg L.P. (“Bloomberg”) is a privately held media company. SAC ¶ 11. Its global headquarters are located in in New York City. Id. ¶ 9. Bloomberg operates Bloomberg Media, a news organization that employs approximately 2,700 reporters, producers, editors across over 120 news bureaus worldwide. Id. ¶¶ 12, 16. Approximately 1,000 of those 2,7000 reporters, producers and editors are women. Id. ¶ 16.
Bloomberg Media’s news content and employment decisions are controlled by its Editorial Management Committee, which operates from its New York headquarters and reports to Bloomberg founder and CEO Michael Bloomberg. Id . ¶¶ 12, 14, 17–18. All three members of the Editorial Management Committee are men. Id. ¶¶ 14, 17.
1. Promotion Practices When Bloomberg Media has a job opening, it first posts the opening on an internal career portal. Id. ¶ 27. If it is unable to fill the opening internally, it advertises the opening publicly. Id . Candidates for hiring or promotion are interviewed by bureau chiefs and senior editors. Id. ¶ 28. However, only the Editorial Management Committee has the authority to hire or promote employees. Id. ¶¶ 16, 28.
Reporters at Bloomberg Media can be promoted from reporter to senior reporter, then to editor, to senior editor, and ultimately bureau chief. Id. ¶ 29. There are also gradations within reporter positions: reporters assigned to certain subject areas, such as foreign policy, are considered “higher level positions” and employees who hold those roles are more likely to be promoted to a position as a senior reporter or editor. Id. Producers at Bloomberg Media can be promoted from producer to a position as senior producer and subsequently, executive producer. Id. ¶ 30. Like reporters, producers assigned to certain subject areas are considered “higher level” and those who hold the positions are more likely to be promoted. Id.
Both Plaintiffs allege that they were passed over for promotions for which they were well qualified. Id . ¶ 31. They allege that Bloomberg Media engages in practices that limit the opportunities for promotion available to individuals who are not white men. For example, the Editorial Management Committee designated certain positions as “diversity slots.” Id. ¶ 32. Ms. Syeed understood that while “diversity slot” positions might be filled by women or people of color, non-“diversity slot” positions would effectively be filled only by white men. Id. Ms. Syeed was once told by a managing editor that she had not been considered for a particular promotion because the position had not been designated a “diversity slot.” Id.
2. Compensation and Evaluation Practices When an individual is hired by Bloomberg, they are asked what their current or most recent salary is or was. Id. at ¶ 33. The Editorial Management Committee then decides the starting salary that will be authorized for the individual, determining that salary largely based on the individual’s prior pay. Id. The Editorial Management Committee often agrees to offer more money to male reporters or editors who “seek[] a better salary,” but declines to do the same for new female hires; male reporters are frequently hired at salaries that are $20,000 or more above the salaries of their female peers. Id. ¶ ¶ 34–35. These starting salaries continue to impact compensation throughout an employee’s tenure at Bloomberg Media because, even if equal pay raises were given to men and women, the disparities created by this disparate starting pay would continue in a phenomenon called “start low, stay low.” Id. ¶ 36.
Compensation for reporters, producers, and editors can be impacted by evaluations that take place every six months, but the ultimate decisions on compensation, including bonuses and pay raises, are made by the Editorial Management Committee. Id. ¶¶ 40–42. At mid-year and year-end, reporters, producers, and editors are evaluated by their team leaders, who rate each employee on a scale from one to five, with five being the best rating. Id. ¶¶ 40. Those draft evaluations are then approved by bureau chiefs and forwarded to the Editorial Management Committee. Id. The Editorial Management Committee routinely directs bureau chiefs to change certain employees’ ratings, and dictates which employees should have their ratings reduced. Id. The Editorial Management Committee then uses the employees’ low ratings to justify denying or limiting the employees’ bonuses, raises, and promotions. Id. ¶ 41–42.
B. Plaintiff Nafeesa Syeed
Ms. Syeed is a South Asian-American woman who currently resides in California. Id. ¶ 7. Ms. Syeed worked for Bloomberg from October 19, 2014 to June 8, 2018. Id . ¶¶ 7, 56. She began her work for Bloomberg as a Persian Gulf economy and government reporter in Bloomberg’s Dubai news bureau. Id. ¶ 56.
1. Ms. Syeed Relocates to Washington D.C. In or around October 2015, Ms. Syeed told Bloomberg that she had married and needed to relocate to the United States. Id. ¶ 61. She told Bloomberg that she intended to apply for editorial positions in the company’s New York and Washington, D.C. offices. Id. She visited the New York and Washington D.C. offices and met with editors in both offices to express her interest in open positions relating to foreign policy, her preferred topic and area of expertise. Id. ¶¶ 62–63.
In early 2016, Ms. Syeed unsuccessfully applied for multiple reporting positions in New York and Washington, D.C. Id. ¶¶ 64–66. In January or February, she applied for a position as a foreign policy reporter in Bloomberg’s Washington D.C. news bureau. Id. ¶ 64. The position was initially posted internally but later posted publicly. Id. It was ultimately filled by a man. Id.
Ms. Syeed was hired for a position in Bloomberg’s Washington D.C. news bureau on March 20, 2016. Id. ¶¶ 64–66. While initially hired for a broadly defined role that would have her report on technology, national security, and foreign policy, she learned after being hired that she was a finalist for a foreign policy reporting position. Id. ¶ 66. However, after further interviews, she was instead asked to cover cybersecurity to replace a man who had been promoted. Id.
After Ms. Syeed moved to Washington, a representative from human resources told Ms. Syeed that her salary would be increased to be “more in line” with other D.C.-based reporters’ salaries. Id. ¶ 70. Ms. Syeed learned that despite her raise, she still earned less than her male peers and that, on average, women reporters’ salaries were 20% lower than male reporters’ salaries. Id. ¶¶ 70, 76. In 2017, her manager told her that she could ask for a raise, but then denied her request for a five-percent raise because she had made it “too late.” Id. ¶ 76.
2. Ms. Syeed Faces Alleged Discrimination While in Washington, Ms. Syeed encountered behavior by her male colleagues that she considered to be discriminatory. For instance, Ms. Syeed’s superiors at the Washington D.C. bureau frequently confused Ms. Syeed with another South Asian female colleague. Id. ¶ 71. She also overheard her superiors make negative comments about the professional acumen of female minority employees, and her work was marginalized in favor of male reporters and editors. Id. ¶ 72. She also found herself excluded from roundtables with high-profile sources, even where she was the reporter in charge of covering the story to whom the source was relevant. Id . ¶ 75. Ms. Syeed’s superiors also declined her request for access to Bloomberg’s secure communications equipment while granting similar requests made by “[f]avored male members of the newsroom.” Id . ¶ 80. Moreover, throughout her time at Bloomberg. Ms. Syeed continued to be paid “well below the level of her male peers.” Id. ¶ 76.
In addition, Ms. Syeed was denied the opportunity to report on topics that she wanted to cover, while she saw male reporters having their preferred beats assigned to them. Id. ¶ 78. For instance, even though Ms. Syeed expressed an interest in covering the Middle East and foreign policy, she was told that the Washington D.C. bureau’s chief wanted her to cover election security. Id . After that, a male reporter who covered Middle East later confided to Ms. Syeed that he had been instructed to stop talking to her and that if he was seen talking to Ms. Syeed he would be reprimanded by senior management. Id. Editors in Bloomberg’s Dubai bureau also informed Ms. Syeed that they had been instructed to longer contact her about anything related to the Middle East. Id. Because Ms. Syeed was unable to work on her preferred topics, she was prevented from developing deeper expertise within a subject area. Id. ¶ 77. That, in turn impeded her chances at promotion because male executives judged reporters based on “scoops and depth of sourcing within institutions, rather than coverage of breaking news.” Id .
In mid-2018, Ms. Syeed realized that there was no career path for her in Bloomberg’s Washington D.C. bureau because she had been completely shut out of Middle East coverage. Id. ¶ 81. She then applied for several reporting jobs with Bloomberg in New York. Id. ¶¶ 81–82. In particular, Ms. Syeed repeatedly told her team leader that she was interested in filling a particular vacancy in the United Nations bureau. Id. ¶¶ 79, 82. That vacancy was ultimately filled by a man. Id. ¶ 82. When Ms. Syeed asked her team leader why she had not been considered for the position, he claimed that she had never said that she wanted to cover foreign policy and that she had to advocate for herself if she wanted to advance at Bloomberg. Id. ¶ 82. Another editor also told Ms. Syeed that she needed to advocate for herself to be promoted. Id. ¶ 83. However, Ms. Syeed had watched several of her male co-workers receive promotions after working at Bloomberg for the same amount of time as she. Id. Moreover, Ms. Syeed had not observed them “advocating” for themselves in the manner that Bloomberg required from its female employees. Id.
During the same conversation, an editor told Ms. Syeed that one of the reasons she was not considered for the U.N. job was that the job had not been designated as a “diversity slot.” Id. ¶ 84. Ms. Syeed explained her belief that she would only be considered for positions that had been designated as diversity slots, rather than any and all vacant positions. Id. She further explained that she did not want to be treated as a “token” employee, and pointed out that there were “no minority women in leadership roles,” and that she felt like she had no future in Bloomberg Media overall. Id.
3. Ms. Syeed and Bloomberg Part Ways Ms. Syeed met with Tamika Alexander, Head of Human Resources for the Washington, D.C. bureau on June 6, 2018, and told her about the editor’s comments about “diversity slots” and about her belief that that Bloomberg had a “racist and sexist culture.” Id. ¶ 87. Ms. Alexander, who had previously filed a complaint against Bloomberg with the Equal Employment Opportunity Commission (the “EEOC”) after experiencing pregnancy discrimination, said that she was aware of the issues Ms. Syeed raised. Id. Ms. Alexander instructed Ms. Syeed to pass along her concerns to a recently named senior executive editor for diversity, talent, standards, and training at Bloomberg Media, who worked in Bloomberg’s New York offices.
On June 8, 2016, Ms. Syeed informed her team leader that she could not continue working at Bloomberg because of the discrimination that she faced. Id. ¶ 88. She then met with her managing editor to tell him that she was leaving Bloomberg, an interaction that ended with him “pressing [her] about where she would be working next, and if it was for a competitor.” Id.
C. Plaintiff Naula Ndugga
Ms. Ndugga is a Black woman who lives and works in New York. Id. ¶¶ 8–9. She began working at Bloomberg as a paid intern in September 2017 before obtaining a full-time position in January 2018 as a news producer for Bloomberg Media’s “Quicktake” department, which remains her current position. Id. ¶¶ 8, 93.
1. Ms. Ndugga’s Salary When she began her full-time role, Ms. Ndugga earned a salary of $65,000, while male producers also hired from her intern class earned a salary of $75,000. Id. ¶¶ 37, 94. Over the next three years, Ms. Ndugga received positive feedback from her supervisors but nevertheless received only one $1,500 raise. Id. ¶ 96–97, 99, 103. Ms. Ndugga did not receive a bonus in 2018. Id. ¶ 98. In 2019, although her team leader recommended that she receive a raise and bonus, the Editorial Management Committee ultimately denied Ms. Ndugga a raise and gave her only half of her bonus. Id. ¶¶ 98–99. Again in February 2020, Ms. Ndugga did not receive a raise, despite her manager’s recommendation that she be given one. Id. ¶ 103. Although Ms. Ndugga was told that she had not received a raise because company could not afford raises for her division, she learned from some of her male colleagues that they had received raises. Id. In a July 2020 meeting with the Editorial Management Committee, Ms. Ndugga asked about the gender pay gap at the company. Id. ¶ 110. A member of the committee told her that no such pay gap existed. Id.
Ms. Ndugga received fewer resources from Bloomberg than her male colleagues. Id. ¶ 100. For example, Bloomberg denied Ms. Ndugga’s request for technology to work remotely, while granting the same request when made by her male peers. Id. The company also denied her request to take courses to maintain language skills useful to her reporting, although Bloomberg supported other employees in similar endeavors. Id. When she reported the differences in the way that she was treated to Bloomberg’s human resources department, they defended management. Id. ¶ 101.
2. Ms. Ndugga’s Professional Opportunities In fall 2019, Ms. Ndugga’s male colleagues were assigned to cover their preferred topics, while Ms. Ndugga “was assigned to cover ‘scraps’”—subjects no one else wanted, which were generally considered less desirable assignments that provided fewer opportunities for career advancement.” Id. ¶ 102. Although some colleagues noticed that Ms. Ndugga was being treated differently and mentioned that fact to management, their concerns were ignored, and Ms. Ndugga continued to receive undesirable assignments. Id.
In March 2020, Ms. Ndugga approached her team leader about promoting her to a position “specifically focused on race and identity to guide the team.” Id. ¶ 104. After making the request, two colleagues approached Ms. Ndugga and told her that “there was no point in creating that role and promoting her if she already filled that role by being a Black woman on the team.” Id.
Bloomberg’s Editorial Management Committee “repeatedly refused to cover racial topics” even when they were among the “top news stories.” Id. ¶ 110. Ms. Ndugga’s help was solicited to “help guide the team,” on racial issues, which required her to “recount her own trauma,” but the team did not defer to her when she advised them to stop using the word “colored” in news scripts. Id. On one occasion, Ms. Ndugga had prepared to conduct a live interview with one of her sources regarding the murder of George Floyd, including by participating in a required training for on-air interviews, but was prevented from doing so because her superiors said that only “certain people” were qualified to conduct on-air interviews. Id. ¶ 109. Her male colleagues, however, were allowed to conduct such interviews even though they had not received the required training. Id. 3. Colleagues’ Conduct and Alleged Retaliation
Ms. Ndugga also faced regular derogatory comments from colleagues and pushback when she questioned racist behavior. Id. ¶¶ 105–06. Some of her more senior colleagues “would opine regularly on Black culture and issues, making pronouncements such as that Black people should not criticize Bruno Mars or asking Black team members whether it was appropriate for them to refer to February as Black history month.” Id. ¶ 105.
On one occasion, Ms. Ndugga questioned the choice to depict a “young white woman holding seemingly impoverished Black Ugandan children” in a piece on marathons. Id. ¶ 106. Ms. Ndugga’s supervisor became angry, threw his headphones towards her, and yelled at her. Id. Ms. Ndugga reported the incident to her division head, who refused to acknowledge that her supervisor had done anything wrong. Id. Her supervisor told her division head and her coworkers that she had raised her voice and behaved aggressively towards him. Id. ¶ 107.
Following that altercation, Ms. Ndugga’s supervisor excluded her from emails and meetings, which denied her information she required to do her job. Id. ¶ 108. Ms. Ndugga reported her supervisor’s behavior to her division head, but her division head did nothing about it. Id.
D. Procedural History
On August 9, 2020, Ms. Syeed commenced this action in New York state court against Bloomberg and several of its employees. Dkt. No. 1-1, Complaint. Ms. Syeed amended her complaint in the state court action on August 11, 2020. Dkt. No. 1-2, Amended Verified Complaint. On September 11, 2020, the defendants removed the case to this Court pursuant to the Class Action Fairness Act. Dkt. No. 1, Notice of Removal.
On October 9, 2020, the defendants moved to dismiss the amended complaint under Rule 12(b)(6) for failure to state a claim. Dkt. No. 20, Mem. in Supp. of Defs.’ Mot. to Dismiss the Am. Verified Compl. Rather than oppose the defendants’ motion to dismiss, on November 16, 2020, Ms. Syeed amended her complaint a second time. SAC. The second amended complaint added Ms. Ndugga as a plaintiff. Id. It also dropped all of the individual defendants, leaving Bloomberg as the sole defendant in the case. Id.
On January 15, 2021, Bloomberg moved to dismiss the second amended complaint or, in the alternative, to strike Plaintiffs’ demand for a jury trial. Dkt. No. 43, Mem. of L. in Supp. of Def.’s Mot. to Dismiss (“Def.’s Br.”) at 1. On February 12, 2021, Plaintiffs filed a brief in opposition. Dkt. No. 45, Mem. in Opp’n to Def.’s Mot. to Dismiss (“Pls.’ Opp’n”). On February 26, 2021, Bloomberg filed a motion in reply. Dkt. No. 47, Reply Mem. of L. (“Def.’s Reply”). On March 4, 2021, Plaintiffs’ surreply was filed. Dkt. Nos. 48–49 (“Surreply”).
III. LEGAL STANDARD
A complaint need only contain “a short and plain statement . . . showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). A defendant may move to dismiss a claim that does not
meet this pleading standard for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). On a motion filed under Rule 12(b)(6), the court accepts as true the facts alleged in
the complaint and draws all reasonable inferences in the plaintiff’s favor.
Burch v. Pioneer Credit
Recovery, Inc.
,
To survive dismissal, a complaint must allege sufficient facts to state a plausible claim.
Twombly
,
On a motion to dismiss, a court must generally “limit itself to the facts stated in the
complaint.”
Field Day, LLC v. Cnty. of Suffolk
,
IV. ANALYSIS
A. The Court Treats the Second Amended Complaint as the Operative Complaint
The Court treats the SAC as the operative complaint in this action, even though Plaintiffs
filed it without complying with Rule 15(a). When a case is removed to federal court, “the federal
court ‘takes the case up where the State court left it off.’”
Granny Goose Foods, Inc. v. Teamsters
, 415
U.S. 423, 436 (1974) (quoting
Duncan v. Gegan
,
Nonetheless, the Court will treat the SAC as the operative complaint. The Court has
discretion to grant requests for leave to amend
nunc pro tunc
when parties file amended pleadings
without complying with Rule 15(a)(2).
See, e.g., Lewittes v. Cohen
, No. 03 Civ. 189 (CSH), 2004 WL
1171261, at *3 (S.D.N.Y. May 26, 2004) (granting leave to amend
nunc pro tunc
“in the interests of
clarity, consistency, and justice”);
Bledsoe v. Saaqin
, No. 15-CV-0181 (JS) (ARL),
Here, a number of factors weigh in favor of treating the SAC as the operative complaint in
this case. First, the parties have already expended substantial time and effort on this motion to
dismiss the SAC, which adds claims that were not present in its former pleadings. In addition,
Defendant has not suggested that the Court would have denied Plaintiffs leave to amend had it been
requested at the appropriate time. Accordingly, the Court will exercise its discretion under Rule
15(a) to treat the SAC as the operative complaint.
See Lewittes
,
B. Ms. Syeed’s Claims [2]
1. Ms. Syeed Did Not Feel the Impact of Defendant’s Discrimination in New
York, so her NYCHRL and NYSHRL Claims are Dismissed
Ms. Syeed does not adequately plead a cause of action under the NYSHRL or the NYCHRL
because Ms. Syeed did not experience the impact of the alleged discrimination in New York. “The
New York Court of Appeals has adopted an “impact” test for nonresident plaintiffs seeking
recovery under the NYCHRL.”
Vangas v. Montefiore Med. Ctr
.,
Here, Ms. Syeed cannot establish that she felt the impact of Defendant’s constructive
discharge or their failure to promote her in New York as required by the NYCHRL and NYSHRL.
To the extent Ms. Syeed makes a constructive discharge claim,
[3]
Ms. Syeed lived and worked in
Washington D.C. at all relevant periods. SAC ¶¶ 66–91. Courts routinely hold that a plaintiff who
lives and works outside of New York, but whose employment is terminated by a New York
employer, does not feel the impact of that termination in New York.
See Vangas
,
Relying on three decisions from this district, Ms. Syeed argues that the alleged discrimination
she experienced by being denied a promotion to a position in New York is sufficient to state a claim
under the NYCHRL and NYSHRL.
See
Opp’n at 7–8 (citing
Anderson v. HotelsAB, LLC
, 2015 WL
5008771, at *3 (S.D.N.Y. 2015);
Chau v. Donovan
,
In
Vangas
, the Second Circuit examined
Hoffman
and reiterated that “[u]nder the NYCHRL
the impact of the employment action must be felt by the plaintiff in NYC.”
New York State appellate courts have also consistently applied the impact test to ensure that
the NYCHRL and NYSHRL are targeted to protect individuals who live or work in New York City
and State.
See, e.g.
,
Pakniat
,
Contrary to this binding case law, the cases upon which Ms. Syeed relies—
Anderson
,
Chau
,
and
Scalerico-Isenberg
—find that being denied a promotion to a position in New York is sufficient to
state a claim under the NYCHRL and NYSHRL even where the plaintiff does not live or work in
New York City or State. As an initial matter,
Anderson
progenerated all three cases; both of the
subsequent decisions relied on its holding without substantial independent analysis
See Chau
, 357 F.
Supp. 3d at 283–84 (relying on
Anderson
to find that a plaintiff stated a claim where “[a]lthough
Chau never worked in New York City . . . the job for which she alleges she was not hired in
violation of the NYCHRL and NYSHRL would have offered her employment within New York
City”);
Scalerio-Isenberg
,
Hoffman bars this Court from expanding the jurisdictional breadth of either statute to encompass behavior such as that alleged in the complaint.
145 N.Y.S.3d . at 31. In Anderson , the court considered failure to hire claims brought by a plaintiff who lived on Shelter Island, and was denied a position working for a New York company. Anderson , 2015 WL 5008771, at *2–3. In determining that the plaintiff had felt the impact of the defendant’s alleged discrimination in New York, the court first rejected the defendant’s argument that the impact of an allegedly discriminatory failure-to-hire occurs only at the time of the act—i.e., at the location “where the plaintiff was interviewed and where [the defendant] allegedly made the discriminatory statements and hiring decision.” Id. at *3. According to the court, such a test would “would narrow the impact analysis of a NYCHRL violation to consideration solely of the physical locations where [the plaintiff] experienced ‘the initial discriminatory act’ and ‘the original experience of the injury.’” [5] Id. Instead, the court determined that it would be better to engage in “a practical substantive consideration of how and where the injury actually affected the plaintiff with respect to her employment.” Id.
Then, ostensibly relying on this “practical substantive consideration” but without citing any case law, the court determined that allegations that defendant’s discrimination had an “impact with respect to [plaintiff’s] prospective employment responsibilities in New York City” were sufficient to state an NYCHRL claim, even where a plaintiff did not live or work in New York City. Id. (emphasis added).
There are numerous issues with
Anderson’s
analysis. First, in support of its “practical
substantive consideration” test,
Anderson
cites
Regan v. Benchmark Co. LLC
, where the Court
considered NYCHRL claims by a plaintiff who worked in New York City but was transferred to an
office in New Jersey. No. 11 CIV. 4511 CM,
But even then, Regan’s analysis is grounded in the impact of discrimination that took place while the plaintiff worked in New York City: the court reasoned that the plaintiff’s transfer to New Jersey was “the culmination of a number of alleged discriminatory acts that took place at Benchmark’s New York City office while Regan worked there .” Id. at *14. As such, it is still the case that the plaintiff in Regan experienced the impact of the discrimination while working in New York City.
More broadly,
Anderson’s
purported application of the impact test undermines the central
tenet proclaimed in
Hoffman
: the impact test is intended to limit the NYCHRL’s and NYSHRL’s
scope to protect only individuals who work “in the city,” and “within the state,” and who feel the
impact of the discrimination “in” the City or State.
Hoffman
,
To be sure, Anderson correctly pointed out that the NYCHRL “was amended in 2005 to broaden its protections because the provisions of the City HRL had been ‘construed too narrowly to ensure protection of the civil rights of all persons covered by the law.’” Anderson , 2015 WL 5008771, at *4. However, while we must broadly construe types of discrimination against which the statute is meant to protect, Hoffman , Vangas , and the aforementioned state court decisions leave no doubt that courts cannot expand the scope of the persons to whom those protections are afforded, namely, individuals who live and work in New York City and State.
Here, Ms. Syeed—who lived at worked at all relevant times in Washington D.C.— pleads only that defendant’s discrimination had an impact with respect to her prospective employment in the city. Because those allegations are insufficient to plead that Defendant’s discrimination had an impact on Plaintiff in New York, Defendant’s motion to dismiss is granted with respect to Ms. Syeed’s claims.
C. Ms. Ndugga’s Title VII Claims
1. Because Ms. Ndugga Failed to Exhaust her Administrative Remedies Prior to
Filing Suit, her Title VII Claims Are Dismissed
Ms. Ndugga’s claims Title VII claims, including her claims for retaliation and disparate
impact pleaded under Title VII,
see
SAC ¶¶ 143–47, 157–163, are dismissed because Ms. Ndugga did
not exhaust her remedies before the EEOC prior to filing her Complaint.
[6]
“As a precondition to
filing a Title VII claim in Federal court, a plaintiff must first pursue available administrative remedies
and file a timely complaint with the EEOC.”
Deravin v. Kerik
,
Under Title VII’s exhaustion requirements, a “right-to-sue letter is a necessary prerequisite to
filing suit.”
Newsome v. Berman
,
If a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved . . . .
42 U.S.C. § 2000e–5(f)(1) (emphasis added). “[A] plaintiff’s failure to obtain a notice-of-right-to-
sue-letter is not a jurisdictional bar, but only a precondition to bringing a Title VII action that can be
waived by the parties or the court,” and accordingly, a failure to obtain a right-to-sue letter can be
excused by the Court on equitable grounds.
Pietras v. Bd. of Fire Comm’rs of Farmingville Fire Dist.,
180
F.3d 468, 474 (2d Cir. 1999). In addition, in certain circumstances, “[t]he EEOC has authorized
itself to issue ‘early’ right-to-sue letters when a complainant requests a right-to-sue letter prior to the
running of 180 days.”
Gibb v. Tapestry, Inc
., No. 18-CV-6888,
Here, Ms. Ndugga filed her EEOC complaint on November 11, 2020, the same day as the
Second Amended Complaint. SAC ¶ 6. Although she eventually received an early right-to-sue letter
on February 2, 2021, there is no question that the Second Amended Complaint was filed prior to the
receipt of this letter. Pl’s Opp’n at 9. Thus, Ms. Ndugga unequivocally failed to exhaust her Title
VII remedies, and her Title VII claims must be dismissed, unless Ms. Ndugga were to show that
waiver should be permitted on equitable grounds.
See Ali v. Bank of New York
,
However, Plaintiffs do not argue that there are equitable grounds to excuse Ms. Ndugga’s
failure to obtain a right-to-sue letter prior to filing suit. Instead, they argue only that the receipt of
an early right-to-sue letter “after a Title VII suit beg[ins] satisfies the exhaustion requirements under
Title VII.” Opp’n at 9–10. But Plaintiffs’ purported support for that proposition is inapposite
because those courts excused the failure
on equitable grounds
. For instance, Plaintiffs point to cases
collected in
Brunson-Bedi v. New York
No. 15-cv-9790,
The parties also squabble over whether Ms. Ndugga’s receipt of an early right-to-sue letter—
one issued prior to the expiration of the 180-day period for the EEOC’s investigation prescribed by
Title VII—sufficiently exhausted her administrative remedies, but those arguments are inapplicable
to the facts at hand. Reply at 7; Surreply at 1–4. While there is some debate regarding whether early
right-to-sue letters satisfy the statute’s exhaustion requirements,
see Gibb v. Tapestry, Inc.
, No. 18-cv-
6888,
[8] In some cases, a court has discussed the impact of early right-to-sue letters, but eventually excused the plaintiff’s failure to obtain a right-to-sue letter on equitable grounds. See e.g. , Commodari v. Long Island Univ. , No. 99-cv-2581, 89 F. Supp. 2d 353, 383 (E.D.N.Y. 2000) (discussing the debate over early right-to-sue letters but finding it was “unnecessary to reach a decision whether the EEOC’s practice of issuing right-to-sue letters before the expiration of the 180–day period contravenes the statute” because “the balance of equities supports excusing the 180–day waiting period”) (emphasis added). right-to-sue letter prior to filing her claims—rather, she received an early right-to-sue letter months after filing her claims before this Court.
There is an easy solution that would have allowed Ms. Ndugga to preserve her Title VII
claims: “where a plaintiff has pleaded non-Title VII claims alongside a Title VII claim, he may file
suit on the non-Title VII claims and then
amend the complaint
to include the Title VII claim after
receiving a right-to-sue letter.”
Sughrim v. New York
,
1. Legal Standard
“Section 8-107(1)(a) of the NYCHRL makes it ‘an unlawful discriminatory practice for an
employer or an employee or agent thereof, because of the [protected characteristic] of any person, to
refuse to hire or employ or to bar or to discharge from employment such person or to discriminate
against such person in compensation or in terms, conditions or privileges of employment.’”
Mihalik
v. Credit Agricole Cheuvreux N. Am., Inc.
,
“The NYCHRL must be construed ‘broadly in favor of discrimination plaintiffs, to the
extent that such a construction is reasonably possible.’”
Nguedi v. Fed. Rsrv. Bank of New York
, No.
1:16-CV-636-GHW,
However, while the NYCHRL confers broad protections, it is “not a ‘general civility code.’”
Mihalik
,
Ms. Ndugga brings claims under the NYCHRL for disparate compensation, denial of promotions, and what she frames as a hostile work environment. For each of those claims, she must show that she was treated “less well” on the basis of her race or gender due to Defendant’s discriminatory intent.
2. Ms. Ndugga’s Allegations that she is Paid Less than Similarly Situated Men State a NYCHRL Claim for Disparate Pay
Ms. Ndugga’s allegations inch across the line to state a claim for disparate pay under the
NYCHRL. “[A] plaintiff can raise an inference of discrimination by demonstrating the disparate
treatment of at least one similarly situated employee outside his protected group and sufficient facts
from which it may reasonably be inferred that ‘the plaintiff’s and comparator’s circumstances . . .
bear a reasonably close resemblance.’”
Sutter v. Dibello
, No. 18-cv-817,
Before turning to whether Ms. Ndugga is similarly situated to the men identified in her
Complaint, the Court notes that Ms. Ndugga sufficiently alleges that she was compensated less than
Bloomberg’s male employees. Ms. Ndugga alleges, among other things, that male producers hired
out of her internship program were paid a starting salary $10,000 more than hers, SAC ¶ 94; that
eighteen male team members received increased compensation for performing similar job duties,
id.
¶ 95; that she was denied raises and compensation compared to her male peers,
id.
¶ 99, and that
Brian Wall, “a producer who began his employment at the same time as Ms. Ndugga for the same
position, with similar education” received increased compensation and a promotion,
id.
¶ 103.
These allegations are sufficient to state that Ms. Ndugga was treated less well with respect to
compensation than male employees.
See Nguedi
,
Then, construing all allegations in Ms. Ndugga’s favor, she sufficiently alleges that the male Bloomberg employees she identified are similarly situated to her. For instance, Ms. Ndugga claims establish the appropriate standard because, drawing all inferences in Ms. Ndugga’s favor, she has adequately supported a minimal inference that the difference of treatment is attributable to discrimination.
that she and the higher-paid male producers were hired out of the same internship program.
Drawing all inferences in Ms. Ndugga’s favor, one could reasonably infer that the members of the
internship class had a similar educational background and work history so as to be similarly situated.
Similarly, construing in Ms. Ndugga’s favor her allegations that she and Brian Wall worked in the
“same position, with similar education,” is it reasonable to infer that the two were similarly situated
in terms of experience and their respective job responsibilities.
See id.
,
It is not the case, as Defendants suggest, that Ms. Ndugga’s claims fail because she has not
pleaded sufficiently detailed facts concerning her comparators relevant experience, length of
employment, job titles, job responsibilities or annual review.
See
Mot. at 17 (citing
Humphries v. City
Univ. of N.Y
, No. 13-cv-2641,
Neither are Ms. Ndugga’s claims defeated by the fact that three of the eighteen men
identified by Ms. Ndugga occupied more senior positions at Bloomberg than she did.
See
Mot. at
17–18. Notably, even if the court declined to consider these three individuals as comparators, Ms.
Ndugga alleges that the men were her “team members” and performed “similar job duties” to her.
SAC ¶ 95. Drawing all inferences in her favor and viewing these allegations in light of the rest of
Ms. Ndugga’s complaint, it is at least reasonable to infer that at least some of these “team members”
had the same level of seniority as Ms. Ndugga. Moreover, the Court must consider Ms. Ndugga’s
allegations she was systematically looked over for promotions and opportunities that were “given to
her male peers,”
id.
at ¶ 96, which suggests that Ms. Ndugga could have occupied a similarly senior
position, but was denied the chance to do so because of Bloomberg’s discrimination. And
regardless, Ms. Ndugga’s identification of these individuals provides contextual support for the
remainder of her claims.
Cf. Bonilla
,
Accordingly, Defendant’s motion to dismiss Ms. Ndugga’s disparate pay claims under the NYCHRL is denied.
3. Ms. Ndugga Does Not Allege a Failure to Promote Because She Wanted to Be Promoted to a Non-Existent Position
Ms. Ndugga fails to allege a claim for failure to promote under the NYCHRL. “[C]ourts
have yet to establish a test for analyzing failure to promote claims under the NYCHRL.”
Campbell v.
Cellco P’ship
,
Here, Ms. Ndugga’s claims for failure to promote fail because she has not identified a
position for which she applied and was denied a promotion. Instead, she claims that she
“discussed . . . her interest in promotion to fill a position specifically focusing on race and identity to
guide the team” and that her supervisors told her that “there was no point in creating that role and
promoting her if she already filled that role by being a Black woman on the team.” SAC ¶ 104.
However, she does not claim that Defendants refused to create new positions for employees who
were not a member of Ms. Ndugga’s protected classes. In essence, Ms. Ndugga claims that
Defendant’s treated her “less well” than others because it refused to create a new position especially
for her—such an allegation is insufficient to state a claim even under the NYCHRL’s liberal
standard. Accordingly, her claims for failure to promote cannot withstand Defendant’s motion to
dismiss.
See Tulino v. City of New York
, No. 15-cv-7106,
Plaintiffs cite to numerous cases to support their argument that “there are exceptions to the
general rule that a plaintiff must identify a specific position that she applied for,” all of which are
inapposite.
See
Opp’n at 16–17. None of these cases involved instances where a defendant would
necessarily need to create a new position to satisfy plaintiff’s request for a promotion, as is the case
here.
See Woods-Early v. Corning Inc
.,
Accordingly, Defendant’s motion to dismiss is granted with respect to Ms. Ndugga’s failure to promote claims under the NYCHRL and NYSHRL.
4. Ms. Ndugga Sufficiently Alleges that Bloomberg’s Conduct Subjected Her to a “Hostile Work Environment” Under the NYCHRL Ms. Ndugga adequately pleads a claim for” hostile work environment” under the NYCHRL.
“In order to succeed on a NYCHRL hostile work environment claim, a plaintiff must show that he
was treated ‘less well than other employees’ on the basis of a protected characteristic.”
Alvarado v.
Nordstrom, Inc
.,
Here, Ms. Ndugga has plausibly alleged that she was “treated less well” due to her gender.
In addition to Ms. Ndugga’s claims that she was paid less for similar work than her male
comparators, Ms. Ndugga also alleges that she was denied resources, such as certain remote-work
technologies, that were provided to her male colleagues, SAC ¶ 100, and that male reporters were
consulted regarding thematic topic areas that they would cover, but Ms. Ndugga was assigned to
cover “scraps,”
id.
¶ 102. Under the NYCHRL’s broad pleading standards, Ms. Ndugga’s
allegations, all of which suggest that she was treated less well than her male colleagues, are sufficient
to state a claim.
See Lenart.
,
E. Ms. Ndugga’s NYSHRL Claims
1. Because Ms. Ndugga’s Claims Accrued Before and After the NYSHRL was
Amended, Two Standards must Be Used to Analyze her Claims.
The NYSHRL “prohibits employers from ‘discriminating against [an] individual in
compensation or in terms, conditions or privileges of employment.’”
Tolbert v. Smith
,
Prior to August 19, 2019, the pleading standards were generally the same for Title VII,
section 1981, and NYSHRL claims.
See Awad v. City of New York.
, No. 13 civ. 5753 (BMC), 2014 WL
1814114, at *5 (E.D.N.Y. May 7, 2014) (“Discrimination claims under § 1981 . . . and [the]
NYSHRL are analyzed under the same framework and pleading standard as Title VII claims.”)
(citing
Ruiz v. Cnty. of Rockland
,
However, the New York legislature amended the NYSHRL on August 19, 2019 to establish
that its provisions should be construed liberally even if “federal civil rights law, including those laws
with provisions worded comparably to the provisions of this article” have been construed narrowly.
Deveaux v. Skechers USA, Inc.
, No. 19-cv-9734 (DLC),
Ms. Ndugga specifically alleges only two discrete acts that occurred prior to October 11, 2019, both of which relate to her claims of disparate pay: first, she alleges that she was paid less than male producers hired out of her internship program, SAC ¶ 94; and second, she alleges that she was denied a bonus in 2018 despite receiving positive performance evaluations. Id. ¶ 98. Thus, under the NYSHRL, the Court must evaluate whether this conduct supports Ms. Ndugga’s claims under the pre-October 11, 2019 standard.
For the remainder of her allegations, Ms. Ndugga either specifies that the conduct took place after October 11, 2019 or the SAC is ambiguous as to the date when the conduct took place. See, e.g. , id. ¶ 102 (allegations regarding discrimination that took place in the “Fall of 2019”); id. ¶ 106 (describing alleged discrimination by a male supervisor without providing any date). Construing these allegations in the light most favorable to Ms. Ndugga, the Court will assume that this conduct took place after October 11, 2019 and analyze this conduct under the amended and more lenient NYSHRL standard.
2. The Alleged Pre-October 11, 2019 Conduct Is Sufficient to State a Claim Under the NYSHRL
Ms. Ndugga states a claim under the NYSHRL with respect to the pre-October 11, 2019
conduct. Under the pre-October 11, 2019 NYSHRL standard, “a plaintiff must plausibly allege that
(1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national
origin was a motivating factor in the employment decision.”
Vega v. Hempstead Union Free Sch. Dist.
,
As to the first factor, the parties do not dispute that Ms. Ndugga is a member of a protected
class or that she was qualified for her position. With respect to the second factor, “[s]ubjecting an
employee to unequal pay can, of course, constitute a materially adverse employment action.”
Humphries v. City Univ. of N.Y.
, No. 13 Civ. 2641 (PAE),
The NYSHRL’s standard for determining whether the plaintiff’s protected characteristic was
a motivating factor in an employment decision appears to be “equivalent to” the standard for
determining whether, under the NYCHRL, a plaintiff was treated less well than similarly situated
others because of their membership in a protected group.
Cardwell
,
3. Allegations Regarding the Remaining, Post-October 2019 Conduct Sufficiently State a Claim under the NYSHRL.
As explained, the amended NYSHRL adopts the same standard as the NYCHRL.
McHenry
v. Fox News Network, LLC
,
F. Disparate Impact
1. Legal Standard
Prior to the NYSHRL’s 2019 amendment, plaintiffs were required to plead NYSHRL
claims for disparate impact under the same pleading standard as applied to such claims under Title
VII, which prohibits “discrimination resulting from employment practices that are facially neutral,
but which have a ‘disparate impact’ because they fall more harshly on a protected group than on
other groups and cannot otherwise be justified.”
Waisome v. Port Auth. of New York & New Jersey
, 948
F.2d 1370, 1374 (2d Cir. 1991). To state a claim for disparate impact under Title VII, plaintiffs must
“(1) identify a specific employment practice or policy; (2) demonstrate that a disparity exists; and (3)
establish a causal relationship between the two.”
Chin v. Port Authority of N.Y. & N.J.
,
As explained previously, because the NYSHRL was amended to more closely mirror the
NYCHRL than Title VII, the Court analyzes under the NYCHRL’s standard Ms. Ndugga’s
NYSHRL claims for conduct occurring after October 11, 2019.
See Wellner
,
2. Plaintiffs Do Not Allege Any Disparities that Were Caused by Defendant’s Employment Practices
Plaintiffs do not sufficiently allege a causal relationship between Defendant’s employment
policies and any alleged disparities.
[15]
“At the prima facie stage” under Title VII, statistical analysis
put forth to support the existence of a disparity “‘must [demonstrate] that the disparity is substantial
or significant, and must be of a kind and degree sufficient to reveal a causal relationship between the
challenged practice and the disparity.’”
Mandala
,
Plaintiffs point to several alleged disparities between men and women at Bloomberg,
including that “[m]ale reporters are frequently hired at salaries that are $20,000 or more above the
salaries of their female peers,” SAC ¶ 35;
see also id.
¶ 38. However, these allegations lack sufficient
detail to support the existence of a disparity. Even at the pleading stage, Plaintiffs must “set forth
enough factual allegations to plausibly support” the existence of a disparity.
Mandala
, 975 F.3d at
209. Merely alleging that men are “frequently” hired at higher salaries than their female peers does
not sufficiently demonstrate that a disparity between the starting salaries of male and female
reporters exists; Plaintiffs do not allege, for instance, that “the majority” of men are provided higher
starting salaries than their female peers or that “on average” men are paid $20,000 more than
women. Without more, the allegations related to male salaries are insufficient to show a disparity, let
alone one caused by Defendant’s employment practices.
Cf. Richardson v. City of New York
, No. 17-
CV-9447 (JPO),
Second, while Plaintiffs allege that only 1,000 of Bloomberg’s 2,700 reporters are women,
SAC ¶ 16, they fail to allege a causal connection between that disparity and the Editorial
Management Committee’s unfettered hiring and promotion discretion. As
Mandala
emphasized,
allegations of a disparity—in that case, statistical allegations—must “plausibly suggest that the
challenged practice
actually
has a disparate impact.”
Mandala
,
Here, Plaintiffs fail to provide relevant comparisons to allege a sufficient causal connection
between the Executive Management Committee’s unfettered discretion over hiring and their
allegation that only 1,000 of Defendant’s 2,700 reporters are women. Under
Mandala
, to allege that
the Executive Management Committee’s hiring discretion was the
cause
of the disparity—rather than,
for instance, an existing gender disparity in qualified journalists—Plaintiffs must provide some
allegation regarding the relative number of men and women eligible to be hired as reporters in the
first place. Plaintiffs do not do so; they do not allege, for instance, that the pool of qualified
applicants for Defendant’s reporter jobs has a 50/50 gender breakdown.
[18]
Without more, their
Plaintiff Syeed about the gender pay disparity them observed”
id.
¶ 38, that a D.C. bureau chief “disclosed that there was
a known gender pay disparity in the News Bureaus,”
id.
, that data collected from Bloomberg’s offices in the United
Kingdom confirmed a pay disparity. and that the head of human resources at Bloomberg’s D.C. office agreed that there
was a “racist and sexist” culture at Bloomberg,
id.
¶ 87, are similarly too conclusory to support their claim.
[17]
Plaintiffs misrepresent
Mandala
’s holding by arguing that
Mandala
requires only that they allege “disparities specific to
[Bloomberg].” Surreuply at 5.
Mandala
instead holds that statistics must “reveal disparities between populations that are
relevant to the claim the plaintiff seeks to prove.”
Mandala
,
[18] Plaintiffs seem to ask the Court to assume that a 50/50 gender split represents the appropriate benchmark from which Bloomberg has deviated as a result of the identified policy. But not only have they provided no data regarding the gender distribution in the relevant pool of qualified applicants for positions as Bloomberg reporters, they have provided no data regarding the gender breakdown in New York State—the geographic area relevant to Plaintiffs’ disparate impact claims under the NYSHRL. The data presented by Plaintiffs reflects Defendant’s global work force. As described above, Defendant’s non-New York employees are not generally protected by the NYSHRL. In the same way, its non- allegations are insufficient to permit the court to infer a causal connection between the Executive Management Committee’s discretion and the disparity between male and female reporters. See id . (holding that plaintiffs failed to state a claim where Plaintiffs had not “offered [any] allegations to suggest that the general population statistic on which they rely ‘might accurately reflect [the] pool of qualified job applicants”).
This is not to suggest that Plaintiffs must put forth “statistical analysis” to state a claim for
disparate impact. As
Mandala
notes, “plaintiffs
typically
rely on statistical evidence to show a disparity
in outcome between groups.”
Mandala
,
U.S. employees would not generally be protected by Title VII.
See Boustany v. Xylem Inc. et al.
,
G. Right to Jury Trial
1. The Court Will Honor Plaintiffs’ Demand for a Jury Trial
The Court will honor Plaintiffs’ demand for a jury trial. In cases which have been removed
from state court to federal court, Federal Rule of Civil Procedure 81(c)(3) describes the process for
demanding a jury trial in three different situations: (1) when “all necessary pleadings have been
served before removal”; (2) “where a party has, before removal, requested a jury in accordance with
state law”; and (3) “state law does not require the parties to expressly claim trial by jury.”
Cascone v.
Ortho Pharm. Corp.
,
At the time of removal, Plaintiffs had filed the First Amended Complaint, which includes the
statement “JURY TRIAL DEMANDED” on its first page. Dkt. No. 1, Ex. 2, at 2. Plaintiffs had
not filed a demand for jury trial in state court, however, because, under New York law, a jury
demand cannot be accepted unless a note of issue has been served, and a note of issue cannot be
served until discovery is complete.
See Breedlove v. Cabou
,
Then, on September 14, 2020, following removal, this Court issued an order stating that “[p]ursuant to Fed. R. Civ. P. 81(c)(3), if any party wishes to demand a jury trial in this matter, the demand must be served and filed no later than September 25, 2020.” Dkt. No. 7. Between September 14 and September 25, 2020, Plaintiffs did not serve or file a jury trial demand. On November 16, 2020, Plaintiffs filed the Second Amended Complaint which also included the statement “JURY TRIAL DEMANDED” in its caption. Dkt. No. 26, at 1.
Here, there can be no dispute that the parties failed to request a jury trial under the
circumstances outlined in Rule 81(c)(3). Nonetheless, the Court will exercise its discretion to excuse
the untimely jury demand. “The Second Circuit in
Higgins
identified three factors which would allow
the district court on remand to allow a ‘late’ request for a jury trial” . . . (1) “whether the case is of a
type ‘traditionally triable by jury’”; (2) “the parties’ assumptions as to whether the case would be
tried to a jury;” and (3) “prejudice to the non-movant.”
Turkenitz v. Metromotion, Inc.,
No.
97CIV.2513(AJP)(JGK),
Here, all three factors weigh in favor of excusing Plaintiff’s untimely jury demand. First,
employment discrimination cases are frequently tried before juries. Second, there can be no
question that Plaintiffs have expressed their desire that this case to be tried to a jury: Plaintiffs
included “JURY TRIAL DEMANDED” in the captions both of the complaint filed in state court,
Dkt. No. 1-1, as well as in the SAC, SAC at p. 1. The Court is reluctant to deprive Plaintiff of the
opportunity to try this case before a jury given that their desire to do so has been evident
throughout—even if it was not presented in the proper procedural manner. Moreover, Defendants
have not relied to their detriment on Plaintiffs’ failure to properly file their demand, given that this
case has not yet proceeded past initial motion practice. As follows, Defendants have not
demonstrated that they will suffer prejudice if this case is tried to a jury.
See Turkenitz
, 1997 WL
773713, at *6–7 (excusing untimely jury demand where defendants made showing of prejudice);
Breedlove
,
V. LEAVE TO AMEND
Although Plaintiffs have already amended their complaint twice, Dkt. No. 26, the Court
grants Plaintiffs leave to replead the dismissed claims with the exceptions noted below.
See Cortec
Indus., Inc. v. Sum Holding L.P
.,
However, any attempt by Ms. Syeed to replead her claims under the NYSHRL and NYCHRL would necessarily be futile because she did not live or work in New York. Therefore, Plaintiffs may not amend Ms. Syeed’s claims. Cf. Advanced Magnetics, Inc. v. Bayfront Partners, Inc ., 106 F.3d 11, 18 (2d Cir. 1997) (noting that leave to amend need not be granted where the proposed amendment would be futile”).
VI. CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss the Second Amended Complaint is granted in part and denied in part. Specifically, Defendant’s motion to dismiss Ms. Syeed’s claims under the NYCHRL and NYSHRL is GRANTED. Defendant’s motion to dismiss Ms. Ndugga’s Title VII claims is GRANTED. Defendant’s motion to dismiss Ms. Ndugga’s disparate pay and hostile work environment claims under the NYCHRL and NYSHRL is DENIED. Defendant’s motion to dismiss Ms. Ndugga’s disparate impact claims under the NYSHRL is GRANTED. Defendant’s motion to dismiss Ms. Ndugga’s failure to promote claims under the NYCHRL and NYSHRL is GRANTED.
The Clerk of Court is directed to terminate the motion pending at Dkt. No. 42. SO ORDERED.
Dated: October 25, 2021 _____________________________________ New York, New York GREGORY H. WOODS
United States District Judge
Notes
[1] The facts are drawn from Plaintiffs’ second amended complaint (“SAC”), Dkt. No. 26, and are accepted as true for the
purposes of this motion to dismiss.
See, e.g., Chambers v. Time Warner, Inc.
,
[2] Ms. Syeed concedes that she asserts claims only under the NYCHRL and the NYSHRL. Opp’n at 17.
[3] In the Opposition, Ms. Syeed expressly states that she “agrees that her claims of pay discrimination and hostile work environment did not have a New York impact in the way that the promotion discrimination and constructive discharge she experience had a New York impact.” Opp’n at 8 n.3 (emphasis added). However, Ms. Syeed entirely fails to respond to Bloomberg’s arguments regarding her constructive discharge claim; instead, Syeed’s allegations focus only on Bloomberg’s arguments regarding failure to promote. See Opp’n at 5–8, see also id . at 6 (noting that Ms. Syeed “precisely” alleges that “she sought and was denied numerous positions with BLP in New York” without mentioning constructive discharge). Thus, it is unclear whether Ms. Syeed intends to argue that her constructive discharge claim falls under the NYCHRL or NYSHRL. However, to the extent she does, that claim fails for the reasons explained herein.
[4] Pakniat also emphasized the enduring nature of the impact test in light of the COVID-19 pandemic and corresponding proliferation of remote work, explaining In arguing that that the statutes should reach discriminatory conduct that occurs in New York even if the impact is felt by an out of state worker, plaintiff points to the increase in remote working arrangements since the Court of Appeals decided Hoffman . The Covid 19 pandemic has only expanded the diaspora of remote workers, many of them laboring in other states for New York firms. Certainly, the electronic tools that enable this new expanded workplace can be conduits for discriminatory conduct. Additionally, plaintiff is correct that the State and City Human Rights Laws are meant to deter discriminatory behavior by New York employers, as well as to compensate the employees impacted by that behavior. While these arguments have force, the clear directive of
[5] Exactly the position taken by the First Department in
Benham
.
Benham
,
[6] “The failure to exhaust administrative remedies is an affirmative defense, for which defendant bears the burden of
proof.”
Jordan v. Forfeiture Support Assocs
.,
[7] In addition, Plaintiffs cite,
Kounitz v. Slaatten
,
[9] Courts have come to disparate conclusions regarding the level of detail necessary to sufficiently show that a comparator
is similarly situated to a plaintiff: while it is undisputed that, at summary judgment, “[a] plaintiff relying on disparate
treatment evidence must show she was similarly situated in all material respects to the individuals with whom she seeks
to compare herself . . . whether a plaintiff must carry a similar burden at the motion to dismiss stage is hardly settled.”
Ray v. New York State Ins. Fund
, No. 16-cv-2895,
[10] Ms. Ndugga’s other allegations further support an inference of discrimination.
See Vega v. Hempstead Union Free Sch.
Dist
.,
[11] Ms. Ndugga also suggests, without expressly alleging, that discrimination played a role in Mr. Wall’s receiving a promotion even after she received a positive performance evaluation and was recommended for a raise. SAC ¶ 103. But this conclusory allegations is insufficient to state a claim. See Cardwell v. Davis Polk & Wardwell LLP , 2020 WL 6274826, at *23 (S.D.N.Y. Oct. 24, 2020) (denying claims where plaintiff’s “conclusory” allegations contained “no facts to support” the assertion that employment actions occurred “because of” plaintiff’s membership in a protected class).
[12] In framing Ms. Ndugga’s “hostile work environment” claims under the NYCHRL, the parties parrot language from
the analysis of hostile work environment claims under Title VII.
See e.g.
, Reply at 17 (citing
Cardwell
,
[13] Because Ms. Ndugga has sufficiently alleged gender as a basis for her hostile work environment claim, the Court need
not consider the alternatives bases for her claim, i.e., her race and identify as a black woman.
Cf. Rodriguez v. City of
Danbury
, No. 15-cv-1269,
[14] Specifically, the statute was amended “to eliminate the requirement that harassing or discriminatory conduct be
“severe or pervasive” for it to be actionable and to adopt instead a more protective standard that prohibits conduct that
results in “inferior terms, conditions or privileges of employment.”
Maiurano v. Cantor Fitzgerald Sec
., No. 19 CIV. 10042
(KPF),
[15] As to the first element required to show a disparate impact claim, Bloomberg’s alleged employment practices, Plaintiffs allege that Defendant’s Editorial Management Committee holds the exclusive authority to make hiring or promotion decisions, as well as decisions related to employee pay and also that that the Editorial Management Committee often makes such salary decisions based on a new hire’s “prior pay.” SAC ¶¶ 14, 28, 33–36, 40, 42. Assuming without deciding that those allegations are sufficient to identify a specific employment practice, Plaintiffs’ allegations nonetheless fail for the reasons stated herein.
[16] Plaintiffs’ allegations that “numerous female reporters complained to Plaintiff Syeed that Bloomberg’s male editors undermined them and bypassed them for promotion,” SAC ¶ 31, that “many female colleagues spoke openly with