NAFEESA SYEED v. BLOOMBERG L.P.
No. 22-1251
United States Court of Appeals For the Second Circuit
Decided: January 23, 2023
August Term 2022. Argued: January 9, 2023. Appeal from the United States District Court for the Southern District of New York No. 20-cv-7464, Gregory H. Woods, Judge.
Before: JACOBS, SULLIVAN, and PEREZ, Circuit Judges.
This case presents an unresolved question of New York law: whether a nonresident plaintiff not yet employed in New York City or State satisfies the impact requirement of the New York City Human Rights Law (the “NYCHRL“) or the New York State Human Rights Law (the “NYSHRL“) if the plaintiff pleads and later proves that an employer dеprived the plaintiff of a New York City- or State-based job opportunity on discriminatory grounds. Because we conclude that this issue implicates a host of important state interests, we reserve decision and certify the question to the New York Court of Appeals.
DECISION RESERVED AND QUESTION CERTIFIED.
NIALL MACGIOLLABHUI, Law Office of Niall MacGiollabhui, New York, NY, for Plaintiff-Appellant Nafeesa Syeed.
ELISE M. BLOOM, Proskauer Rose LLP, New York, NY (Allison L. Martin, Proskauer Rose LLP, New York, NY, Mark W. Batten, Proskauer Rose LLP, Boston, MA, on the brief), for Defendant-Appellee Bloomberg L.P.*
This case presents an unresolved question of New York law: Whether a nonresident plaintiff not yet employed in New York City or State satisfies the impact requirement of the New York City Human Rights Law (the “NYCHRL“) or the New York State Human Rights Law (the “NYSHRL“) if the plaintiff pleads and later proves that an employer deрrived the plaintiff of a New York City- or State-based job opportunity on discriminatory grounds. Because we conclude that this issue implicates a host of important state interests, we reserve decision and certify the question to the New York Court of Appeals.
I. Background
Bloomberg L.P. (“Bloomberg“) is a privately held company that operates Bloomberg Media, a news organization that employs аpproximately 2,700 reporters, producers, and editors across over 120 news bureaus worldwide.1 Bloomberg Media‘s employment decisions are controlled by its Editorial Management Committee, which operates from Bloomberg‘s New York City headquarters.
In October 2014, Nafeesa Syeed, a South Asian-American woman, began working for Bloomberg‘s Dubai news bureau as a Persian Gulf economy and govеrnment reporter. A year later, Syeed informed Bloomberg that she wished to transfer to its New York or Washington, D.C. bureaus because of her husband‘s job location. After applying for multiple positions, Syeed ultimately obtained a position in the Washington, D.C. bureau reporting on cybersecurity. By mid-2018, Syeed realized that there was no career path for her at that bureau, and she applied for severаl reporting jobs with Bloomberg in New York City. In particular, Syeed repeatedly told her team leader that she was interested in filling a U.N.-reporter position. That vacancy, however, was ultimately filled by a man.
When Syeed subsequently asked why she had not been considered for the U.N. position, her team leader responded that Syeed had never said that she wanted to cover foreign policy; he also advised her that she had to advocate for herself if she wanted to advance at Bloomberg. Another editor told Syeed that one of the reasons she was not considered for the U.N. position was that the position had not been designated as a “diversity slot.” J. App‘x at 48. In June 2018, Syeed met with the Head of Human Resources for the Washington, D.C. bureau and complained that Bloomberg had a raсist and sexist culture. The Head of Human Resources instructed Syeed to report her concerns to a senior executive editor for diversity, talent, standards,
On behalf of herself and other similarly situatеd individuals, Syeed - now a resident of California - filed a class-action lawsuit in New York state court against Bloomberg and several of its employees on August 9, 2020; shortly thereafter, she amended her complaint. Prior to any further proceedings in state court, the Defendants removed the case to federal court pursuant to the Class Action Fairness Act and moved to dismiss the amended complaint under
Rather than oppose the motion, Syeed again amended her complaint, dropping all of the individual employee defendants. In her second amended complaint, Syeed alleged class claims under NYSHRL for disparate treatment and disparate impact on the basis of sex, as well as individual claims for constructive discharge and, under NYSHRL and NYCHRL, for discrimination on the basis of racе and sex in denying her promotions, setting her compensation, and creating a hostile work environment.
Thereafter, Bloomberg again moved to dismiss under
State. Id. The district court entered a final judgment pursuant to
II. Standard of Review
We review de novo a district court‘s grant of a motion to dismiss for failure to state a claim under
III. Discussion
Syeed‘s appeal raises a single legal question: Whether a nonresident plaintiff not yet employed in New York City or State satisfies the NYCHRL or NYSHRL impact requirement if the plaintiff pleads and later proves that an employer deprived the plaintiff of a New York City- or State-based job opportunity on disсriminatory grounds. We find that this core question is an unsettled issue of New York law that merits certification to the New York Court of Appeals.
“Although the parties did not request certification, we are empowered to seek certification nostra sponte.” Kuhne v. Cohen & Slamowitz, LLP, 579 F.3d 189, 198 (2d Cir. 2009). “We may certify a question to the New York Court of Appeals where that court has not spoken clearly on an issue and we are unable to
As to the first certification factor, the New York Court of Appeals has not decided the specific question raised in this case. The closest case is Hoffman v. Parade Publications, where the New York Court of Appeals held that, because NYCHRL and NYSHRL were intended to protect persons who inhabit or are persons within New York City and State, respectively, “nonresidents of the city and state must plead and prove that the alleged discriminatory conduct had an
impact within those respective boundaries.” 15 N.Y.3d 285, 289, 291 (2010).3 Applying that test, the Hoffman court found that the plaintiff - who resided and worked in Georgia, but who attended quarterly meetings in, and was managed and fired from, New York City - was not himself sufficiently impacted within New York City or State to be able to bring a claim for discriminatory termination. Id. at 288, 292. Hoffman, however, was silent as tо whether, in discriminatory failure-to-hire or failure-to-promote cases, a nonresident plaintiff - who did not work in New York City or State, but who alleged that but for an employer‘s unlawful conduct, he or she would have worked in New York City or State - would also be unable to assert sufficient personal impact in New York City or State.
Nor does Hoffman provide clear guidance from which we can predict how the New York Court of Appeals would answer our question. Certain portions of Hoffman seem to imply that nonresidents can satisfy the NYCHRL or NYSHRL impact requirement only if they currently work in New York City or State. See, e.g., id. at 291 (“[T]he impact requirement [for nonresidents] . . . confines the protections of the NYCHRL to those who are meant to be protected - those who work in the city.” (emphasis added)); id. (“Application of the ‘impact’ rеquirement to [NYSHRL] claims achieves the same ends as is the case with its City counterpart, because it permits those who work in the state to invoke its protections.” (emphasis added)). But given
that the alleged discriminаtory conduct had any impact in either of those locations.” (emphasis added)).4
Other decisions by New York courts are equally ambiguous on this issue. For starters, the parties have not cited, and we are not aware of, any lower state-court case where a nonresident plaintiff who was not yet employed in New York City or State raised a failure-to-hire or failure-to-promote claim. And to the extent that lower state-court cases applying the impact requirement to the more typical hostile-work-environment or termination fact patterns are relevant, the cases cut both ways. For example, some cases have interpreted the impact requirement to “turn[] primarily on [the plaintiff‘s] physical location at the time of the alleged discriminatory aсts,” Benham v. eCommission Sols., LLC, 989 N.Y.S.2d 20, 21 (1st Dep‘t 2014); see also Wolf v. Imus, 96 N.Y.S.3d 54, 55 (1st Dep‘t 2019) (same), while others seem to have more broadly posited that a plaintiff can allege impact if he or she can show that the discriminatory acts affected “the terms, conditions[,] or extent of [his or her] employment . . . within the boundaries of
New York,” Hardwick v. Auriemma, 983 N.Y.S.2d 509, 512 (1st Dep‘t 2014); see also Jarusauskaite v. Almod Diamonds, Ltd., 152 N.Y.S.3d 579, 580 (1st Dep‘t 2021) (same).
Federal courts have been no more conclusive. Although this is a mаtter of first impression in this Circuit,5 district courts
in either location. See, e.g., id. at 331; see also id. at 331-32 (also citing favorable language from Pakniat, Hardwick, Benham, and Wolf).
But the three other district courts that have considered the pertinent question have reached the opposite conclusion. For example, in Anderson v. HotelsAB, LLC, the plaintiff alleged that, due to her relationship with her disabled son, she was not hired for a pоsition that would have required her to work about half the year in New York City. No. 15-cv-712 (LTS), 2015 WL 5008771, at *1-2 (S.D.N.Y. Aug. 24, 2015). Invoking language similar to Hardwick and Jarusauskaite, the district court noted that “the [NYCHRL] impact requirement is satisfied if the plaintiff alleges that the conduct has affected the terms and conditions of plaintiff‘s employment within the city,” and thus refused to dismiss the case because the allegedly discriminatory refusal to hire “had an impact with respect to [the plaintiff‘s] prospective employment responsibilities in New York City.” Id. at *2-4; see also Chau v. Donovan, 357 F. Supp. 3d 276, 283-84 (S.D.N.Y. 2019) (finding that a California plaintiff alleging that she was not hired for a New York City position due to her refusal to submit to sexual demands had adequately pleaded the NYCHRL and NYSHRL impact requirement); Scalercio-Isenberg v. Morgan Stanley Servs. Grp. Inc., No. 19-cv-6034 (JPO), 2019 WL 6916099, at *1, *4 (S.D.N.Y. Dec. 19,
2019) (finding that a New Jersey plaintiff alleging that she was not hired for a New York City position duе to her age, gender, and disability had adequately pleaded the NYCHRL and NYSHRL impact requirement).
In sum, given the absence of any state-court decisions directly on point, as well as the absence of clear guidance from any state-court decisions from which we can predict how the New York Court of Appeals would answer our question, we conclude that certification of the questiоn is preferable to resolving it ourselves. See CFTC v. Walsh, 618 F.3d 218, 231 (2d Cir. 2010) (observing that certification is appropriate where an issue has not been litigated often enough in New York courts to give rise to “sufficient precedents. . . to make a determination concerning [its] proper outcome” (internal quotation marks omitted)).
As to the second certification factor, resolving this issue involves making value judgments аnd weighing competing policy interests, which the New York Court of Appeals is better positioned to do. See Ortiz, 961 F.3d at 159. On the one hand, a ruling for Syeed would allow NYCHRL and NYSHRL suits against prospective employers who hire for jobs in New York City or State by plaintiffs who have no past or present geographical connections. See Syeed, 568 F. Supp. 3d at 333 (”Anderson‘s misapplication of the impact test... expands the class of
nоnresident plaintiffs protected by the NYCHRL [and NYSHRL] to include individuals who do not work in the city or state, but who merely speculate that they might have
Appeals. See Brooklyn Ctr. for Psychotherapy, Inc. v. Phila. Indemnity Ins. Co., 955 F.3d 305, 314 (2d Cir. 2020).
As to the third and final certification factor, the answer to the certified issue will no doubt control the outcome of the case befоre us. If the New York Court of Appeals determines that a nonresident plaintiff not yet employed in New York City or State may nevertheless satisfy the NYCHRL or NYSHRL impact requirement by pleading and later proving that an employer deprived the plaintiff of a New York City- or State-based job opportunity on discriminatory grounds, the district court‘s
IV. Conclusion
For the reasons stated above, we RESERVE decision and CERTIFY the following question to the New York Court of Appeals:
Whethеr a nonresident plaintiff not yet employed in New York City or State satisfies the impact requirement of the New York City Human Rights Law or the New York State Human Rights Law if the plaintiff pleads and later proves that an employer deprived the plaintiff of a
New York City- or State-based job opportunity on discriminatory grounds.
Of course, the New York Court of Appeals is not limited to the question stated. Rather, the New York Court of Appeals may modify the certified question as it sees fit and may direct the parties to address other issues that it deems relevant to the circumstances presented in this appeal.
It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of the New York Court of Appeals a certificate,
Certificate
The foregoing is hereby certified to the New York Court of Appeals pursuant to Second Circuit Local Rule 27.2 and New York Codes, Rules, and Regulations Title 22, § 500.27(a), as ordered by the United States Court of Appeals for the Second Circuit.