Grant et al v. The New York Times Company et al
MEMORANDUM AND ORDER. The following claims for relief against the defendants are dismissed: plaintiffs' individual gender-based Equal Pay Act claims from the first cause of action; plaintiffs' individual gender-based Equal Pay Law claims fr om the second cause of action; plaintiffs' individual gender discrimination claims under the New York State Human Rights Law from the fifth cause of action; plaintiffs' individual gender discrimination claims under the New York City Human R ights Law from the seventh cause of action; plaintiffs' individual claims of aiding and abetting gender discrimination under the New York State Human Rights Law from the eleventh cause of action; plaintiffs' individual claims of aiding and abetting gender discrimination under the New York City Human Rights Law from the twelfth cause of action; and plaintiff's individual gender discrimination claims under Title VII from the thirteenth cause of action. The defendants' motion to dismiss is GRANTED. The defendants' motion to strike certain class action allegations is DENIED without prejudice to the defendants' ability to oppose certification on those same grounds. The Clerk is directed to terminate the motion (Dkt. 61). So ordered. Granting in part and denying in part 61 Motion to Dismiss. (Signed by Judge P. Kevin Castel on 9/14/2017) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ERNESTINE GRANT and MARJORIE
WALKER, on behalf of themselves individually
and on behalf of all similarly situated persons,
THE NEW YORK TIMES COMPANY, MARK
THOMPSON, in his individual and professional
capacities, and MEREDITH LEVIEN, in her
individual and professional capacities,
Plaintiffs Ernestine Grant and Marjorie Walker, on behalf of themselves and all
similarly situated persons, bring this action for employment discrimination and equal pay
violations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”), the Equal Pay Act of 1963, 29 U.S.C. § 206 et seq. (“EPA”), the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”), the Civil Rights Act of 1871, 42 U.S.C. § 1981
(“Section 1981”), the New York Equal Pay Law, N.Y. LAB. L. § 194 (“EPL”), the New York
City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”), and the New York
State Human Rights Law, N.Y. EXEC. L. § 290 et seq. (“NYSHRL”).
Ms. Grant and Ms. Walker allege that defendants The New York Times Company
(“The Times”), Mark Thompson and Meredith Levien, both executives at The Times,
discriminated against them because of their race, age, gender, and for Ms. Walker, her disability.
Ms. Grant and Ms. Walker are currently employed by The Times.
Defendants have moved to dismiss the Title VII gender discrimination claims, the
Equal Pay Act claims and the corresponding state and city law claims in the Second Amended
Complaint (“SAC”). Defendants do not seek dismissal of the race, age or disability claims nor
do they seek dismissal of plaintiffs’ retaliation claims. Defendants also move to strike plaintiffs’
class claims from the SAC under Rules 23(b)(1) and 23(b)(2), Fed. R. Civ. P. For reasons that
will be developed, defendants’ motion to dismiss will be granted and defendants’ motion to
strike certain class action allegations will be denied.
Plaintiffs Ernestine Grant, aged 62, and Marjorie Walker, aged 61, are black
female employees of The Times. (SAC ¶¶ 48-49.) Ms. Grant and Ms. Walker are Account
Managers (“AMs”) in The Times’ Advertising Department. (SAC ¶¶ 1, 147, 172.) AMs are
responsible for selling print and digital advertisements, and receive compensation based in part
on how much advertising they sell. (SAC ¶ 192.)
Plaintiff Ernestine Grant began her employment at The Times as an AM and has
received positive performance reviews, “substantial bonuses,” and maintains solid relationships
with her clients. (SAC ¶¶ 147-157.) The SAC does not allege how long Ms. Grant has been
working at The Times.
Plaintiffs allege that while Ms. Grant sought promotion commensurate with her
experience, she was denied those opportunities, which were instead given to “younger, white
individuals instead.” (SAC ¶ 161.) Plaintiffs point to two younger white male AMs who were
allocated higher revenue accounts than Ms. Grant, despite Ms. Grant’s superior experience and
qualifications. (SAC ¶¶ 163-164.) Additionally, plaintiffs provide the example of Maria
Eliason, a younger white female AM who had been allocated higher revenue accounts than Ms.
Grant and was selected for promotion to Advertising Director in 2016. (SAC ¶ 165.) Ms. Grant
was offered a buyout, but did not accept it. (SAC ¶¶ 169-170.)
Plaintiff Marjorie Walker began her career with The Times in 2008 as a Telesales
Representative in Live Entertainment, and in 2010 was promoted to AM on the Fashion &
Jewelry team. (SAC ¶¶ 171-172.) She received a laudatory performance review in 2012. (SAC
¶¶ 173-179.) In 2013, her supervisor, Amanda Smith, who had been hired by defendant
Meredith Levein, told a client in Ms. Walker’s presence, “[o]h, Marjorie’s a tough girl.” (SAC
¶¶ 180-183.) Soon thereafter, Ms. Smith filed an internal arbitration against Ms. Walker,
accusing her of insubordination and poor work product. (SAC ¶ 184.) Ms. Walker told Ms.
Smith that she found the “tough girl” comment to be offensive and racially charged, after which
Ms. Smith attempted to withdraw the arbitration against Ms. Walker. (SAC ¶¶ 184-186.)
Ultimately the arbitration was dismissed and Ms. Walker proposed that she be transferred to
another advertising team. (SAC ¶¶ 187-89). She sought a transfer from the Fashion & Jewelry
team and was assigned to the “Help Wanted” advertising team, which she was told was the only
position available. (SAC ¶¶ 189-190.) Plaintiff alleges that the reassignment was a demotion,
and had a direct, detrimental impact on Ms. Walker’s compensation and career prospects. (SAC
In or around September 2011, Ms. Walker was diagnosed with multiple myeloma,
a form of cancer. (SAC ¶ 200.) Ms. Walker requires accommodations in order to treat her
disability, including time off for medical appointments and recovery. (SAC ¶ 203.) Plaintiff
alleges that The Times’ management and staff are aware of Ms. Walker’s medical condition.
(SAC ¶ 202.)
In December 2015, Ms. Walker was given a negative performance review, with
an overall rating of “[n]eeds considerable improvement.” (SAC ¶¶ 212-13.) In that review, Ms.
Walker’s supervisor, Ruth Flaig, gave Ms. Walker “scathing” critiques of her work. (SAC ¶
214.) Ms. Walker was subsequently offered a buyout which was available to employees in a
number of divisions at The Times including the Advertising department. (SAC ¶¶ 212, 215.)
After Ms. Walker did not respond to the buyout offer, she, along with another older black AM,
attended a meeting in which they were told that at the end of an ongoing restructuring, “only one
of the two of them” would have a position. (SAC ¶ 216-217.) Ms. Walker and the other AM
understood that conversation to be a directive for at least one of them to take the buyout. (SAC ¶
219.) Ms. Walker did not accept the buyout, does not allege that any adverse consequences
befell her as a result of refusing the buyout, and continues to work at The Times.
Ms. Walker alleges that she was repeatedly passed over for promotion to
Advertising Director, and that while she was denied such an opportunity, promotions were
routinely given to “younger, white individuals instead.” (SAC ¶ 206.) Ms. Walker alleges that
“younger white individuals” at the same level as Ms. Walker were paid more than she was.
(SAC ¶ 207.)
Specifically, Ms. Walker alleges that a younger white male employee was
assigned higher revenue accounts than she was, and was subsequently promoted to Account
Director. (SAC ¶ 208.) Ms. Walker alleges that a young white female employee was also
allocated higher revenue accounts than Ms. Walker, and that her compensation is “substantially”
higher than Ms. Walker’s. (SAC ¶ 209.) Finally, Ms. Walker alleges that three other white
employees (two male, one female), earn “far more” than Ms. Walker due to “unequal
distribution” of higher revenue accounts to those individuals. (SAC ¶ 210.)
Plaintiffs allege that since defendant Mark Thompson was appointed as Chief
Executive Officer (“CEO”) of The Times in 2012, he has permitted and encouraged a “culture of
discrimination” at all levels of The Times, including its Advertising Department. (SAC ¶¶ 2-3.)
Mr. Thompson previously served as the Director-General of the British Broadcasting
Corporation (“BBC”) and plaintiffs allege that he “endorsed and perpetuated a system of gender
discrimination while at the helm of the BBC.” (SAC ¶¶ 4, 13.) Plaintiffs also provide examples
of allegedly discriminatory practices that were committed during Mr. Thompson’s tenure at the
BBC. (SAC ¶¶ 4-9, 13-16.)
Shortly after Mr. Thompson began working at The Times, his first major
appointment of a business-side executive was defendant Meredith Levien, who eventually
assumed the role of Chief Revenue Officer. (SAC ¶ 19.) Plaintiffs allege that Ms. Levien sought
to foster a workforce filled with “fresh faces,” meaning younger, white employees without
families. (SAC ¶ 20.)
Plaintiffs allege that since Ms. Levien’s appointment, “nearly all” of the nonwhite
Advertising Directors have been pushed out, and that Ms. Levien’s alteration of The Times’
standard pay scale system worked to create discriminatory wage gaps in favor of younger and
white employees. (SAC ¶¶ 25-31.) Plaintiffs point to the ouster of Executive Editor Jill
Abramson in 2014, and her replacement with a man as an illustrative example of the gender
inequality endemic to The Times. (SAC ¶¶ 11-12.)
To support certain of their allegations, plaintiffs rely on allegations in other
lawsuits, one alleging gender discrimination and the other alleging age and race discrimination.
(SAC ¶¶ 23-24.) They also cite a report by the Newspaper Guild of New York (“the Guild
Report”) that allegedly found that black and Hispanic employees at The Times earn only 89%
and 84%, respectively, of what white employees earn (SAC ¶¶ 33-34) and that women at The
Times receive relatively lower wages as compared to men. (SAC ¶ 35.) They also rely on a
Women’s Media Center Study (“the Study”), which purportedly showed that The Times had the
largest gender pay gap of any of the top ten most widely circulated newspapers. (SAC ¶ 12.)
Plaintiffs also allege that only four out of the fourteen members of the board of Directors are
women, and that Ms. Levien is the sole female member of the ten person Executive Committee
and The Times. (SAC ¶ 9.)
Plaintiffs allege that the Advertising Division, the division in which they are
employed, receives its mandate and general direction from Mr. Thompson. (SAC ¶¶ 131-141.)
Mr. Thompson attended annual meetings in the Advertising Division in which he put forth his
vision and ideas for The Times’ advertising initiatives. (Id.) Ms. Levien allegedly carries out
Mr. Thompson’s vision for the Advertising Division, which, according to plaintiffs, is
discriminatory and results in disparate treatment of women, minorities, and older employees.
(SAC ¶¶ 136-142.) For instance, plaintiffs allege that Ms. Levien, in carrying out Mr.
Thompson’s goals, began, in 2013, requiring that employees in the Advertising Division obtain
an Interactive Advertising Bureau (“IAB”) digital media sales certification by taking an exam.
(SAC ¶ 142.) While this requirement eventually became a “recommendation,” plaintiffs allege
that older employees were effectively required to take the exam, while “younger, white”
employees generally did not take the exam and suffered no negative repercussions for failing to
do so. (SAC ¶¶ 144-146.)
Another episode allegedly illustrating the discriminatory practices at The Times
was that Brendan Monaghan, then Senior Vice President of Advertising and Publisher of “T: The
New York Times Style Magazine,” limited all but one of his Account Manager hires to white
men under the age of 30, whom he allegedly referred to as his “handsome men.” (SAC ¶¶ 9294.)
Advertising staff allegedly raised issues of unfair treatment for women, people of
color, and older employees at Advertising Diversity Meetings with Michael Golden, the Vice
Chairman of The Times, and Matthew Hardon, a Vice President of Human Resources at The
Times. (SAC ¶ 99.) Ms. Grant and Ms. Walker allegedly complained at those meetings about
the assignment of low-revenue accounts and positions based on race, gender, and age. (SAC ¶
100.) Other employees allegedly complained that older employees of color were treated less
favorably than younger, white employees. (SAC ¶¶ 101-105.) Vice Chairman Golden allegedly
ignored these complaints and stopped scheduling Advertising Diversity meetings. (SAC ¶¶ 106107).
Motion to Dismiss.
To survive a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “‘Labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do,’” rather, a plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (quoting Twombly, 550 U.S. at 555). In considering a Rule 12(b)(6) motion to dismiss, all
non-conclusory factual allegations are accepted as true, see id. at 678-79, and all reasonable
inferences are drawn in favor of the plaintiffs. See In re Elevator Antitrust Litig., 502 F.3d 47,
50 (2d Cir. 2007) (per curiam).
In employment discrimination cases, the Iqbal plausibility standard applies in
conjunction with the pleading standards set forth in Swierkiewicz v. Sorema, N.A., 534 U.S. 506
(2002). See Gillman v. Inner City Broad. Corp., No. 08 cv 8909 (LAP), 2009 WL 3003244, at
*3 (S.D.N.Y. Sept. 18, 2009) (“The Iqbal plausibility standard applies in conjunction with
employment discrimination pleading standards . . . Iqbal was not meant to displace
Swierkiewicz’s teachings about pleading standards for employment discrimination claims
because in Twombly, which heavily informed Iqbal, the Supreme Court explicitly affirmed the
vitality of Swierkiewicz.”); Iqbal, 556 U.S. at 684 (“Our decision in Twombly expounded the
pleading standard for all civil actions, and it applies to antitrust and discrimination suits alike.”
(internal quotation marks and citations omitted)).
At the pleading stage, Swierkiewicz teaches that a plaintiff is not required to come
forth with allegations sufficient to make a prima facie case of employment discrimination or to
satisfy the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Swierkiewicz, 534 U.S. at 510-11; see also Patane v. Clark, 508 F.3d 106, 113 (2d
Cir. 2007) (per curiam). Rather, “a complaint must include . . . a short and plaint statement of
the claim . . . [that] give[s] the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal quotation marks omitted).
“The facts required by Iqbal to be alleged in the complaint need not give plausible support to the
ultimate question of whether the adverse employment action was attributable to discrimination.
They need only give plausible support to a minimal inference of discriminatory motivation.”
Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). Accordingly, to overcome a
Rule 12(b)(6) motion to dismiss in an employment discrimination case, a complaint must give
fair notice of the basis of the plaintiff’s claim and the claims must be facially plausible.
a. Title VII and Equal Pay Act.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating
against an individual on the basis of “race, color, religion, sex, or national origin,” but it does not
encompass claims based on general animus or hostility. 42 U.S.C. § 2000e-2(a). At the pleading
stage, a complaint must allege the essential elements of an employment discrimination claim –
that plaintiff suffered discrimination on the basis of protected status that resulted in an “adverse
employment action.” Patane, 508 F.3d at 112. To qualify as “adverse,” an action must “cause a
‘materially adverse change in the terms and conditions of employment,’ and not just ‘mere
inconvenience.’” Id. (quoting Fairbrother v. Morrison, 412 F.3d 39, 56 (2d Cir. 2005)).
A plaintiff is required to set forth factual circumstances from which
discriminatory motivation for adverse employment action can be inferred. Id. An inference of
discrimination can arise from circumstances such as “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; or the more favorable treatment of employees not in the protected
group; or the sequence of events leading to the plaintiff’s discharge” or “when an employer
replaces a terminated or demoted employee with an individual outside the employee’s protected
class.” Littlejohn, 795 F.3d at 312-13 (internal quotation marks omitted).
To state a valid claim under the Equal Pay Act, 29 U.S.C. § 206(d), a plaintiff
must allege that (1) the employer pays different wages to employees of the opposite sex; (2) the
employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3)
the jobs are performed under similar working conditions. EEOC v. Port Auth. of N.Y. & N.J.,
768 F.3d 247, 254-55 (2d Cir. 2014). The jobs compared must be “substantially equal” with
common duties and content. Id. at 255 (citing Lavin-McEleney v. Marist Coll., 239 F.3d 476,
480 (2d Cir. 2001)).
A claim of unequal pay for equal work under Title VII is generally analyzed
under the same standards used for a claim brought under the EPA. See Tomka v. Seiler Corp.,
66 F.3d 1295, 1312 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998). However, a Title VII plaintiff “must also produce evidence of
discriminatory animus in order to make out a prima facie case of intentional sex-based salary
discrimination.” Id. at 113 (citing Aldrich v. Randolph Cent. School Dist., 963 F.2d 520, 528
(2d Cir. 1992)).
i. Ms. Grant.
Ms. Grant alleges that despite her excellent performance over the years, she was
passed over for promotion to Advertising Director in part because of her gender. (SAC ¶¶ 158,
167.) She also alleges that she suffered adverse employment actions, in the form of low revenue
account assignments and a buyout offer, because of her gender. (SAC ¶¶ 158-170.) Plaintiffs
point to two younger white male AMs who were allocated higher revenue accounts than Ms.
Grant, despite Ms. Grant’s superior experience and qualifications. (SAC ¶¶ 163-164.) Neither
of these younger males were alleged to have been promoted to Advertising Director. Ms. Grant
alleges that Maria Eliason, a younger white female AM who had been allocated higher revenue
accounts than Ms. Grant and was selected for promotion to Advertising Director in 2016. (SAC
¶ 165.) The promotion of a member of the same protected group, a female, undermines the
premise of Ms. Grant’s gender discrimination claim. With regard to pay, Ms. Grant alleges that
because of the unequal distribution of high revenue accounts, six individuals—three of whom are
females—earned far in excess of her. (SAC ¶¶ 163-65.)
With regard to Ms. Grant’s various gender discrimination claims, the SAC does
not “assert nonconclusory factual matter sufficient to ‘nudge[ ] [its] claims . . . across the line
from conceivable to plausible.’” EEOC, 768 F.3d at 254 (quoting Iqbal, 556 U.S. at 680). It is
implausible that The Times’ decision not to promote Ms. Grant to Advertising Director was
caused by animus towards her as a woman. See Patane, 508 F.3d at 111 (“The sine qua non of a
gender-based discriminatory action claim . . . is that the discrimination must be because of sex.”)
(internal quotation marks omitted); Marcus v. Leviton Mfg. Co., 661 F. App’x 29, 32 (2d Cir.
2016) (summary order) (“A plaintiff must plead facts that give ‘plausible support to a minimal
inference’ of the requisite discriminatory causality.”) (quoting Littlejohn, 795 F.3d at 310-11).
Throughout the section of the complaint exploring Ms. Grant’s claims of disparate
treatment and failure to promote, plaintiffs allege only that younger and white employees were
disproportionately promoted to Advertising Directors. (See, e.g., SAC ¶¶ 159-160.) Only after
explaining that both male and female AMs were allocated higher revenue accounts, and
substantiating Ms. Grant’s failure to promote claim by providing a single example of a female
employee who was promoted over her, does the complaint allege in a conclusory manner that
Ms. Grant was denied opportunities because of her “age, race and/or gender.” (SAC ¶¶ 158170.) Plaintiffs’ complaint does not allege sufficient factual circumstances from which a genderbased discrimination can be inferred. See Patane, 508 F.3d at 112. Similarly, there is an
insufficient factual allegation of the skill, effort, responsibility and working conditions of those
males to whom Ms. Grant’s pay is compared (whether comparators are identified by name or in a
survey or study) to nudge the equal pay claim over the line of plausibility.
ii. Ms. Walker.
Ms. Walker also alleges that she was passed over for promotion to Advertising
Director, and was denied opportunities that were given instead to “younger, white individuals”
because of her gender. (SAC ¶¶ 204-206, 211.) Plaintiffs allege that “younger white individuals
at the same level as Ms. Walker were paid compensation far in excess of her own.” (SAC ¶
207.) 1 Ms. Walker alleges that she was promoted to Account Manager on the Fashion & Jewelry
team in about 2010 and was praised for her work. (SAC ¶¶ 171-73.) She further alleges she was
given the lowest revenue accounts during her time in the Fashion & Jewelry Department, with
higher revenue accounts assigned to “her younger, white colleagues.” (SAC ¶¶ 179, 206.)
Notably, she does not allege the gender of the individuals to whom the higher revenue accounts
were assigned. She alleges that a young, white, male AM was given higher revenue accounts
and promoted to Account Director. (SAC ¶ 208.) She also alleges identifies several other
colleagues including Caroline Boccarosse, Maggie Kiselick, Mark Lloyd and Adam Hargis who
allegedly make more than she does. (SAC ¶¶ 209-10.)
One of Ms. Walker’s supervisors, Ruth Flaig, wrote negatively of Ms. Walker’s
performance on the job. (SAC ¶ 214.) At some point thereafter, Ms. Walker was offered a
buyout which she did not accept. (SAC ¶¶ 215-16.) Another of Ms. Walker’s female
supervisors, Amanda Smith, who had been hired by Ms. Levien, referred to her in the presence
of a client in the following manner: “Oh, Marjorie’s a tough girl.” (SAC ¶ 182.) Ms. Walker
characterizes this remark as “racially charged, demeaning, and downright humiliating . . . .”
(SAC ¶ 183.) When she sought a transfer to another advertising team, she was told that the only
available position was on the “Recruitment” or “Help Wanted” team. (SAC ¶ 190.) She viewed
In addressing Ms. Walker’s claims, the Court incorporates its discussion of overlapping or similarly worded
allegations made on behalf of Ms. Grant.
this position as a demotion and alleges that “older Black employees” have been steered to that
low revenue team. (SAC ¶ 194.)
Ms. Smith’s “tough girl” comment does not betray an animus based upon gender.
“[S]tray remarks, even if made by a decision maker, do not constitute sufficient evidence [to
support] a case of employment discrimination.” Danzer v. Norden Sys., Inc., 151 F.3d 50, 56
(2d Cir. 1998) (summarizing conclusion of Woroski v. Nashua Corp., 31 F.3d 105, 109-10 (2d
Cir. 1994)); Portee v. Deutsche Bank, No. 03 cv 9380 (PKC), 2006 WL 559448, at *13
(S.D.N.Y. Mar. 8, 2006). Nor does the complaint allege any causal nexus linking Ms. Smith’s
remark to any alleged adverse employment actions. See Woodard v. TWC Media Sols., Inc., No.
09 cv 3000 (BSJ) (AJP), 2011 WL 70386, at *7 (S.D.N.Y. Jan. 4, 2011), aff’d sub nom Lawless
v. TWC Media Sols., Inc., 487 F. App’x 613 (2d Cir. 2012); DeLuca v. Sirius XM Radio, Inc.,
No. 12 cv 8239 (CM), 2017 WL 3671038, at *18 (S.D.N.Y. Aug. 7, 2017).
Also, the fact that both Ms. Flaig and Ms. Smith are female weakens Ms.
Walker’s claim. A member of the same protected group may hold a discriminatory animus
against other members of that group but, depending upon the context, the inference may become
implausible. White v. Pacifica Found., 973 F. Supp. 2d 363, 380 (S.D.N.Y. 2013) (collecting
cases); Fosen v. The New York Times, No. 03 cv 3785 (KMK) (THK), 2006 WL 2927611, at *5
(S.D.N.Y. Oct. 11, 2006) (collecting cases). 2 In the context of the facts set forth in the complaint
which allege discrimination in favor of younger white employees, many of whom are female, the
As will be discussed, this case does not allege “sex-plus” discrimination where a person may have animus towards
members of a group with a combination of particular characteristics. The complaint that Ms. Grant and Ms. Walker
bring alleges class claims that are specific to single characteristics, e.g. a “Race Class,” a “Gender Class” and an
“Age Class.” Insofar as it relates to Ms. Smith’s “tough girl” remark, there is no allegation in the complaint that Ms.
Smith or The Times exhibited discriminatory animus towards women who were tough or strong.
inference that Ms. Flaig’s performance review and Ms. Smith’s comment were both motivated
by a discriminatory animus against Ms. Walker because she is a woman is weak.
Similarly, the negative performance review by Ms. Flaig even when followed by a
buyout offer made, according to the complaint, “to a number of divisions, including to the
Advertising [D]ivision,” (SAC ¶ 212) does not support an inference of discriminatory animus.
As used in the complaint, the Court construes the term buyout to mean a program whereby pay
and/or benefits to which the employee would not otherwise be entitled are exchanged for the
employee’s voluntary separation from the company. The Court comfortably concludes that the
offering of a buyout to all employees of the Advertising Division does not support an inference
of discrimination based upon gender. The additional comment by Ms. Walker’s supervisor that
she was “not telling either [Ms. Walker or another AM] to take the buyout” but wanted to remind
them that it was there, did not make the buyout offer coercive or a de facto firing. Ms. Walker
did not accept the offer and no adverse consequences are alleged to have ensued. Ms. Grant
similarly alleges no adverse consequences stemming from her failure to accept a buyout offer.
The Court does not consider the allegations of the complaint in isolation but
considers the totality of the incidents, comments and circumstances alleged throughout the
complaint and concludes that Ms. Grant and Ms. Walker have not adequately alleged a gender
discrimination or pay discrimination claim against The New York Times. Ms. Grant and Ms.
Walker’s race and age claims and Ms. Walker’s disability claim, as to which no motion has been
made, all survive.
iii. This is not a “Gender-Plus” case.
Plaintiffs cite cases involving allegations of gender-plus discrimination where the
discriminatory animus may be aimed at, for example, women over 40 or women who have
children or are single. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 109 (2d Cir. 2010)
(holding that plaintiff plausibly alleged claims of age and age-plus-gender discrimination where
comparators were men and younger women). But the SAC does not allege gender-plus-age
discrimination. The SAC makes no specific references to any age-plus-gender claims, and
plaintiffs seek to certify an “Age Class” of “older employees,” male and female, a separate
“Gender Class,” consisting of “female employees” of all ages, and a “Race Class” of black
employees, male and female, older and not. (SAC ¶¶ 224, 248, 272.) The inclusion of an
allegation that there was discrimination on the basis of “age, race, and/or gender,” (see, e.g.,
SAC ¶ 167) is not the equivalent of alleging a claim based upon the unique combination of two
or more factors. Because these plaintiffs have alleged separate putative Age, Gender and Race
Classes which is inconsistent with a gender-plus claim, their complaint does not give “fair notice
of the basis” for gender-plus discrimination claims. Swierkiewicz, 534 U.S. at 514; Rule 8, Fed.
R. Civ. P.
b. New York Human Rights and Equal Pay Laws.
Plaintiffs have asserted claims under the New York State Human Rights Law,
N.Y. EXEC. L. § 290 et seq., against all defendants for gender discrimination and against Mr.
Thompson and Ms. Levien for aiding and abetting that gender discrimination. Plaintiffs also
bring claims under the New York Equal Pay Law, N.Y. LAB. L. § 194. Claims brought under the
EPL are analyzed using the same standards used to consider a federal EPA claim. Talwar v.
Staten Island Univ. Hosp., 610 F. App’x 28, 30 n.2 (2d Cir. 2015) (summary order). Similarly,
“[e]mployment discrimination claims brought under the NYSHRL are analyzed identically to
claims under . . . Title VII.” Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 316 n. 2 (2d
Cir. 1999). Thus the outcome of plaintiffs’ NYSHRL and EPL discrimination claims follows
that of their Title VII and EPA claims. Id.; Talwar, 610 F. App’x at 31. Therefore, plaintiffs’
NYSHRL gender discrimination and New York EPL claims are also dismissed.
c. New York City Human Rights Law.
Finally, plaintiffs have asserted claims under the New York City Human Rights
Law, N.Y.C. Admin. Code § 8-101 et seq., against all defendants for gender discrimination and
against Mr. Thompson and Ms. Levien for aiding and abetting that gender discrimination.
Section 8–107(1)(a) of the NYCHRL provides that “[i]t shall be an unlawful discriminatory
practice” for an employer to discriminate against any person “in compensation or in terms,
conditions or privileges of employment” because of “actual or perceived . . . gender . . . .”
N.Y.C. Admin. Code § 8–107(1)(a)(3). “[C]ourts must analyze NYCHRL claims separately and
independently from any federal and state law claims,” and “even if the challenged conduct is not
actionable under federal and state law, federal courts must consider separately whether it is
actionable under the broader New York City standards.” Mihalik v. Credit Agricole Cheuvreux
N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013); Talwar, 610 F. App’x at 31. “To establish a
gender discrimination claim under the NYCHRL, the plaintiff need only demonstrate by a
preponderance of the evidence that she has been treated less well than other employees because
of her gender.” Mihalik, 715 F.3d at 110 (internal quotation marks omitted).
Although the NYCHRL is to be interpreted broadly, it is not a “general civility
code.” Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 40 (1st Dep’t 2009). “The plaintiff
still bears the burden of showing that the conduct is caused by a discriminatory motive.”
Mihalik, 715 F.3d at 110. In the present case, no facts, arguments or theories are advanced with
respect to plaintiffs’ NYCHRL claim different from those advanced in support of the other
gender and equal pay claims. Nor have plaintiffs provided any argument as to how this
NYCHRL claim should be analyzed differently. Nevertheless, even under the more liberal
standards of the NYCHRL, plaintiffs’ claims fail. As the Court has already discussed, nothing in
the complaint plausibly demonstrates that plaintiffs were discriminated against because of their
gender, or that any of the conduct alleged in the complaint was motivated by gender-based
animus. Therefore, plaintiffs’ claims under the NYCHRL are dismissed insofar as they allege
discrimination or a denial of equal pay based on gender.
Motion to Strike Class Action Allegations.
Plaintiffs’ complaint includes multiple class allegations, and alleges that the
putative class satisfies the requirements of Rule 23(a), Fed. R. Civ. P., along with the
requirements of Rules 23(b)(1), (b)(2), and (b)(3). (See, e.g., SAC ¶¶ 234-245.) Defendants
have moved to strike plaintiffs’ claims under Rules 23(b)(1) and (b)(2), arguing that they fail “as
a matter of law” and that if the putative class were to be certified at all, it could only do so
pursuant to Rule 23(b)(3). (Defs.’ Mem. 2.)
“[M]otion[s] to strike class allegations . . . [are] . . . disfavored because [they]
require a reviewing court to preemptively terminate the class aspects of . . . litigation, solely on
the basis of what is alleged in the complaint, and before plaintiffs are permitted to complete the
discovery to which they would otherwise be entitled on questions relevant to class certification.”
Winfield v. Citibank, N.A., 842 F. Supp. 2d 560, 573 (S.D.N.Y. 2012) (quoting Chenesky v.
N.Y. Life Ins. Co., No. 07 cv 11504 (WHP), 2011 WL 1795305, at *1 (S.D.N.Y. Apr. 27,
2011)). But see Rogers v. Capital One Servs., LLC, No. 10 cv 398 (VLB), 2011 WL 873312, at
*7 (D. Conn. Feb. 19, 2011), aff’d 447 F. App’x. 245 (2d Cir. 2011) (holding that a Court can, in
its discretion, grant a motion to strike and order deletion of class claims where the basis for the
motion to strike is distinct from the issues that would be determined on class certification and
where it is clear that plaintiffs cannot possibly prove the deleted portions of the claims). In this
case, defendants’ motion to strike plaintiffs’ class allegations is premature, and should be
addressed at the class certification stage. The defendants’ motion to strike will be denied without
prejudice to the defendants’ ability to oppose certification on these same grounds.
Of course, plaintiffs may not pursue class claims based on any individual claim
that has been dismissed.
The following claims for relief against the defendants are dismissed: plaintiffs’
individual gender-based Equal Pay Act claims from the first cause of action; plaintiffs’
individual gender-based Equal Pay Law claims from the second cause of action; plaintiffs’
individual gender discrimination claims under the New York State Human Rights Law from the
fifth cause of action; plaintiffs’ individual gender discrimination claims under the New York
City Human Rights Law from the seventh cause of action; plaintiffs’ individual claims of aiding
and abetting gender discrimination under the New York State Human Rights Law from the
eleventh cause of action; plaintiffs’ individual claims of aiding and abetting gender
discrimination under the New York City Human Rights Law from the twelfth cause of action;
and plaintiff’s individual gender discrimination claims under Title VII from the thirteenth cause
The defendants’ motion to dismiss is GRANTED.
The defendants’ motion to strike certain class action allegations is DENIED
without prejudice to the defendants’ ability to oppose certification on those same grounds.
The Clerk is directed to terminate the motion (Dkt. 61).
Dated: New York, New York
September 14, 2017
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