Bass, Berry & Sims attorney Chris Lazarini examined a case where Plaintiff, a 61-year-old female bank employee, sufficiently pleaded constructive discharge in support of her employment discrimination claims where she was given a choice between accepting a demotion or facing “dire consequences” if she failed to meet an unrealistic sales goal. 

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.

Nielsen vs. Pioneer Bank, No. 1:15-cv-623 (N.D. N.Y., 9/13/16) 

Allegations that an employment discrimination plaintiff was given a choice between accepting demotion and facing “dire consequences” if she failed to meet an unrealistic goal sufficiently pleads constructive discharge. 

Plaintiff is a 61-year-old female who worked for Pioneer Bank (the “Bank”) in various capacities for 28 years. In 1997, Plaintiff was asked to serve as president of the Bank’s broker-dealer subsidiary. In that capacity, she led a team of two financial advisors and thirty sales representatives. In 2012, the Bank hired a new CEO (“Amell”) who set out to change the Bank’s work culture to appeal to younger customers. Amell installed a chief customer experience officer (“Tomczak”) with supervisory authority over Plaintiff. In her January 2014 performance review, Tomczak gave Plaintiff a pay raise and told her he wanted the Bank’s investment clients to experience “world class” service. Under Plaintiff’s management, the broker-dealer met or exceeded its 2014 first quarter goals and realized an eleven percent increase in revenues over the first quarter of 2013. In her quarterly review, however, Tomczak told Plaintiff that she was doing a “terrible” job and would be demoted to financial advisor so that he could assume the presidency of the broker-dealer. A few weeks later, Amell and Tomczak asked Plaintiff when she intended to retire and, apparently not happy with her stated intent to work for another five or six years, gave her the choice of accepting the demotion or being charged with responsibility for quadrupling the broker-dealer’s sales within six months. Failure to meet that target, according to Amell, would result in “dire consequences.” The following day, Plaintiff resigned, taking early retirement. She timely filed charges of age and gender discrimination against the Bank, Amell and Tomczak with the EEOC and New York state, both of which denied her claims and issued a right to sue letter. Plaintiff filed this action, and Defendants moved to dismiss.

The Court applies the familiar burden-shifting framework to Plaintiff’s claims, examining whether she pled a prima-facie case of discrimination sufficient to shift the burden to the Bank to articulate a legitimate, non-discriminatory reason for its adverse employment action. The Bank concedes that Plaintiff established that she was a member of a protected class and was qualified for her former position, but argued that her election to take early retirement did not amount to an adverse employment action and that Plaintiff had not shown an inference of discrimination.

Reading the complaint in the light most favorable to Plaintiff, the Court disagrees. First, her allegations of choosing between demotion and “dire consequences” for failing to meet an unrealistic goal sufficiently plead constructive discharge. Second, the inquiries about Plaintiff’s retirement plans, coupled with the threats of demotion and being replaced by a younger, male employee, create an inference of age and gender discrimination sufficient to meet her prima facie burden. The Court denies the Bank’s motion, deferring to the summary judgment stage or beyond the issue of whether the Bank can establish a non-discriminatory reason for its actions, at which point the burden will shift back to Plaintiff to show that the Bank’s reason was a pretext for unlawful discrimination. 

The Court grants Amell’s and Tomczak’s motions to dismiss, finding that neither Title VII nor the ADEA create liability in individual supervisors and co-workers who are not the plaintiff’s actual employers.