Tsepenyuk v. Fred Alger & Company, Inc.

Background

Irene Tsepenyuk brought claims against Fred Alger & Company, Inc. for gender and pregnancy discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the New York State Human Rights Law, the New York City Human Rights Law, the Americans with Disabilities Act, and New Jersey’s state antidiscrimination law. She also asserted disability-related discrimination, hostile-work-environment, and failure-to-accommodate claims under the Americans with Disabilities Act.

In May 2016, before Tsepenyuk’s termination, Chief Financial Officer Robert Kincel prepared a personnel plan identifying her for replacement as part of a reorganization. The plan stated that the replacement should be a lower-level and less expensive Corporate Accountant. Tsepenyuk was terminated on May 10, 2017, and her position was filled by a man. She argued that her treatment, her negative performance review, her supervisors’ conduct, and her complaints showed discrimination and retaliation. Fred Alger disputed those characterizations and maintained that the termination resulted from her underwhelming performance and limited development as the company’s business became more demanding.

Summary-judgment standard

Summary judgment is a decision without a trial when the evidence shows that no reasonable jury could find for the opposing party on a legally important fact. The court must view the evidence favorably to the party opposing the motion, but that party cannot rely only on unsupported allegations or speculation.

Discrimination under Title VII, the New York State Human Rights Law, and New Jersey law

The court held that Tsepenyuk met the minimal initial requirements for a discrimination claim: she was pregnant, qualified for her position, and ultimately suffered termination. The court also concluded that the circumstances could support an initial inference of discriminatory intent.

Fred Alger, however, offered a legitimate, nondiscriminatory reason for the termination—Tsepenyuk’s underwhelming performance and stagnant development in a more challenging work environment. The court found that this explanation was supported by the evidence, including Tsepenyuk’s generally average performance reviews, repeated mistakes described by Kincel, and the company’s effort to increase the sophistication of its accounting group.

The court further held that Tsepenyuk did not show that Fred Alger’s explanation was a pretext, meaning a false reason hiding unlawful discrimination. The decision to terminate her was made by Kincel and Hal Liebes in May 2016, before Morrello prepared Tsepenyuk’s negative review in November and December 2016. The court found no evidence that Morrello participated in the termination decision or shared his alleged negative views of Tsepenyuk with the decision-makers. The court also found that Beth Mohr was not a sufficiently similar comparator because Mohr had worked at Fred Alger longer, had additional responsibilities, and had experienced two pregnancies and maternity leaves without incident.

The court therefore granted Fred Alger summary judgment on Tsepenyuk’s discrimination claims under Title VII, the New York State Human Rights Law, and New Jersey law.

Discrimination under the New York City Human Rights Law

The court separately evaluated the New York City Human Rights Law, which asks whether the plaintiff was treated less well because of a protected characteristic. The court found that Tsepenyuk did not provide enough detail about how men or nonpregnant women were treated, or about when and how often Morrello allegedly yelled at her, failed to hold a door, or criticized her work. The court concluded that, even considered together, the alleged conduct was insufficiently specific and largely amounted to petty slights or trivial inconveniences. It granted summary judgment on this claim.

Retaliation

For her retaliation claims under Title VII, the New York State Human Rights Law, and the Americans with Disabilities Act, Tsepenyuk had to show that she engaged in legally protected activity, that Fred Alger knew about it, that she suffered an adverse action, and that the protected activity caused the action. The court also applied the requirement that the protected activity be the but-for cause of the retaliation—the action would not have happened without it.

Tsepenyuk relied on conversations with Spano and Kincel and an email involving Human Resources employee Samantha Winters. The court stated that, even if these communications were protected complaints, Spano and Winters were not decision-makers in the termination, and Tsepenyuk’s conversation with Kincel occurred after the decision to terminate her had already been made. The court found no required causal connection and granted summary judgment on these retaliation claims.

For the New York City Human Rights Law retaliation claim, the court likewise found no connection between Tsepenyuk’s communications and the termination or any other conduct reasonably likely to discourage protected activity. It granted summary judgment on that claim as well.

Americans with Disabilities Act claims

The court held that Tsepenyuk did not establish that she had a disability covered by the Americans with Disabilities Act. Pregnancy alone does not qualify as a disability under that statute, and the court found that the record did not establish additional pregnancy complications that met the statutory definition or that Fred Alger knew of such complications. The court also rejected the argument that breast pumping or lactation constituted a disability under the Act.

Because Tsepenyuk did not establish the required disability, the court granted summary judgment on her Americans with Disabilities Act claims for discrimination, hostile work environment, and failure to accommodate.

Disposition

Judge George B. Daniels granted Fred Alger’s motion for summary judgment dismissing all of Tsepenyuk’s claims. The clerk was directed to close the motion and the case.