Romano v. AC360 Media, LLC

Background

Brittany Romano sued A360 Media, LLC, formerly known as American Media, Inc., and three former supervisors: Eli Lippman, Spencer Cain, and Nadine DeNinno. She alleged claims under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the New York State Human Rights Law, the New York City Human Rights Law, and New York Labor Law. She also asserted state-law claims against DeNinno for slander, interference with a business opportunity, interference with a contract, and prima facie tort.

Romano alleged that she has attention deficit hyperactivity disorder and dyslexia. She said DeNinno treated her differently after learning about her ADHD, including by ostracizing her, yelling at her, publicly disciplining her, and deleting her workplace messaging account after Romano complained to human resources. After DeNinno left A360, Romano alleged that Lippman and Cain changed her work from writing original articles to administrative tasks and changed her by-line from “writer” to “admin.” She said Lippman denied her request to return to her former duties as a reasonable accommodation for ADHD. Romano later filed a charge with the Equal Employment Opportunity Commission and was terminated. She also alleged that DeNinno later made false statements that caused the New York Post to withdraw a job offer.

Motions and Legal Standards

DeNinno moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss the four state-law tort claims for lack of subject-matter jurisdiction and under Rule 12(b)(6) to dismiss the discrimination, retaliation, and workplace-environment claims. A360, Lippman, and Cain moved under Rule 12(b)(6) to dismiss all claims against them. Under Rule 12(b)(6), the complaint had to contain enough nonconclusory facts to make the alleged violations plausible. The court generally accepted the complaint’s well-pleaded factual allegations as true when deciding the motions.

State-Law Tort Claims

The court dismissed Counts 14 through 17 for lack of supplemental jurisdiction. Supplemental jurisdiction allows a federal court to hear related state-law claims that share a common set of underlying facts with federal claims. The court found insufficient overlap because Romano’s federal claims concerned events during her employment at A360, while the tort claims concerned DeNinno’s alleged conduct during Romano’s later dealings with the New York Post. The claims involved different time periods, evidence, and alleged injuries. The court also stated that the state-law tort issues would substantially predominate even if some jurisdiction existed.

These claims were dismissed without prejudice to litigation in a forum with proper jurisdiction. Romano did not oppose dismissal of the tortious-interference-with-contract and prima-facie-tort claims, but she argued that the court could exercise supplemental jurisdiction over the slander and tortious-interference-with-business-opportunity claims. The court rejected that argument.

Discrimination and Hostile-Work-Environment Claims

The court dismissed Romano’s sex-discrimination claims against the A360 defendants under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. Although Romano adequately alleged that she was a woman, qualified for her position, and suffered an adverse employment action when she was terminated, the court found insufficient facts supporting an inference that she was terminated or treated adversely because of her sex. Allegations about a “sexist, all boy club culture,” unwanted personal questions, and feeling uncomfortable were too conclusory. The court also dismissed the sex-discrimination claim against DeNinno because Romano did not connect DeNinno’s alleged conduct to her sex.

The court dismissed disability-discrimination claims against the A360 defendants under the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. The court found that changing Romano’s title and substantially changing her responsibilities could qualify as a materially adverse employment action at the pleading stage. But the complaint did not include enough facts showing that those changes occurred because of her ADHD. The court also dismissed the disability-discrimination claims against DeNinno because Romano did not allege facts showing that DeNinno treated her less favorably because of her disability; the complaint suggested that other employees experienced the same management problems.

The court dismissed all hostile-work-environment claims. It found that Romano had not alleged enough facts showing that the conduct was sufficiently severe or pervasive under federal and state law, or that it occurred because of her sex or disability. The court reached the same conclusion under the more lenient New York City standard, noting that Romano did not allege facts suggesting that only female or disabled employees were subjected to the complained-of conduct.

Reasonable Accommodation

The court dismissed Romano’s Americans with Disabilities Act reasonable-accommodation claim. It found that she adequately alleged that A360 knew about her ADHD and failed to engage in a good-faith interactive process after she requested accommodation. But the complaint did not provide enough information to show that her requested accommodation—relieving her of the administrative tasks and allowing her to write articles as before—was reasonable. The court could not determine from the pleadings whether the administrative tasks were essential functions of the job or whether a writing position without those tasks was available.

Retaliation

The court dismissed the retaliation claims against DeNinno under the New York State Human Rights Law and the New York City Human Rights Law. Romano alleged that she complained to human resources about DeNinno’s management and that DeNinno then deleted her messaging account and stopped speaking with her. The court held that the complaint did not say that Romano’s human-resources complaint referred to discrimination or another legally protected activity. A general complaint about an “abusive and toxic” management style was not enough.

The court dismissed the retaliation claims against the A360 defendants under Title VII, the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. Romano alleged that A360 terminated her about one month after she filed her Equal Employment Opportunity Commission charge. But she did not allege when A360 learned about the charge or otherwise received notice of it. The court therefore dismissed these claims without prejudice.

Aiding and Abetting, Discriminatory Interference, and Vicarious Liability

The court dismissed the aiding-and-abetting claims under the New York State and New York City Human Rights Laws. Romano did not identify who allegedly aided whom or what conduct was aided. The court also held that a person or company cannot aid and abet its own conduct, and that aiding-and-abetting liability requires a plausibly alleged underlying discrimination violation. The claims in Counts 7 and 10 were dismissed with leave to move to replead.

The court dismissed Count 11, the claim under New York City Human Rights Law section 8-107(19), because Romano did not allege that any defendant threatened her. The court dismissed the vicarious-liability claim in Count 12 against DeNinno because Romano did not plead facts showing that DeNinno had authority over her hiring, wages, or dismissal. It dismissed the claim against the A360 defendants because Romano had not plausibly alleged an underlying discrimination violation. Both rulings were made with leave to move to replead.

Wage Notice

The court dismissed Count 13 under New York Labor Law section 195(1), which concerns an employer’s obligation to provide a wage notice at hiring. Romano alleged only that A360 failed to provide an accurate notice. She did not clarify whether A360 provided no notice or provided a notice containing incorrect information. The claim was dismissed with leave to move to replead.

Disposition

Judge Laura Taylor Swain granted both motions to dismiss in their entirety. Counts 14 through 17 were dismissed for lack of subject-matter jurisdiction, without prejudice to litigation in a forum of competent jurisdiction. Counts 1 through 13 were dismissed for failure to state a claim, but Romano was allowed to file a motion for permission to amend, with a proposed amended complaint and a comparison showing the changes, within 21 days after entry of the order. If she did not timely seek permission to amend, Counts 1 through 13 would be dismissed with prejudice.