Ndongo v. Bank of China Limited

Background

Isabelle Onana Ndongo sued Bank of China Limited and Dongkun Chu under the New York State Human Rights Law and New York City Human Rights Law. She alleged employment discrimination based on age, gender, race, color, and national origin; retaliation; a hostile work environment; aiding and abetting; and supervisory liability. She also alleged that she was constructively discharged in May 2020. Ndongo withdrew a separate interference claim in her opposition to the motion.

Ndongo alleged that Bank of China hired younger white and Asian male employees, eliminated her racially diverse team, transferred leadership responsibilities to other employees, did not increase her salary, denied her a promotion, and used or rebranded a risk-assessment tool that she had developed without giving her credit. She also alleged that Chu made comments calling her “incompetent,” “rude,” “too assertive,” and “abnormal.” After she complained to Chu on October 11, 2019, she alleged that defendants imposed excessive assignments and deadlines, monitored her, criticized her publicly, denied her access to the employee network, and gave her a negative performance evaluation.

Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. At this stage, the court accepted the complaint’s factual allegations as true but did not have to accept conclusory statements.

Court’s Analysis

Discrimination. The court held that Ndongo did not plausibly allege disparate treatment because she did not provide specific facts showing that the coworkers she identified were similarly situated to her in all important respects. The complaint did not identify the relevant coworkers or describe their qualifications, duties, or responsibilities in enough detail. The court also found that the identified employees were not plausibly comparable based on the positions described in the complaint.

The failure-to-promote theory also failed. Ndongo alleged that she requested a promotion to Vice President and was passed over, but she did not clearly allege that she applied for a specific position and was rejected. She also did not allege who received the position instead or that a Vice President position was open when she made her request. The court further held that the comments cited by Ndongo did not plausibly show discriminatory intent because she did not allege facts connecting those facially neutral terms to her protected characteristics.

Retaliation. The court found that Ndongo plausibly alleged protected activity because her October 11, 2019 complaint referred specifically to Chu’s “discriminatory comments and conduct.” But the court held that the alleged retaliatory actions, including extra work, a longer workday, lack of notice about remote work, and temporary inability to access the virtual network, were minor inconveniences that would not reasonably deter a person from complaining about discrimination. The negative performance evaluation was more significant, but the court found no sufficient causal connection because it occurred approximately six or seven months after the complaint and the complaint alleged no non-conclusory facts showing retaliatory motive. The court also noted that Ndongo did not provide a date for the alleged failure to promote, preventing a causal inference based on timing.

Hostile work environment and related claims. The court dismissed the hostile-work-environment claim because the alleged conduct was mostly petty slights or trivial inconveniences and Ndongo did not provide specific facts supporting an inference that the conduct occurred because of her protected characteristics. To the extent she asserted constructive discharge, that claim failed for the same reasons. The aiding-and-abetting and supervisory-liability claims also failed because those claims required an underlying violation, which the court found was not adequately pleaded.

Disposition

Judge Ronnie Abrams granted defendants’ motion to dismiss, albeit without prejudice. The court directed that Ndongo may amend the complaint once within thirty days, provided she has a good-faith basis to do so. The Clerk of Court was directed to terminate the pending motion.