Thacker v. HSBC

Background

Monique Thacker, described in the opinion as an Indian woman and a long-time HSBC employee, sued HSBC Bank USA, N.A. She alleged three causes of action: discrimination under the New York State Human Rights Law (NYSHRL), discrimination under the New York City Human Rights Law (NYCHRL), and retaliation under Section 740 of the New York Labor Law (NYLL), New York’s whistleblower law.

Thacker alleged that HSBC did not promote her to the Wealth Chief of Staff position in December 2020, instead hiring Jennifer Yungbluth, a white woman whom Thacker alleged had substantially fewer relevant qualifications. Thacker also alleged that an HSBC human-resources manager told her, “you’re dark.” She further described other employment events, including later hiring decisions, changes to her title, and a reduced pay increase.

Thacker alleged that she reported concerns about regulatory violations to HSBC management from June 2021 through June 2022. She claimed that HSBC later took retaliatory actions against her, including giving her an unusually low bonus on February 23, 2022, and other workplace actions.

Legal standard

HSBC filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). At this stage, the court accepts well-pleaded factual allegations as true and asks whether they plausibly show an entitlement to relief. The court does not decide the ultimate truth of the allegations or weigh evidence.

Discrimination claims

The court held that Thacker plausibly pleaded discrimination under both the NYSHRL and the NYCHRL. For the NYSHRL claim, the court concluded that she adequately alleged that she was in a protected class, qualified for the position, suffered an adverse employment action by not receiving the promotion, and had at least minimal support for an inference that national origin influenced HSBC’s decision.

The court relied especially on Thacker’s allegations that she applied for the Wealth Chief of Staff position, was more qualified than Yungbluth, and was rejected in favor of a white candidate. The alleged “you’re dark” comment also supported the inference of discriminatory intent. The court noted that Thacker’s other allegations provided weaker support, including the later position for which she did not provide comparative qualification information, but found the allegations concerning Yungbluth and the HR comment sufficient.

Because the NYCHRL provides broader protection against discrimination and Thacker plausibly stated an NYSHRL claim, the court also found that she plausibly stated her NYCHRL claim. The court therefore denied HSBC’s motion to dismiss both discrimination claims.

Retaliation claim

The court held that Thacker did not plausibly plead retaliation under NYLL Section 740. That statute requires a plaintiff to allege protected activity—disclosing or threatening to disclose to a supervisor or public body an employer activity, policy, or practice that the employee reasonably believes violates a law, rule, or regulation—and a retaliatory action connected to that report.

The court found that Thacker did not link particular reports to particular adverse actions. Many alleged actions had no dates, making it impossible to determine whether they followed a protected report. Other allegations described conduct that, as pleaded, amounted to ordinary workplace annoyances or lacked enough factual detail to show a legally actionable adverse action.

The court recognized that the alleged low bonus could qualify as an adverse action and occurred shortly after Thacker’s early-February 2022 meeting with HSBC’s Legal and Compliance personnel. But the complaint did not adequately state what Thacker told those personnel. It said only that she sought a reporting change because Mr. Pittsey’s “legally dubious decisions” were placing her licenses at risk. The court could not infer that she identified particular activities or told HSBC that she believed those activities violated the law. The court also found that the complaint did not identify another adequately pleaded protected activity before the bonus reduction.

The court therefore granted HSBC’s motion to dismiss the NYLL retaliation claim.

Leave to amend and disposition

The court granted Thacker leave to file an amended complaint repleading the Section 740 retaliation claim. The amended complaint had to be filed and served no later than twenty-one days after April 24, 2023.

In the conclusion, the court denied HSBC’s motion to dismiss the NYSHRL and NYCHRL discrimination claims and granted the motion as to the NYLL retaliation claim. Because this was a Rule 12(b)(6) pleading decision, the court did not determine whether HSBC actually discriminated against or retaliated against Thacker.