Moore v. Hadestown Broadway Limited Liability Company

Background

Kim Moore, a Black woman who worked as an actress, was hired by Hadestown Broadway Limited Liability Company to perform in the Broadway musical "Hadestown." She played Worker #1 in the Workers Chorus. In November 2021, the Workers Chorus consisted exclusively of Black cast members. Hadestown personnel sent emails acknowledging concern that the all-Black Workers Chorus, together with other casting arrangements, conveyed an unintended "white savior story." Moore alleged that she complained to a Hadestown human-resources employee about anti-Black discrimination and separately complained to her union representative.

Moore alleged that Hadestown then sought to replace her with a white woman, told her that her employment would end, terminated her on December 5, 2021, and replaced her with a white actress two days later. Her amended complaint asserted four discrimination claims and four retaliation claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, the New York City Human Rights Law, and 42 U.S.C. § 1981.

Hadestown moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. Hadestown argued that Moore had not plausibly alleged discrimination or retaliation and that applying the discrimination laws to its casting decisions would violate its First Amendment right to control the artistic expression of the musical. Hadestown also argued that Moore was required to pursue arbitration, but it did not move to compel arbitration.

Documents Considered on the Motion

Judge Preska ruled that the court could consider two emails attached to Hadestown’s motion because Moore relied on them in her amended complaint. The court could not consider Moore’s employment contracts, an email exchange between a Hadestown manager and Moore’s agent, or the collective bargaining agreement because Moore had not incorporated those documents into her complaint or relied on their terms and effects. The court also declined to convert the motion into one for summary judgment because Moore had not yet had an opportunity to conduct discovery.

Discrimination Claims

The court concluded that Moore plausibly alleged disparate-treatment discrimination under all four statutes. It found that her termination qualified as an adverse employment action and that the allegations that Hadestown replaced her with a white actress, after discussing the racial composition of the Workers Chorus, supported an inference of discriminatory intent. The court also concluded that Moore plausibly alleged that she was treated less well because of her race under the New York State and New York City laws.

The court reached a different conclusion regarding the federal hostile-work-environment theory. It held that the alleged incidents were not sufficiently severe, pervasive, continuous, or concerted to establish a hostile work environment under Title VII. Under the more lenient standards applicable to the New York State and New York City laws, however, the court concluded that Moore adequately pleaded hostile-work-environment theories under those laws.

Despite finding that Moore had adequately pleaded the discrimination theories, the court held that the First Amendment barred the four discrimination claims. The court reasoned that live theater is protected artistic expression and that Hadestown’s casting decisions were inherently expressive because the racial composition of the cast affected the story conveyed on stage. In the court’s view, awarding Moore relief on the discrimination claims would regulate Hadestown’s protected choice to avoid conveying an unintended "white savior story." The court therefore granted Hadestown’s motion as to Counts One, Three, Five, and Seven and dismissed those claims with prejudice.

Retaliation Claims

The court held that Moore plausibly alleged retaliation under all four statutes. It concluded that her complaint to Hadestown’s human-resources employee could qualify as protected activity because she alleged that she complained about anti-Black discrimination. The court also found that Hadestown had knowledge of that complaint because it was made to a Hadestown human-resources employee.

The court found a plausible causal connection because Moore alleged that she was terminated less than two weeks after making the complaint. It separately held that Moore had not adequately alleged that Hadestown knew about her complaint to her union representative, but the complaint to human resources was sufficient for the retaliation claims to proceed. The court also held that the First Amendment defense did not apply to the retaliation claims because Moore alleged that she was fired for complaining about discrimination, not that the firing was part of Hadestown’s artistic effort to shape the musical’s message.

Proposed Amendment and Disposition

Moore alternatively requested permission to file a second amended complaint. Judge Preska denied that request because the proposed allegations would not overcome the First Amendment bar to the discrimination claims and would therefore be futile.

The court granted in part and denied in part Hadestown’s motion to dismiss. It denied the motion as to Counts Two, Four, Six, and Eight, the retaliation claims. It granted the motion as to Counts One, Three, Five, and Seven, the discrimination claims, and dismissed those claims with prejudice. The court also denied Moore’s request for leave to amend and directed the parties to appear for a settlement conference.