Back v. Bank Hapoalim, B.M.

Background

Sol Back sued her former employer, Bank Hapoalim, B.M. (BHI), and its chief executive officer, Gil Karni. She asserted sex-discrimination claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law. She also asserted retaliation under New York Labor Law.

Back alleged that she experienced occasional sexual harassment and that Karni engaged in offensive or unequal treatment, including requiring her to work during the Sabbath and Jewish holidays while allowing male executives to leave early. She also alleged that Karni attended a company holiday party while sick with COVID-19. Back filed a formal complaint under BHI’s whistleblower policy concerning Karni’s conduct, the company’s response to employee complaints, and COVID-19 safety practices.

Back alleged that after her complaint, Karni became hostile toward her, senior management reduced contact with her, and BHI’s general counsel offered her a transfer or severance package. BHI later ordered a temporary transfer to the compliance department. Back’s attorney told BHI that the transfer amounted to constructive termination. The opinion also discusses a June 21, 2022 communication in which BHI asked whether Back would return to work and Back responded through her attorney that she had been constructively terminated.

Motion and governing standard

Defendants moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not allege enough facts to state a legally plausible claim. At this stage, the court accepted well-pleaded factual allegations as true and drew reasonable inferences in Back’s favor, but it did not accept legal conclusions or unsupported assertions.

Constructive discharge and adverse action

The court treated Back’s claims as based on constructive discharge rather than a formal termination. It reasoned that the complaint expressly alleged constructive termination and that Back had told BHI through her attorney that she believed she had been constructively terminated. The court stated that constructive discharge requires an employee to resign because the employer deliberately made working conditions so intolerable that a reasonable person would feel compelled to resign.

The court held that Back did not adequately allege a materially adverse employment action. It rejected her reliance on Karni’s negative comments and hostile behavior, her alleged isolation from senior management, the discussions of a transfer or severance package, and the temporary transfer to compliance. The court found that these allegations did not show working conditions sufficiently intolerable to constitute constructive discharge. It also found that Back did not provide facts showing that the temporary transfer involved a lower salary, less favorable title, loss of benefits, reduced responsibilities, or another concrete disadvantage.

Discriminatory intent

The court also held that Back did not plausibly allege that any adverse employment action was motivated by sex. Back compared her treatment with that of five male senior executives who complained about Karni’s behavior. The court found that those executives were not similarly situated because they had substantially different positions, seniority, responsibilities, business units, and reporting relationships. The court also noted that Back alleged she filed a formal whistleblower complaint, while she did not allege that the male executives filed formal complaints under the same policy.

The court further found that Back’s allegations about a misogynistic workplace culture did not connect the alleged offensive conduct to the employment action at issue. In particular, the court stated that Karni’s alleged behavior, including scratching his crotch near Back and ordering her to prepare and clear his desk for lunch, was not alleged to have occurred because of Back’s sex or to have caused his later response to her complaint.

Disposition

The court granted Defendants’ motion to dismiss the Title VII claim. After dismissing the federal claim, it declined to exercise supplemental jurisdiction—the court’s authority to decide related state-law claims—over Back’s claims under New York law. The court dismissed all non-federal claims without prejudice and directed the clerk to terminate the motion and close the case.