Cheong v. The Bank of East Asia, Ltd

Background

Victor Cheong sued his former employer, The Bank of East Asia, Ltd. and its New York Branch, alleging discrimination based on age, sexual orientation, and national origin; a hostile work environment; and retaliation under federal, New York State, and New York City law. Cheong alleged that the bank gave him increasingly low performance reviews, placed him on a performance improvement plan, changed his title, failed to consider him for positions, interfered with his work, and terminated him after he complained to human resources, filed a charge with the Equal Employment Opportunity Commission, and brought this lawsuit.

The bank moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not contain enough factual allegations to plausibly state a legal claim.

Statute of limitations

The court held that the continuing-violation doctrine did not apply because Cheong alleged separate employment actions occurring on identifiable dates, including failures to promote, performance reviews, and changes to his work conditions. The court did not consider untimely allegations as part of a continuing violation. It stated, however, that those acts could be used as background evidence when appropriate.

Federal discrimination claims

The court dismissed Cheong’s age-discrimination claim under the Age Discrimination in Employment Act. Although Cheong adequately alleged that he was over 40, qualified, and subjected to adverse employment actions, the court found that he did not allege facts plausibly linking those actions to his age. The court noted that the younger employees who received positions were not shown to have been selected because they were younger, and that the alleged favoritism and hostility were not connected to age.

The court also dismissed Cheong’s sexual-orientation discrimination claim under Title VII of the Civil Rights Act of 1964. The court recognized that Title VII covers sexual-orientation discrimination, but found that Cheong’s interpretation of comments about people “talking behind his back,” his concern that he might be exposed as gay, and his allegations about a coworker’s conduct did not provide enough factual support for an inference that the bank acted because of his sexual orientation.

The court dismissed Cheong’s national-origin discrimination claim under Title VII. It found that Cheong sufficiently alleged that he was qualified and suffered adverse employment actions, but that his allegations about a history of prejudice against Filipinos and the bank’s preference for people from Hong Kong were largely based on his subjective beliefs. He did not identify specific remarks or other indirect evidence linking the alleged actions to his Filipino national origin.

Federal retaliation claims

The court dismissed Cheong’s retaliation claims under Title VII and the Age Discrimination in Employment Act. Cheong’s complaints to human resources, charge with the Equal Employment Opportunity Commission, and lawsuit were protected activities of which the bank was aware. But the court found that the alleged retaliation—including exclusion from a survey, low performance reviews, interference with his work, failure to promote him, and termination—was not plausibly shown to have occurred because of those activities. The court emphasized that many of the alleged negative employment actions began before Cheong engaged in protected activity, which undermined an inference based on timing alone.

State and city claims

After dismissing the federal claims, the court declined to exercise supplemental jurisdiction over Cheong’s claims under the New York State Human Rights Law and New York City Human Rights Law. Those non-federal claims were dismissed without prejudice.

Disposition

The court granted the bank’s motion to dismiss Cheong’s Second Amended Complaint, directed the Clerk to terminate the motion, and closed the case.