Schashuna Whyte was appointed as a New York State Trooper in October 2016. She learned that she was pregnant about one year later but was initially reluctant to notify her command staff due to what she perceived as the “cultural lack of respect shown to female employees.” She revealed her pregnancy after three months and obtained a modified duty assignment. On at least one occasion, Sergeant Matthew Dolen commented that Whyte should either be at home or on patrol in front of Whyte and another trooper. Whyte was also informed by other troopers that Dolen made mean-spirited comments about her behind her back. Whyte reported this conduct to two other sergeants, who commiserated with her but did not make any further reports.
After giving birth, Whyte returned to work in February 2019. She later alleged that upon her return, her superiors failed to inform her of her legal right to pump breast milk in a private area without retaliation. As a result, she pumped milk in storage rooms, police vehicles, and private bathrooms, which were uncomfortable and unsanitary. She then had to place expressed milk in portable lunch bags with ice and store them in her police vehicle as the State failed to provide a storage location.
In October 2020, Whyte learned that she was pregnant again, and that her pregnancy was high-risk. She obtained a transfer to a station ten minutes from her home, which was later rescinded pending an internal investigation. In the interim, Whyte was assigned to a COVID-19 testing site where she received few breaks and was required to wear her existing uniform and duty belt despite them no longer fitting. Investigator Michael Ramirez, who was assigned to examine Whyte’s request, questioned the veracity of her high-risk pregnancy monitoring plan, asked for more medical details, and posed questions to members of her family. Whyte alleged that she never received a decision about her request for a modified assignment. She was required to commute three to four hours daily rather than ten minutes to the station she requested.
Whyte sued the New York State Patrol (NYSP) and many of its employees on behalf of herself and a putative class of nursing mothers for several violations of Title VII, section 1983, and the New York City Human Rights Law (NYCHRL). Among other things, Whyte claimed that NYSP discriminated against her on the basis of her pregnancy and created a hostile work environment. The NYSP moved to dismiss her complaint.
The Court granted NYSP’s request to dismiss Whyte’s retaliation claim based on NYSP’s failure to provide her with adequate accommodations to pump milk, finding that she “did not allege that she requested and was denied a proper room to express or store her breast milk. Nor did she plead any facts showing that she was treated differently on the basis of her pregnancy.” The Court also denied her claim based on the rescission of her transfer, finding that it did not constitute an “adverse employment action” for the purposes of Title VII. The Court agreed that NYSP was entitled to rescind the transfer pending an internal investigation, including an evaluation by an NYSP doctor. However, the Court found that Whyte did adequately allege pregnancy-based retaliation based on her assignment which added several hours to her daily commute. This “undoubtedly ‘makes a normal life difficult’ for an employee so as to constitute an adverse employment action under Title VII.”
The Court next granted NYSP’s request to dismiss Whyte’s claims of hostile work environment under Title VII and section 1983. To state a hostile work environment claim under Title VII, an employee must establish that “her workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” In this case, Whyte supported this claim by (1) the investigator’s rude questioning of her high-risk pregnancy to herself and her family; (2) the rescission of her requested transfer; and (3) Dolen’s remark in 2017. The Court found that taken together, “these acts are not sufficiently continuous and concerted in order to be deemed pervasive, nor were they frequent enough to create a hostile work environment.” The Court found that these facts did support an allegation of hostile work environment under the NYCHRL, which was designed to be more protective than Title VII and section 1983.
Whyte v. New York State Police, 22-CV-05633 (NGG) (CLP), 2023 WL 7413087 (E.D.N.Y. 2023).