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Since it has been a while since our employment discrimination lawyers have blogged about pregnancy discrimination, I have been on the lookout for a good case to use as a topic. Today, I came across the recently decided Biehner v. City of New York, No. 21-2922, 2023 WL 3486237 (2d Cir. May 17, 2023). Unfortunately, this is not a good pregnancy discrimination case.

The plaintiff, Brittney Biehner was a probationary special education teacher employed by the City of New York and the New York City Department of Education (“DOE”). During her probationary period, Biehner used a policy of taking a personal item from one of her special education students when they borrowed an item to ensure such students would remember to give it back. In one such incident in 2013, she made a special education student give her a shoe to borrow a folder. There was a dispute over whether Biehner physically and forcibly removed the shoe for the student (who makes a special education student walk around with one shoe anyway?); and the school investigated her for corporal punishment of a child.

Before the investigation was concluded, Biehner went on maternity leave and did not return to work for six years as a result of a car accident related disability and another maternity leave. In April 2020, Biehner submitted her request to return from her leave of absence to the DOE, which assured her that she would be placed on the payroll after her leave ended. After some additional communication, on September 1, 2020, the principal told Biehner that there was a strong possibility she would be excessed. Excessing refers to the process of removing less senior teachers from a school’s organization and assigning them to the Absent Teacher Reserve or another school. Excessed teachers maintain their employment with the DOE along with their salary and benefits.

At some point during this process, Biehner requested and reviewed her personnel file; and claims that she learned for the first time that the charge of corporal punishment had been sustained and put on her record. No disciplinary actions were taken as a result of this finding, however.

Instead of returning, Biehner resigned. She then sued for pregnancy discrimination, gender discrimination, and wrongful termination.

How do you state a claim for pregnancy discrimination?

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate on the basis of  an employee’s “race, color, religion, sex, or national origin,” and to retaliate against an employee on account of an employee’s having opposed, complained of, or sought remedies for, unlawful workplace discrimination, 42 U.S.C. § 2000e-2(a), 3(a). As clarified by the Pregnancy Discrimination Act of 1978 (“PDA”), Title VII’s ban against gender discrimination includes a prohibition against pregnancy discrimination.

To establish a prima facie case of gender or pregnancy discrimination under Title VII, an employee must present evidence that: (1) she is a member of a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action, and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

In the court below, the United States District Court for the Southern District of New York went out of its way to list every single reason that this claim lacked merit:

the plaintiff has not pleaded that she suffered an adverse employment action, and this is fatal to both her discrimination and retaliation claims. The plaintiff does not claim that she was fired, demoted, or suspended. Cf. Sanders v. N.Y.C. Hum. Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (noting that examples of adverse employment actions include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation”). Instead, she points to her “involuntary” resignation or excessing as proof of her alleged discrimination or retaliation. But the plaintiff’s resignation cannot serve as an adverse employment action because she does not allege that she resigned out of duress or coercion. See Cadet v. Deutsche Bank Sec. Inc., No. 11-cv-7964, 2013 WL 3090690, at *11 (S.D.N.Y. June 18, 2013). Moreover, being excessed, “standing alone, does not constitute an adverse action for purposes of a discrimination or retaliation claim.” See Silva-Markus v. N.Y.C. Dep’t of Educ., No. 19-cv-4335, 2020 WL 5819555, at *8 (S.D.N.Y. Sept. 30, 2020) (collecting cases). And the facts surrounding her excessing are insufficient to elevate that event into an adverse employment action. Cf. id. (noting that experiencing a reduction in salary or benefits, combined with excessing, may constitute an adverse employment action).

In any event, the plaintiff has not pleaded adequately the other elements required for her gender discrimination and retaliation claims. Her gender discrimination claim is foreclosed because… the plaintiff’s complaint is devoid of any facts that give rise to the suggestion that the DOE decisionmakers were motivated by gender discrimination, including pregnancy discrimination, in their interactions with her. The plaintiff makes no allegations about sexist criticisms or comments, and fails to allege that those outside of her protected class were treated differently from her. Cf. Salas v. N.Y.C. Dep’t of Investigation, 298 F. Supp. 3d 676, 687 (S.D.N.Y. 2018) (“An inference of discrimination can be drawn from circumstances including ‘actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus,’ or ‘preferential treatment given to employees outside the protected class[.]’ ” (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996))). The plaintiff also does not claim that she was replaced by a non-pregnant or male employee. … Moreover, because she does not even indicate when she was pregnant, the plaintiff has not pleaded anything suspicious about the temporal proximity between her pregnancy and her being excessed and later resigning. See Rinsler v. Sony Pictures Ent., Inc., No. 02-cv-4096, 2003 WL 22015434, at *6 (S.D.N.Y. Aug. 25, 2003). Accordingly, even accepting as true the plaintiff’s claim that the defendants acted intentionally in bungling her return from maternity leave, there is nothing to support the plaintiff’s allegations that the defendants were motivated by her gender in so acting. The plaintiff has therefore failed to raise a minimal inference of gender discrimination, and her claim must be dismissed.

Biehner v. City of New York, No. 19-CV-9646 (JGK), 2021 WL 4924838, at *4–5 (S.D.N.Y. Oct. 20, 2021), reconsideration denied, No. 19-CV-9646 (JGK), 2021 WL 5827536 (S.D.N.Y. Dec. 7, 2021).

Now, the positive takeaway from this decision is that the District Court essentially provided a list of several ways that an employee asserting a pregnancy discrimination claim could have presented evidence to support such a claim.

Given that Biehner had none of this evidence at all, she did exactly what one would expect in response to the District Court’s dismissal of her claims – she appealed. Unsurprisingly, she met the same fate on appeal when the United States Court of Appeals for the Second Circuit essentially and minimally held that: “we agree with the District Court that each of her federal and state law claims should be dismissed on the merits substantially for the reasons set forth in the District Court’s thorough orders. Biehner, 2023 WL 3486237 at *1.

Biehner did not get good legal advice when she brought the claim. Biehner did not get good legal advice when she asked the District Court to reconsider. And she certainly did not get good legal advice when she paid to appeal the case to the Second Circuit Court of Appeals. Of course, maybe she got good legal advice and chose to ignore it. No matter, she spent over three and a half years litigating a case that she could not win.

Best Pregancy Discrimination Lawyer Blogs on Point:

How do I get good legal advice regarding my potential pregnancy and gender discrimination claims?

Getting good legal advice is critical to deciding if to pursue claims; whether to timely settle those claims; and how far to pursue them. Do guess on your own or seek legal advice about employment discrimination or wrongful termination from lawyers who are not employment law attorneys. It akin to not asking a neurologist about heart conditions. So, if you have been wrongfully fired or discriminated against because you are pregnant, your best option is to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

Best Employee’s Rights Law Firm Blogs on Point:


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