A woman whose sex/gender discrimination claim rested on the allegation that she was written up for crying approximately five months before her termination was dismissed by a federal court, where she conceded that she was emotional during a meeting but did not allege that the company connected her crying to her gender.

Melissa Anne Dancico worked for MLT Systems in human resources. Her complaint asserted four causes of action: (1) retaliation in violation of Title VII; (2) sex discrimination under Title VII; (3) an interference claim pursuant to the Family Medical Leave Act and (4) a retaliation claim pursuant to the FMLA.

The defendant sought to dismiss the retaliation and sex discrimination claims under Title VII, arguing that plaintiff had not alleged that she engaged in protected activity and that she had alleged no facts in support of her sex discrimination claim.

Most of the plaintiff’s claimed protected activities relate to her informing the defendant of a legal requirement – as required by her position – and then her perception of retaliation after providing that information. But as courts of appeals have recognized, such “job-related policy discussions are not protected.”

This is so because “they do not oppose any discrete practice that [plaintiff] reasonably could have believed discriminated on the basis of race, color, religion, sex, or national origin.”

However, the plaintiff also claimed that she was being retaliated against for attempting to properly investigate a complaint. Implicit in that is an opposition to how defendant was handling a sexual harassment claim. This is enough to plausibly allege that she engaged in a protected activity. Therefore, the motion to dismiss with respect to the retaliation claim is denied.

The plaintiff’s entire gender discrimination claim appears premised on her allegation that she was written up for crying approximately five months before her termination. She argues that this discipline constitutes trafficking in sex-based stereotypes.

The plaintiff is incorrect. Frankly, it is her argument that employs a sex-based stereotype because implicit in her argument is the stereotype that crying or becoming emotional is a female trait. And, here, the plaintiff concedes that she was emotional during the meeting. Moreover, she has not alleged, and it appears from the exhibits to the complaint that she cannot allege, that the defendant connected her crying to her gender.

Absent an allegation that the defendant somehow connected the plaintiff’s crying to her gender, the allegation that she was disciplined for her emotions during a meeting is not sufficient to create a reasonable inference of gender discrimination.

The case is Dancico v. MLT Systems LLC.