Thursday, August 18, 2011

Court reinstates racial discrimination lawsuit

The Second Circuit has reinstated a lawsuit alleging that the plaintiff was discriminated against because she is white. This case reminds us that it does not take much to survive a motion to dismiss employment discrimination cases.

The case is Schwab v. Smalls, a summary order decided on July 27. The district court threw out the case after over-analyzing it under the McDonnell-Douglas standard. But the McDonnell-Douglas test is an evidentiary standard, not a pleading requirement. The Supreme Court said that in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), which relaxed pleading standards in employment cases. The Court of Appeals (Jacobs, Calabresi and Sack) notes that "questions have been raised" as to whether more recent Supreme Court pleading cases, like Ashcroft v. Iqbal, 129 S.Ct. 1939 (2009), which impose a plausibility test in reviewing complaints, have undercut Swierkiewicz's vitality.

The Court of Appeals sidesteps this scintillating debate. It says that whatever the legal standards are, Schwab has plead a legitimate employment discrimination claim. Here's why:

The plaintiff's complaint alleges that (1) she is white and Smalls and Chakar are African-American and "Arab-Lebanese," respectively; (2) she held her position without incident for many years; and (3) her employment was terminated after Smalls refused to recommend her reappointment; and (4) the circumstances of her termination are suggestive of discrimination.

With regard to the fourth point -- the final element of a prima facie case of discrimination under McDonnell Douglas and the only element that the defendants contest for the purposes of this appeal -- the complaint provides the approximate date and substance of the defendants' meeting at which they agreed to their "plan"; alleges that their aim was to force Schwab out of her position so that they could appoint a less qualified African-American woman in her place; and details the allegedly pretextual requests for data that Schwab had never been asked or required to maintain. We think this satisfies Schwab's burden at this early stage of the litigation under either of the two arguably applicable pleading standards.

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