Friday, August 7, 2015

2d Circuit outlines Iqbal pleading under Title VII

The Court of Appeals tackles how Iqbal pleading standards govern Title VII discrimination/retaliation complaints in this lengthy opinion that finds the plaintiff has for the most part pleaded a cause of action.

The case is Littlejohn v. City of New York, decided on August 3. In Ashcroft v. Iqbal (2009), the Supreme Court said that lawsuits must plead plausible and not merely possible claims. The Court also said you cannot make conclusory allegations in drafting the complaint. But this was not the first time the Supreme Court had issued pleading rules in discrimination cases. In Swierkiewicz v. Sorema N.A. (2002), the Court said there is no heightened pleading standard in employment discrimination cases. And when it comes to pleading, the Court of Appeals says, we cannot forget the Supreme Court's McDonnell-Douglas v. Green (1973), which laid out the prima facie case that plaintiffs must establish in order to proceed with their lawsuits. Under McDonnell-Douglas, plaintiffs have a minimal burden in making out a prima facie case; after the employer rebuts the presumption of discrimination by articulating a neutral reason why the plaintiff got fired/demoted, etc., plaintiff most show that reason is pretext for discrimination.

As the Second Circuit sees it, the McDonnell-Douglas rules governing the prima facie case have to be reconciled with Iqbal. If McDonnell-Douglas says plaintiffs have a minimal burden in making out the prima face case, then what about Iqbal, which says the plaintiff set forth a plausible and nonconclusory case? And we have to deal with Swierkiewicz also, which rejects heightened pleading rules under Title VII. Here is how the Second Circuit (Droney, Leval and Lynch) handles it:

It is uncertain how the Supreme Court will apply Iqbal's requirement of facts sufficient to support plausibility  to Title VII complaints falling under the McDonnell Douglas framework. We conclude that Iqbal's requirement applies to Title VII complaints of employment discrimination, but does not affect the benefit to plaintiffs pronounced in the McDonnell Douglas quartet. To the same extent that the McDonnell Douglas temporary presumption reduces the facts a plaintiff would need to show to defeat a motion for summary judgment prior to the defendant's furnishing of a non-discriminatory motivation, that presumption also reduces the facts needed to be pleaded under Iqbal.

The Iqbal requirement is for facts supporting "plausibility." The Supreme Court explained that "[t]he plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." The question we face is what, in the Title VII context, must be plausibly supported by factual allegations when the plaintiff does not have direct evidence of discriminatory intent at the outset. Answering this question requires attention to the shifting content of the prima facie requirements in a Title VII employment discrimination suit. Recapitulating what we have spelled out above, while the plaintiff ultimately will need evidence sufficient to prove discriminatory motivation on the part of the employer-defendant, at the initial stage of the litigation—prior to the employer's coming forward with the claimed reason for its action—the plaintiff does not need substantial evidence of discriminatory intent. If she makes a showing (1) that she is a member of a protected class, (2) that she was qualified for the position she sought, (3) that she suffered an adverse employment action, and (4) can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation, then she has satisfied the prima facie requirements and a presumption of discriminatory intent arises in her favor, at which point the burden of production shifts to the employer, requiring that the employer furnish evidence of reasons for the adverse action. At this stage, a plaintiff seeking to defeat a defendant's motion for summary judgment would not need evidence sufficient to sustain her ultimate burden of showing discriminatory motivation, but could get by with the benefit of the presumption if she has shown evidence of the factors entitling her to the presumption.

. . .

In other words, absent direct evidence of discrimination, what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent. The facts alleged must give plausible support to the reduced requirements that arise under McDonnell Douglas in the initial phase of a Title VII litigation. The facts required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation.
How does this all affect Littlejohn? Her complaint alleges a prima facie case of employment discrimination because it permits the inference that she was demoted under circumstances creating an inference of discrimination, one of the four elements of the McDonnell-Douglas prima facie case (the other three being that she belongs to a protected class, was qualified for her position and suffered an adverse action). The Court says:

Littlejohn alleges that she was replaced by a white ACS employee, Fredda Monn, after she was demoted from EEO Director. Littlejohn also alleges that Monn was less qualified for the position. According to Littlejohn's complaint, Monn had "no prior EEO experience," as she "was previously the Director of the Accountability/Review Unit that had nothing to do with EEO matters" but rather "involved the comprehensive review of child welfare case practices." Littlejohn's factual allegations are more than sufficient to make plausible her claim that her demotion occurred under circumstances giving rise to an inference of discrimination. Accordingly, we hold that Littlejohn's complaint alleges sufficient facts to satisfy the requirements of Iqbal.
Littlejohn also makes out a retaliation claim. The Second Circuit holds that its new standard governing the pleading of Title VII disparate treatment cases also applies in retaliation cases. Good news for Littlejohn. Along the way, in order to decide if plaintiff engaged in protected activity, the Circuit addresses a new issue: when is an HR manager protected under Title VII for reporting discriminatory practices? The Court says:

 To the extent an employee is required as part of her job duties to report or investigate other employees' complaints of discrimination, such reporting or investigating by itself is not a protected activity under § 704(a)'s opposition clause, because merely to convey others' complaints of discrimination is not to oppose practices made unlawful by Title VII. But if an employee—even one whose job responsibilities involve investigating complaints of discrimination—actively "support[s]" other employees in asserting their Title VII rights or personally "complain[s]" or is "critical" about the "discriminatory employment practices" of her employer, that employee has engaged in a protected activity under § 704(a)'s opposition clause.
Since Littlejohn did not merely investigate or report others' complaints of discrimination but instead objected and complained to defendants about their discriminatory policies, effectively advocating for minority employees, she did engage in protected activity. "Littlejohn was not simply conveying others' complaints of discrimination to Mattingly and Baker or alerting them to Title VII's mandates; she was complaining about what she believed was unlawful discrimination in the personnel decision-making process during the ACS/DJJ merger. Her complaints of discrimination were protected activities under § 704(a)'s opposition clause."

Littlejohn also pleads a causal connection, or a link, between her protected activity and her demotion. She alleged that she objected to the discrimination through the day of her demotion. The district court misread the complaint in holding otherwise. Since she was demoted within days of her last complaint, Littlejohn makes out a prima facie case of retaliation under Title VII and Iqbal.

However, Littlejohn does not have a non-sexual harassment hostile work environment claim. While she alleges management treated her poorly at work, this poor treatment was not severe or pervasive enough.

Littlejohn's hostile work environment claim is predicated on the following allegations18: Baker made negative statements about Littlejohn to Mattingly; Baker was impatient and used harsh tones with Littlejohn; Baker distanced herself from Littlejohn when she was nearby; Baker declined to meet with Littlejohn; Baker required Littlejohn to recreate reasonable accommodation logs; Baker replaced Littlejohn at meetings; Baker wrongfully reprimanded Littlejohn; and Baker increased Littlejohn's reporting schedule. Baker also sarcastically told Littlejohn "you feel like you are being left out," and that Littlejohn did not "understand the culture" at ACS. These allegations could not support a finding of hostile work environment that is so severe or pervasive as to have altered the conditions of Littlejohn's employment.
Finally, while she alleges various sexual comments at work, since plaintiff did not check the right box in her EEOC charge, Littljohn cannot proceed with her sexual harassment claim. While plaintiff points to an unsworn letter to the EEOC that made reference to the sexual harassment, this was an additional claim of discrimination unrelated to the claims that she did set forth in the EEOC charge. As the letter did not clarify or amplify her existing claim, plaintiff did not preserve her right to bring that claim to federal court.

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