Tuesday, September 8, 2015

2d Circuit provides more guidance on Title VII pleading standards

The Court of Appeals treats this case like a practice treatise, providing more guidance on the pleading standards governing Title VII discrimination/retaliation claims. The Court reinstates the lawsuit.

The case is Vega v. Hempstead Union Free School District, decided on September 2. Plaintiff is a teacher. In 2008 he was given an increased percentage of Spanish-speaking students who were not fluent in English. When he complained about this, plaintiff was given a mixture of bilingual and English classes but not paid for the extra preparation time. He was assigned a classroom with a University of Puerto Rico banner above the door. When plaintiff tried to enter student grades into the computer in 2011, someone had deactivated his password. Then, in 2011 and 2012, the District tried to transfer plaintiff out of the High School. After plaintiff filed an EEOC charge in 2011, he was assigned students who were excessively absent, which causes poor student performance which in turn reflects badly on the teacher's performance. In November 2011, the District changed plaintiff's curriculum for one of his classes, notifying all teachers of this change except for plaintiff. Then, in March 2012, $738 was improperly deducted from plaintiff's paycheck for sick time; he was never fully repaid for this. In February 2013, plaintiff got his first negative performance review, the result of a different evaluation process than his colleagues.

The case was dismissed under Rule 12. The Court of Appeals reinstates it. Here are the holdings:

1. The statute of limitations under Section 1983 is three years. The Court has long held that you can sue for disparate treatment under that statute. which enforces the Equal Protection Clause. While discrete acts prior to October 2010 are time-barred, plaintiff says he was assigned extra work on a discriminatory/retaliatory basis after October 2010. The Court says these were discrete acts that occurred within the limitations period, and the Complaint "suggest[s] an ongoing practice" and his pro se Complaint says defendants are "still committing these acts against me." These claims are timely.

2. The Court clarifies that plaintiffs can bring retaliation claims under Section 1983. In 1996, the Second Circuit said you could not do so. In 2010, the Court said you could, but it did not discuss the 1996 case. The Court now says the 1996 case, Bernheim v. Litt, employed unpersuasive reasoning and that the better argument is that since retaliation entails treating people differently for unlawful reasons, it violates the Equal Protection Clause. Also, since the Court has held that equal protection claims alleging discrimination parallel Title VII claims, "there is no sound reason to deviate from this principle for a retaliation claim, when retaliatory action is taken because a plaintiff complains of or otherwise opposes discrimination." In addition, in 2005, the Supreme Court said in a Title IX case that  retaliation in itself is discrimination. "This reasoning applies with equal force to the employment context. When a supervisor retaliates against an employee because he complained of discrimination, the retaliation constitutes intentional discrimination against him for purposes of the Equal Protection Clause."

3. Clarifying the pleading standards under Title VII in light of the Supreme Court's Iqbal ruling (2009), citing the recent Littlejohn case, the Court says, "a plaintiff is not required to plead a prima facie case under McDonnell Douglas, at least as the test was originally formulated, to defeat a motion to dismiss. Rather, because 'a temporary ʹpresumptionʹ of discriminatory motivation' is created under the first prong of the McDonnell Douglas analysis, a plaintiff ʺneed only give plausible support to a minimal inference of discriminatory motivation.'ʺ The Court adds:

to defeat a motion to dismiss or a motion for judgment on the pleadings in a Title VII discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision. As we have long recognized, the ʺʹultimate issueʹ in an employment discrimination case is whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an ʹimpermissible reason,ʹ i.e., a discriminatory reason.ʺ A plaintiff can meet that burden through direct evidence of intent to discriminate, or by indirectly showing circumstances giving rise to an inference of discrimination. A plaintiff may prove discrimination indirectly either by meeting the requirements of McDonnell Douglas and showing that the employerʹs stated reason for its employment action was pretext to coverup discrimination, or by otherwise creating a ʺmosaicʺ of intentional discrimination by identifying ʺbits and pieces of evidenceʺ that together give rise to an inference of discrimination. At the pleadings stage, then, a plaintiff must allege that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.
Note the "mosaic" theory of pleading discrimination. That derives from Gallagher v. Delaney, a Second Circuit case from 1998. The Second Circuit has never previously used that language in any discrimination case since that time. What is a "mosaic" of discrimination? I don't know, but the "mosaic" theory creates an opening for plaintiffs to plead their cases when they do not have overwhelming evidence of discrimination.

Plaintiff has a plausible discrimination claim under these standards because the District assigned him classes with more Spanish-speaking students and therefore gave him a disproportionate workload. This was an adverse action because plaintiff had more work on his plate without additional compensation. The other allegations, by themselves, are not enough to state a claim on their own, "but they help create context for his discrimination claim." We can infer this all happened because of plaintiff's ethnicity because "he was assigned a large percentage of Spanish‐speaking students because he is Hispanic and bilingual, while his similarly‐situated co‐workers were not assigned additional work. Vegaʹs other allegations of discrimination, even if they do not independently constitute adverse employment actions, provide 'relevant background evidence' by shedding light on Defendantʹs motivation and thus bolster his claim that Defendants treated him differently because of his ethnicity."

4. As for the retaliation claims, here are the pleading standards:

For a retaliation claim to survive a motion for judgment on the pleadings or a motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated ‐‐ or took an adverse employment action ‐‐ against him, (2) "because" he has opposed any unlawful employment practice.


As for causation, a plaintiff must plausibly plead a connection between the act and his engagement in protected activity. A retaliatory purpose can be shown indirectly by timing: protected activity followed closely in time by adverse employment action. Unlike Title VII discrimination claims, however, for an adverse retaliatory action to be ʺbecauseʺ a plaintiff made a charge, the plaintiff must plausibly allege that the retaliation was a ʺbut‐forʺ cause of the employerʹs adverse action. It is not enough that retaliation was a ʺsubstantialʺ or ʺmotivatingʺ factor in the employerʹs decision. See id. ʺʹ[B]ut‐forʹ causation does not[, however,] require proof that retaliation was the only cause of the employerʹs action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.ʺ Further, ʺthe but‐for causation standard does not alter the plaintiffʹs ability to demonstrate causation . . . through temporal proximity.ʺ
Plaintiff meets these standards. "We conclude that Vega has adequately pleaded retaliation claims under Title VII based on his assignment of notoriously absent students, his temporary paycheck reduction, and the Districtʹs failure to notify him of a curriculum change, and under Title VII and § 1983 based on his negative performance review." After plaintiff filed the EEOC charge in August 2011, the District gave him an excessive amount of students with absentee problems, temporarily reduced his salary, changed his curriculum without prior notice and gave him a bad performance review. Not only did these actions closely follow the filing of plaintiff's EEOC charge, each "could well dissuade a reasonable worker from making or supporting a charge of discrimination."

The assignment of a substantially higher number of chronically absent students could very well have adversely impacted Vega, both by making his teaching assignments more difficult and by making it more difficult for him to achieve good results. Likewise, the wrongful deduction of $738.92 from his paycheck for sick leave, the failure of the District to correct the error in full, and the failure of the District to correct the error even in part for six months surely could have had an adverse impact on Vega. Similarly, failing to notify Vega of a curriculum change could have adversely affected him by, for example, making him appear unprepared or ineffective both to his students and for his up‐coming teacher evaluation, as he would have been preparing for and teaching the wrong curriculum. Viewed in the context of his other allegations, it was plausible that the Districtʹs failure to notify Vega of the curriculum change was part of their pattern of discrimination and retaliation designed to make Vega look bad. Finally, of course, a poor performance evaluation could very well deter a reasonable worker from complaining.

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