Yes and no on various employment discrimination claims

The second Rule 12 employment discrimination reversal in a week reinstates a lawsuit against the Roman Catholic Archdiocese, which allegedly fired a 67 year old employee because of his age. But the other discrimination claims in this case are dismissed.

The case is Franchino v. Terence Cardinal Cook Health Care Center, issued on June 2. The lawsuit claims defendant's relatively youthful management replaced plaintiff with a "much younger" employee after he was subjected to derogatory age-based cartoons, comments, emails and jokes in the workplace. Plaintiff says that management joined in these ageist insults. And, when plaintiff was falsely accused of misconduct, he was denied his procedural rights that were routinely granted to younger employees.

Under recent Second Circuit cases that clarify the minimal pleading burden for plaintiffs, including Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), these allegations are enough to open the door for discovery on plaintiff's age discrimination case. But plaintiff's national origin and sex discrimination claims do not fare as well. So this case is useful not only to see what gets the plaintiff past a Rule 12 motion but how a complaint fails to satisfy the Littlejohn test.

On the national origin and sex discrimination claims, plaintiff says that a supervisor wanted a co-worker, Mercado, disciplined or terminated, but human resources officials supported Mercado. Plaintiff also alleges that, in an effort to save her job, Mercado falsely accused plaintiff of sexually harassing a female employee. According to plaintiff, "superiors treated Mercado more favorably because she was a 'much younger Hispanic woman.'” With respect to the sex discrimination claim in particular, plaintiff alleges that he was replaced by a female employee. Despite the lenient standards under Littlejohn, these allegations are not enough to avoid a Rule 12 dismissal on the national origin and sex discrimination claims. Rather, "on the facts alleged, Mercado was concerned that she may lose her job, so she acted vindictively toward Franchino—not because of his membership in any protected classes, but because she perceived him as threatening her continued employment."