Student discrimination case is dismissed

When you file a lawsuit, all things are possible. Some plaintiffs feel like the lawsuit will start the healing process. Some even take solace in knowing their enemies will soon be served with legal process. The lawyer tries to tell his client that lawsuits are not all fun and games, and that the defendant's lawyer will get to take a seven-hour deposition and explore the plaintiff's work record and even his medical records. Then comes the post-discovery motion practice, which will delay the trial for a year. Of course, this assumes the case will make it out of the gate. Some cases do not.

The case is Johnson v. New York University, a summary order issued on January 31. Clients think they will have their "day in court," but your day in court is really the day you file the lawsuit. A trial is not guaranteed. Neither is pre-trial discovery. If the trial court thinks the case does not state a plausible claim, then the case will be dismissed at the outset, and the fun stops.

In this case, plaintiff alleged that NYU discriminated against him on the basis of gender in violation of Title IX of the Civil Rights Act. As the Second Circuit (Hall, Bianco and Sullivan) summarizes his claims, "Johnson alleged that NYU discriminated against him based on his race and gender when they expelled him in 2007 after he was criminally charged with (but acquitted of) grand larceny, and then refused to readmit him in 2017." The Court says the 2007 claim is untimely, as it falls outside the three-year statute of limitations. Focusing on the 2017 claim, the Court says the complaint does not assert a claim for racial discrimination. Plaintiff argues that NYU disciplined three white students differently after they were accused (or convicted) of crimes. Plaintiff's instincts were correct. You can assert a discrimination case if others were more favorably treated. That permits you to argue the unfair treatment was racially-motivated.

But the rules guiding motions to dismiss require the plaintiff to assert specific facts in support of his claim. Conclusory allegations will not survive a motion to dismiss. The Supreme Court said this in Ashcroft v. Iqbal, its seminal 2009 decision that changed how the lower courts handle motions to dismiss under Rule 12. The plaintiff must also show the favored comparators had similar facts. "While  a  plaintiff  may  'raise[]  an  inference  of  discrimination  by showing that he was subjected to disparate treatment' in comparison to others, the comparators must be 'similarly situated' to the plaintiff 'in all material respects.'”

This is a difficult standard. Plaintiff loses. "We agree with the district court that the white comparators Johnson cited did not meet this standard since none of the comparators had sought (let alone been granted) readmission after being expelled. It is true that comparators need not be identical, but there must be at least a 'reasonably close resemblance of the facts and circumstances,' which was not the case here."