The Court of Appeals has provided guidance on how employment discrimination plaintiffs may plead their employers acted with discriminatory intent, remaining us of the low threshold for plaintiffs and holding further that the "same-actor" inference is not enough to dismiss a case under Rule 12. End result: the Court reinstates a lawsuit filed by a school principal in the City of Newburgh, who may now proceed to discovery.
The case is Buon v. Spindler, issued on April 12. This case will be analyzed in two blog posts. The first one addressed adverse employment actions. This one covers how to plead discriminatory intent.
Following the Supreme Court's ruling in Ashcroft v. Iqbal in 2009, we have seen a sharp uptick on motions to dismiss under Rule 12, as Iqbal rewrote the pleading rules, holding that plaintiffs must allege "plausible" and non-conclusory allegations. Prior to Iqbal, plaintiffs only had to satisfy the minimal "notice pleading" standards. In my experience, "plausibility" is not the issue these days. More cases are dismissed because the district court deems the factual allegations "conclusory" and insufficiently detailed. In 2015, the Second Circuit relaxed the pleading burden in Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), and Vega v. Hempstead v. Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), holding that plaintiffs in employment discrimination cases need only allege that, in addition to being qualified for the position and suffering an adverse employment action, they have "minimal support for the proposition that the employer was motivated by discriminatory intent." Plaintiffs' lawyers have cited Littlejohn and Vega millions of times in the last eight years, but the Second Circuit has not provided much guidance on what the "minimal support" standard really means. Until now.
The complaint asserts a series of actions that the school district had taken against plaintiff, a Black women of West Indian descent who was an elementary school principal in the City of Newburgh school district before defendants asked her to assume leadership at SMS, a secondary school in the district. When plaintiff took on that role, defendants subjected her to a series of adverse personnel decisions that, according to plaintiff, her White colleagues did not experience: selective and harsh criticism, denying her support in dealing with a difficult parent, selectively telling plaintiff that her students could not wear Halloween costumes to school, conducting walk-throughs of plaintiff's building without notifying her, falsely telling plaintiff that she could not implement a "Math in the City" course in her school, and holding important meetings without plaintiff. Similar acts of disparate treatment continued into the next school year.
Everything culminated in 2019, when defendants denied plaintiff a transfer to an open RISE position for which she was qualified (and had previously held), giving the position to a less-qualified administrator who was not Black not West Indian. That year, defendants also denied plaintiff an administrative position for the summer school program, a position that plaintiff had previously held but was given to five less-qualified individuals, four of whom were White. Plaintiff was terminated as SMS Principal in May 2019 and transferred back to her old position as elementary school principal even though she had been rated as an effective administrator for the 2018-19 school year. The district court dismissed the case under Rule 12 for failure to state a claim, but the Court of Appeals (Sullivan, Chin and Bianco) reinstates the claim.
How does this case fare under Littlejohn and Vega? The Court of Appeals says plaintiff pleads enough facts to bring this case into discovery. Plaintiff alleges "facts that give rise to a plausible inference of discrimination with respect to the denial of her application to administer the RISE program, the denial of her application to administer the summer-school program, and the termination of her position as SMS principal." The Court adds, "With regard to each of the three positions at issue, Buon alleges that she “was qualified for the position she sought or held and was either denied appointment or replaced by a person of another racial and/or ethnic group who lacked her qualifications.”
As to the RISE program, plaintiff alleges that "although she held the position previously, it was given in January 2019 to an individual who 'was neither African American nor West Indian.'” Plaintiff further alleged "that the individual who secured the position was a less qualified and newly hired administrator who did not hold a school-based job. . . . Similarly, as to the summer-school position, Buon contends that, even though she had participated in the summer program for at least the 'five prior years,' and that she 'was better qualified' for the role, 'defendants Padilla and the district chose much less experienced persons to administrate the district’s summer-school program.'" In addition, “[o]f the five persons chosen [for the position], four were Caucasian, one was Latino, and none were African American or West Indian.”
Plaintiff also "listed a series of instances of disparate treatment in the workplace where she was allegedly subjected to job requirements and to discipline that was different than employees outside her protected class." These actions were as follows:
unlike employees who were not African American or West Indian, Buon was, inter alia: (1) “required to make phone calls to students to inform them they could not wear Halloween costumes”; (2) “required to provide timely responses to meeting invitations”; (3) “not allowed to institute certain programs at her school”; (4) “disciplined for being late”; and (5) subjected to a “negative performance review, disciplinary meetings, and other forms of criticism”).
Although these alleged other instances of disparate treatment may not separately rise to the level of adverse employment actions, Buon is permitted to “[c]reat[e] a mosaic with the bits and pieces of available evidence” that, taken together, support a plausible inference of intentional discrimination with respect to the decisions to deny her application to be the RISE administrator, deny her application to work summer school, and terminate her position as SMS principal.
The Court of Appeals takes apart the district court's reasoning. First, for purposes of pleading a discrimination claim, it does not matter that plaintiff's supervisors had previously treated plaintiff well. This is the "same-actor" inference, which holds that discrimination is less likely when the decisionmaker had previously hired or promoted the plaintiff and is thus less likely to discriminate against that individual. The Court of Appeals notes that it has never applied the same-actor inference to Title VII claims, only to cases brought under the Age Discrimination in Employment Act. But even so, the same-actor inference is more suitable on summary judgment motions, not Rule 12 motions, which afford the plaintiff a more generous pleading burden under Littlejohn. "As a result, we conclude that the inference should not be used to foreclose Title VII and Section 1983 claims at the motion-to-dismiss stage if the plaintiff has otherwise set forth allegations that support a plausible inference of discrimination." This is the first time the Second Circuit has interrupted the same-actor inference this way.
Finally, in dismissing the case, the district court held that plaintiff did not allege enough information to show that she was singled out on the basis of her race or national origin. Alleging that White similarly-situated employees were treated better than the plaintiff is one way to prove disparate treatment. But, here too, the Court of Appeals holds that this issue is more relevant on a summary judgment motion than a motion to dismiss. Citing prior Second Circuit cases on this issue, the Court of Appeals holds:
“Ordinarily, whether two employees are similarly situated presents a question of fact, rather than a legal question to be resolved on a motion to dismiss.” In any event, even apart from any inference of discrimination arising from these other alleged instances of disparate treatment, Buon’s allegations that the individuals who secured each of the three positions at issue were both outside her protected class and less qualified are sufficient for the Title VII claim to survive a motion to dismiss.
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