Railroad employee may proceed with disparate treatment claim against Metro North

The plaintiff in this case was an engineer for Metro North Railroad who was fired after his train collided with another train. At the time, plaintiff was on a "last chance waiver" that Metro North invoked at the time of his termination. Despite that alleged performance problem, plaintiff may sue for racial discrimination on a selective enforcement theory under Title VII.

The case is Davis v. Metro North, a summary order issued on April 3. One way to win your discrimination claim is to show you were disciplined or even fired for an alleged infraction for which a white coworker suffered no discipline. When that happens, you do not have to identify direct evidence of discrimination, such as racial comments or stereotyping. Plaintiff's case proceeds to discovery, and the Rule 12 dismissal is vacated, because a white comparator was not similiarly disciplined.

The complaint alleges that a white employee, who held the same position as plaintiff, also "received a last chance waiver and later was working on a train that collided with a passenger train," yet the railroad authorities did not terminate the white coworker "but instead gave her another last chance waiver." Plaintiff and the coworker were similarly-situated under Title VII because the coworker "was on a last chance waiver before her involvement in a train collision." 

Under the minimal pleading standards in the Second Circuit, most recently outlined in Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023), plaintiff asserts a claim through these allegations. Discovery will focus on why plaintiff and not his white colleague was fired following the train collision. 

Plaintiff also alleges selective enforcement under the equal protection clause. The analysis is a little different from the Title VII disparate treatment claim. The Court of Appeals (Sack, Nardini and Perez) holds that this claim survives the motion to dismiss because the complaint "contains sufficient allegations of irregularities in Defendants' treatment of Davis after the collision that nudge his selective enforcement claim across the line from conceivable to plausible," the pleading test under Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Court writes:

The SAC alleges that (1) Defendants did not provide a pre-investigation meeting or a settlement offer to Davis, in violation of the MNR’s collective bargaining agreement with the union; (2) Defendants indicated prior to the investigation that they intended to terminate Davis for the collision; and (3) Defendants delayed the investigation of Davis. Generously construed, these allegations suggest that Defendants acted with malice towards Davis.