Sex discrimination case is reinstated

Here is a sex discrimination case that applies the general rules guiding motions to dismiss these cases. The Court of Appeals reinstates the lawsuit thanks to the plaintiff's allegations that two superiors told her that the decisionmaker will not hire women for a law enforcement position.

The case is Fay v. Barbera, a summary order issued on June 2. Plaintiff was a part-time officer with the Rockland County Sheriff's Department and wanted a promotion to a full-time patrol officer position. When plaintiff inquired about the promotion, two superiors with in the Sheriff's Department, one of who was married to the defendant Undersheriff Mary Barbera, said that Barbara does not appoint women to patrol officer positions and that plaintiff was "too pretty" for the job. When plaintiff asked Barbera what she had to do to be appointed, Barbera said she was under no obligation to interview plaintiff and that she selected a male candidate who, unlike plaintiff, had been inactive in the unit prior to his appointment as Deputy Sheriff.

This case was dismissed on a Rule 12 motion. The district court said that plaintiff did not plead a plausible sex discrimination claim, but the Court of Appeals (Lee, Merriam, and Kahn) reinstates the case, holding that we can in fact infer that Barbera was the decisionmaker for this position and that the adverse decision was based on sex discrimination because of what the two superiors had said (Barbara does not hire women for patrol officer positions and plaintiff was "too pretty" for the job) and then what Barbara said about appointing the less-qualifed male officer. 

Under Second Circuit precedent, including Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), the plaintiff does not have to plead a prima facie case of employment discrimination, only enough facts to suggest that discrimination was the motive. That is a low bar for plaintiffs. This is not the only case where the Court of Appeals has reversed a Rule 12 dismissal order on facts like this. It will not be the last. What this case tells us, at least as to the "admissions" from the two supervisors, is that the plaintiff can proceed to discovery on allegations that those close to the decisionmaker may be in a position to make comments that bind the employer in a discrimination case.