Racial discrimination claim is reinstated on appeal, providing guidance on avoiding Rule 12(b)(6) dismissals

The Court of Appeals holds that a race discrimination plaintiff has set forth enough allegations to proceed to discovery, overturning the trial court's finding that the complaint was not good enough to survive a Rule 12 motion to dismiss. The Court of Appeals makes some interesting observations about pleading discrimination cases, and if you represent plaintiffs in these disputes, then keep reading.

The case is Brown v. Montefiore Health System, a summary order issued on October 23. Prior to her termination from the hospital, plaintiff worked there for more than 20 years as a dietician. She claims her white supervisor, Pappo, was the discriminator. As summarized by the Second Circuit (Bianco, Wesley and Robinson), here are the primary allegations:

(1) Brown was the only Black employee in MMC’s Clinical Nutrition Department,  (2) Pappo, since being placed in her role as Director of the Department, has hired only one other Black employee, despite numerous hires over the years, (3) Pappo was enthusiastic about that employee’s qualifications upon reviewing her written application materials, but after the applicant arrived for her interview—thus revealing her race—Pappo instead opted to hire a less qualified white male, (4) Pappo subsequently hired that Black applicant for a subordinate position as a “relief” dietician only after receiving pressure from staff, (5) another Black former employee, who was terminated in 2019 and replaced by a white employee, also complained of discrimination by Pappo, including that Pappo “pressured, intimidated, and discriminated against her, failed to properly train her, and openly mocked and scolded her in front of other  employees[,]” which, according to Brown, was the “exact same treatment [she] was subjected to at the hands of [Pappo],” and (6) Brown heard Pappo “disparag[e] communities which have [] largely Black demographic[s] in favor of those with largely white demographic[s].”

All of this asserts a pattern of racial hostility by Pappo, both against plaintiff and against other Black employees. No explicit racial epithets here, but, taking the allegations in the complaint as true, it appears Pappo did not want Black employees working for her. But there is more. Plaintiff alleges that:

Pappo, motivated by this racial animus, engaged in a campaign of harassment to prompt Brown’s termination, including refusing to allow Brown to cover a particular colleague’s work shifts and offering those shifts to white dieticians, refusing to provide Brown with the proper ergonomic workstation to accommodate her medical needs resulting from a work-related injury, initially denying her the opportunity to serve as a preceptor for New York University oncology interns while all other dieticians in the department (who were white) served in that role, and submitting false information regarding Brown’s workers’ compensation case "in hopes that [Brown] would be terminated or resign."

Taken as a whole, these allegations permit the plausible inference that plaintiff was fired because of her race. Again, no racial epithets, but a pattern of mistreatment visited upon plaintiff and other Black employees. The case will proceed to discovery.

This holding may not seem remarkable, but it is. Many cases are dismissed under Rule 12(b)(6) because, no matter how badly the plaintiff was treated, the trial court does not think the allegations permit an inference of racial or sex discrimination. These rulings are often reversed on appeal through summary orders, but not always. Judges are required, under Iqbal, to use their common experience in issuing these rulings, but they often do not see what Black employees, and others protected under Title VII, see: at some point, a pattern of bad treatment may prove intentional discrimination.

In reaching this holding, the Court of Appeals applies the following legal principles relevant to discrimination claims. They all stem from Second Circuit case law, and they may be relevant to your case:

1. Claims under the New York State Human Rights Law are analyzed under New York City HRL standards. The Second Circuit has been saying this for about a year now, but in this case the Court says so without even citing cases in support of that proposition. The NYSHRL does not expressly call for that statutory construction, at least in the context of aligning the state law with the city law, but the state law does say it should be broadly interpreted. The only place to look in fulfilling that objective would be the NYCHRL.

2.  “[e]vidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer’s offered explanation for an employment decision regarding a particular individual masks a discriminatory motive.” Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990).

3. "with respect to a hostile work environment claim, we have emphasized that, 'because the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim.'” The case for that proposition is Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000), a case I argued 25 years ago. The Court of Appeals holds that Brown does have a viable hostile work environment case, which I will discuss in a future blog post. 

4. “an inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to: . . . the sequence of events leading to the plaintiff’s discharge.” That's from Liebowitz v. Cornell Univ., 584 F.3d 487 (2d Cir. 2009). That is something of a catch-all proposition, but a suspicious sequence of events may support an inference of discrimination. I saw this principle surface frequently in the 1990s but not so much lately. But this is still good law.

5. "even if alleged 'instances of disparate treatment may not separately rise to the level of adverse employment actions, [a plaintiff] is permitted to create a mosaic with the bits and pieces of available evidence that, taken together, support a plausible inference of intentional discrimination.'” The cite for that is Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023). The "mosaic" language is relatively new, but it's another "totality of the circumstances" doctrine that plaintiffs will use when there are no racial epithets or other race-specific allegations, but instead a series of adverse personnel actions that in their totality altered the work environment for the worse.

6. “Actions taken by an employer that disadvantage an employee for no logical reason constitute strong evidence of an intent to discriminate.” That derives from Stratton v. Dept. of the Aging, 132 F.3d 869 (2d Cir. 1997). I want to talk about this at some length. Stratton was decided nearly 30 years ago, written by then-district judge Denny Chin before he was elevated to the Second Circuit. I recall seeing that footnote at the time and using that language to avoid Rule 12 and summary judgment dismissals. That strategy did not always work, but I don't know why; maybe it's because that language appears in a footnote in Stratton. Maybe judges think that language will allow any case involving bad workplace decisionmaking to reach trial, thereby undermining the employment at-will principle and the doctrine that courts are not "super-personnel" departments, unable to right every injustice in the workplace. Jurors may draw the inference set out in the Stratton footnote, but maybe judges were looking for more evidence than simply inexplicably bad treatment. Excluding the Stratton case itself, where it originated, as well as this case, that principle, so useful to plaintiffs in Title VII cases, has been cited exactly 8 times. It has only been cited by the Second Circuit once previously, in May 2025, in Flanagan v. Girl Scouts of Suffolk County, a summary order reported at 2025 WL 1501751 (May 27, 2025), which reinstated a race discrimination case. (I argued Flanagan and cited Stratton in the reply brief). While this language surfaced from time to time in district court rulings, it has been dormant in the Court of Appeals until this year. Two of the judges on the Flanagan panel sat on Brown's case (Wesley and Bianco), so they must have remembered this language from Flanagan.

This case is a summary order, so its precedential value is limited. But you can still cite summary orders provided you note in your brief that the case is a summary order. Even so, the principles above derive from precedential rulings, which remain good law until the Supreme Court says otherwise.