Second Circuit reinstates racial discrimination case

The Court of Appeals has reinstated a racial discrimination lawsuit, holding that the plaintiff alleged enough facts in her complaint to plausibly assert that she was denied a promotion and then terminated from her position because of her race.

The case is Brooks v. Bright Horizons, a summary order issued on June 10. I represented the plaintiff on appeal. Keenan & Bhatia handled the case in the district court.

Plaintiff is Black, and her supervisor is white. Plaintiff alleges the white supervisor singled her out for mistreatment, as compared to her white co-workers. When plaintiff put in for a promotion for which she was qualified, someone else was chosen for the position; the selectee was not Black. According to the lawsuit, the selectee was not qualified for the position, as he lacked some of the prerequisites set forth in the job posting. When Plaintiff asked why she did not get the position, her supervisor said that she needed more experience supervising people who are "not like you." In explaining further, the supervisor mentioned an Asian-American director and another employee who is a non-Black Latina. Plaintiff was later fired. That same supervisor orchestrated her termination, claiming that plaintiff did not comply with COVID protocols, even though one of plaintiff's white subordinates who made the decision that broke the protocol was not disciplined. A white woman replaced plaintiff.

The Court of Appeals applies a settled rule in reinstating the failure-to-promote and termination claims: if the promotion is given to someone outside the protected class, and if you are fired and replaced by someone outside the protected class, that's a prima facie case, and if you plead a prima facie case, then the case cannot be dismissed. The Second Circuit more recently articulated this rule in Littlejohn v. City of New York (2015). The Court did not address whether the "not like you" comment carried a racial implication, though the Court did cite that allegation in the statement of facts.

If the cases are settled that plaintiff plead a prima facie case, then why was the case dismissed? Because some district courts, and a few Second Circuit summary orders (which are not precedential) are now holding that replacement by someone outside the protected class is not always enough to make out a prima facie case. No published Second Circuit holds as such. Here is how the Second Circuit (Nardini, Lee and Robinson) handled that issue:

The district court acknowledged our holding in Littlejohn, but relied on a subsequent summary order of this Court to conclude that we had “more recently cautioned that the succession of an employee by a person outside the protected class, standing alone, cannot give rise to a plausible inference of discrimination.” Joint App’x at 102 (citing Marcus v. Leviton Mfg. Co., Inc. 661 F. App’x 29, 32 (2d Cir. 2016) (“Without more, the mere fact that an older employee was replaced by a younger one does not plausibly indicate discriminatory motive.”)). But Marcus did not—indeed could not—undermine what we held in Littlejohn. Procedurally, a summary order is nonbinding, and even a published opinion of a later panel cannot override the published opinion of an earlier panel. In any event, we discern no tension between our two decisions. In Marcus, we were addressing what we described as “skeletal pleading” in a complaint that alleged simply on “information and belief” that the plaintiff had been replaced by a younger employee, without any supporting facts—not even the purported age of the new employee. 661 F. App’x at 32-33. Brooks’ amended complaint is far more detailed and alleges specifics about differential treatment that was accorded to her and a similarly situated employee of Bright Horizons.

What we see is a principle, still unavailable in any published case, that replacement by someone outside the protected class may not be enough to avoid Rule 12 dismissal, but only if there is skeletal pleading that does not otherwise suggest an inference of discrimination. The rule in  Marcus is still the exception. The general rule guiding Iqbal pleading is to write a detailed complaint no matter what. If you've got it, plead it.