United States: Second Circuit Clarifies Pleading Standard In Title VII Cases

In a case of first impression, the Second Circuit Court of Appeals explained for the first time how district courts are to harmonize recent Supreme Court precedent requiring that claims be "plausible" with the well-known McDonnell Douglas test typically used to assess claims of discrimination. In doing so, the court confirmed that the plausibility standard does apply to claims of discrimination, while at the same time stating that, at the pleading stage, a plaintiff's burden is limited to plausibly alleging a "minimal inference of discrimination." The court also clarified how the "protected activity" element of a retaliation claim is assessed when the plaintiff is a human resources professional acting within the scope of her duties.

Applying the Plausibility Standard to Discrimination Claims

The plaintiff in Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), an African-American woman, worked at the New York City Administration for Children's Services ("ACS") as the Director of its Equal Employment Opportunity ("EEO") Office. ACS and the City's Department of Juvenile Justice ("DJJ") merged, and as a result numerous employees from DJJ were slated to be laid off, demoted, reassigned or terminated. Littlejohn worked within the integration process and alleges that she complained that supervisors showed preferential treatment to white DJJ employees over African-American and Latino DJJ employees during the merger, in violation of anti-discrimination policies and procedures. Littlejohn alleged that as a result of her complaints regarding the treatment of minority employees during the merger, she was involuntarily transferred and allegedly demoted to an administrative staff analyst position in the Office of Personnel Services, and that her transfer and demotion were in retaliation for her complaints. The District Court dismissed the entire case, holding that Littlejohn had failed to adequately plead her hostile work environment, disparate treatment, and retaliation claims.

The Second Circuit reversed the dismissal of several of these claims and, in doing so, clarified the pleading standards required for Title VII employment discrimination cases. Specifically, the court addressed the intersection of the McDonnell Douglas quartet of cases (which specifically address standards used in employment discrimination cases) and the United States Supreme Court's 2007 and 2009 decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which address more general pleadings standards.

McDonnell Douglas and its brethren delineated a relaxed pleading requirement for employment discrimination claims. The Supreme Court has characterized the burden on plaintiffs during the initial phase of litigation "as 'not onerous' and as 'minimal.'"

In Twombly, the Supreme Court held that the pleadings "must include 'enough factual matter (taken as true) to suggest [plausibly] that an agreement was made.'" Iqbal similarly made clear that plausibility was the touchstone of the analysis, holding that "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."

In looking at the "interplay" of these two separate lines of cases, the Second Circuit concluded that "Iqbal's requirement applies to Title VII complaints . . . but does not affect the benefit to plaintiffs pronounced in the McDonnell Douglas quartet." Iqbal requires facts supporting plausibility, but the Second Circuit explained that "the plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."

This standard is applicable to only the initial assessment of whether the plaintiff has pleaded a prima facie case:

The facts required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation.

The court held that Littlejohn's claims met this "plausibility" threshold requirement.

Assessing Retaliation Claims Brought by Human Resources Professionals

The Second Circuit also addressed Littlejohn's unique role as ACS's director of its EEO Office. Littlejohn did not allege she was retaliated against because she complained about treatment she received, but rather because she complained of the preferential treatment white DJJ employees were receiving over African-American and Latino employees during the merger. Importantly, however, Littlejohn's job at the time of these complaints was as director of the ACS's EEO Office, a job in which she was charged with, among other things, investigating discrimination claims. How the role of a particular employee affects whether conduct is a protected activity was a question of first impression for the Second Circuit — specifically, to what extent "an employee's complaints of discrimination are protected activities under the opposition clause when that employee's job responsibilities involve preventing and investigating discrimination within the company or agency by which she is employed."

Defendants argued "that allowing personnel officers to bring retaliation claims under the opposition clause based on complaints lodged in connection with their official duties would create an automatic prima facie case of retaliation for any terminated human resources or EEO employee . . . and could consequently risk embroiling an employer in gratuitous litigation."

The court, however, was quick to note that there is a clear distinction between simply reporting or even investigating discrimination complaints and communicating the personnel officer's "own 'belief that the employer has engaged in . . . a form of employment discrimination.'" While the former is not inherently "oppositional" in nature, the latter is. "[I]f an employee — even one whose job responsibilities involve investigating complaints of discrimination — actively 'support[s]' other employees in asserting their Title VII rights or personally 'complain[s]' or is 'critical' about the 'discriminatory employment practices' of her employer, that employee has engaged in a protected activity under § 704(a)'s opposition clause." Because Littlejohn was complaining about what she believed to be unlawful discrimination regarding the merger — and not simply relaying others' complaints up her chain of command — the court held that she had engaged in protected conduct.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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