In many employment discrimination lawsuits brought in federal court under Title VII of the Civil Rights Act of 1964, one of the first hurdles most plaintiffs face is a motion to dismiss their complaint for “failure to state a claim.” Such a motion under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the allegations contained in the complaint, essentially asserting there isn’t enough there for the case to proceed. While a plaintiff doesn’t have to prove they were discriminated against at this early stage of the case, they have to plead enough facts that, if proven, would constitute a viable claim.
In a recent case, the United States Court of Appeals for the Second Circuit expounded on what a plaintiff’s Title VII employment discrimination complaint must include to avoid dismissal under Federal Rule of Civil Procedure 12(b)(6). Buon v. Spindler, No. 21-622-cv, 2023 U.S. App. LEXIS 8729, at *1 (2d Cir. Apr. 12, 2023), will likely constitute the ”go to” case for judges when determining the sufficiency of a complaint in the Second Circuit.
Pleading v. Proof
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Therefore, to properly assert an intentional discrimination claim against an employer under Title VII, a plaintiff’s complaint must allege two elements:
- “The employer discriminated against the plaintiff
- Because of their race, color, religion, sex, or national origin.”
In other words, a complaint must set forth the “what” – there was a discriminatory action – and the “why” – the employer discriminated against the plaintiff for unlawful reasons.
If a complaint is sufficient and the claim proceeds, the plaintiff then needs to prove a prima facie case of intentional discrimination on the merits. If they do, the burden shifts to the employer to prove a legitimate, nondiscriminatory reason for their actions. If the employer does so, the burden then goes back to the plaintiff to show the employer’s stated reason was a mere “pretext” for its actual, discriminatory motivation. This three-part framework is known as the McDonnell Douglas standard.
In reversing the district court’s dismissal of Buon’s Title VII claims, the Second Circuit emphasized that the McDonnell standard’s requirements do not apply at the pleading stage. A “prima facie case . . . is an evidentiary standard, not a pleading requirement,” the court said. Therefore, “it is not appropriate to require a plaintiff to plead facts establishing a prima facie case.”
Instead, “absent direct evidence of discrimination, what must be plausibly supported by facts alleged in the complaint is that the plaintiff:
- Was a member of a protected class.
- Was qualified.
- Suffered an adverse employment action.
- Has at least minimal support for the proposition that the employer was motivated by discriminatory intent.”
“Plausible” – Not “Probable” – Inference of Discrimination Is All That Is Required in Complaint
At issue in Buon was whether the plaintiff had sufficiently alleged “an adverse employment action” that was “motivated by discriminatory intent.” The plaintiff was a middle school principal who claimed the school district discriminated against her because of her race. The adverse actions she set forth were that the district denied her requests to participate in additional programs and her termination as a middle school principal and transfer back to her old position as an elementary school principal.
The district court held that a “denial of an educator’s request to participate in additional programs, including paid programs, does not constitute an adverse employment action.” The Second Circuit disagreed, stating that “any decision by an employer, including the denial of a workplace opportunity that materially affects the terms and conditions of employment, can constitute an adverse employment action.”
As to pleading discriminatory intent, the plaintiff alleged she “was qualified for the position she sought or held and was either denied appointment or replaced by a person of another racial and/or ethnic group who lacked her qualifications.” Additionally, she set forth “a series of instances of disparate treatment in the workplace where she was allegedly subjected to job requirements and to discipline that was different than employees outside her protected class.”
The district court ruled that the plaintiff failed to meet her pleading burden on the issue of intent, relying improperly, in the Second Circuit’s view, on an inference of the defendant’s nondiscriminatory intent. That inference applies to summary judgment after the development of evidence in the case, the Court said, but “should not be used to foreclose Title VII… claims at the motion-to-dismiss stage if the plaintiff has otherwise set forth allegations that support a plausible inference of discrimination.”
This decision recognizes that at the outset of an employment discrimination case, victims rarely have the full picture of what went on behind the scenes of their employers’ actions and decision-making. To expect an initial complaint to paint that complete picture before the plaintiff can gather evidence is an unreasonable burden. Instead, a plaintiff should be allowed to “[c]reat[e] a mosaic with the bits and pieces of available evidence” that, taken together, support a plausible inference of intentional discrimination.”
If you believe your employer has taken discriminatory action against you, do not be deterred from taking action because you don’t yet have all of the facts and evidence to back up your claim. Please contact Outten & Golden today to discuss your situation.
