“Plausibility” Pleading Standard for Title VII Discrimination Cases Clarified and EEO Director’s Own Complaints of Discrimination Found to be “Protected Activity”

August 27, 2015

In a decision earlier this month, the Second Circuit reinstated disparate treatment and retaliation claims filed by a former New York City, Administration for Children’s Services (“ACS”) Director of its Equal Employment Opportunity Office and held that a plaintiff at the pleading stage “does not need substantial evidence of discriminatory intent” but rather “gets the presumption of discriminatory intent.” Littlejohn v. City of New York, No. 14-1395-CV, 2015 WL 4604250 (2d Cir. Aug. 3, 2015). The District Court granted defendants’ 12(b)(6) motion to dismiss in its entirety on the grounds that she failed to adequately plead her discrimination claims. In the opinion, the Second Circuit closely examined the pleading standards for Title VII discrimination claims and clarified that, at the pleadings stage, the plaintiff does not have to show an ultimate prima facie case of discrimination and gets the benefit of a temporary presumption such that the pleadings must be viewed in the light of most favorable to plaintiff. “The plaintiff cannot reasonably be required to allege more facts in the complaint than the plaintiff would need to defendant’s motion for summary judgment made prior to the defendant’s furnishing of a non-discriminatory justification.”

Significantly, the Circuit Court held that a Title VII plaintiff satisfies the FRCP 8(a)(2) notice pleading standard of “plausibility” under the Supreme Court’s Iqbal decision simply by alleging the prima facie elements of her case. In Iqbal, the Supreme Court said that a plaintiff alleging discrimination must plead “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.662, 697 (2009). Looking to the “quartet of cases” led by McDonnell Douglas v. Green, 411 U.S. 792 (1973) as well as Swierkiewsicz v. Sorema, NA, 534 U.S. 506 (2002) and Ashcroft v. Iqbal, 556 U.S.662 (2009), the Second Circuit held that the Iqbal requirement of “plausibility” applies to Title VII complaints of employment discrimination but does not affect the benefit to plaintiffs of the McDonnell framework for burden-shifting between parties, including the temporary presumption in plaintiff’s favor.

The Circuit Court then considered “…what, in the Title VII context, must be plausibly supported by factual allegations when the plaintiff does not have direct evidence of discriminatory intent at the outset.” The court explained, “absent direct evidence of discrimination, what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent. The facts alleged must give plausible support to the reduced requirements that arise under McDonnell Douglas in the initial phase of Title VII litigation. 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.”

Turning to Littlejohn’s retaliation claim, the Circuit Court rejected the application of a so-called “manager rule” that excludes from “protected activity” any EEO opposition that falls within the employee’s scope of duties. Here, the defendants contends that Littlejohn’s complaints of racial discrimination were not protected actions under §704(a) because it was part of Littlejohn’s job responsibilities to investigate complaints of Title VII violations in her role as Director of the EEO office. Unimpressed with this argument, the Second Circuit held that, “[t]o the extent an employee is required as part of her job duties to report or investigate other employees’ complaints of discrimination, such reporting or investigating by itself is not a protected activity under § 704(a)’s…. But if 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….”

While the plaintiff will ultimately be required to prove that the employer-defendant engaged in discriminatory or retaliatory conduct, the initial pleadings phase of the case has been notably relaxed for the offended employee-plaintiff. There does seem to be a trend in the legislature and the courts to enlarge the scope of employment practices litigation through stricter regulations, and now greater latitude in this first pleading phase of a case.