The Second Circuit’s recent opinion in Littlejohn v. City of New York provides clarity around pleading standards in Title VII cases, confirming that the “plausibility” standard of Twombly and Iqbal does apply to Title VII claims. Unfortunately, the case is a bit of a mixed bag for employers, as Littlejohn only requires that a plaintiff state a plausibleprima facie case, not a plausible case that discrimination was the ultimate reason for termination.
In effect, Littlejohn signals what most employment practitioners already know: discrimination claims lacking merit usually die on summary judgment, not on a motion to dismiss. Additionally, the Littlejohn decision addressed an interesting issue for retaliation claims brought by HR or diversity professionals -- what must such an employee do in order to engage in protected activity? The Second Circuit’s answer may have given a broad swath of such employees a license to sue at will.
In Littlejohn v. City of New York, No. 14-1395 (2d Cir. Aug. 3, 2015), the plaintiff, Dawn Littlejohn, an African-American woman, claimed, among other things, that she was subject to disparate treatment based on her race and retaliated against due to her complaints of discrimination. Littlejohn, as the Director of the EEO Office for the New York City Administration for Children’s Services, reported and investigated allegations of discrimination as part of her job duties. She also complained about the defendant’s selection process during a reduction-in-force following a merger of two city agencies, in particular, complaining of a failure to city agency manuals that required an adverse impact analysis. Following her complaints, she was transferred to an allegedly lesser role and replaced by a white woman with lesser experience in the EEO arena. The District Court initially dismissed her claims, but the Second Circuit reversed.
In its opinion, the Second Circuit discussed at length a number of key Supreme Court decisions concerning Title VII evidentiary and pleading burdens and attempted to harmonize those decisions, particularly Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), with the watershed decisions on federal pleading standards set forth in Bell Atlantic Corp. v Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rejecting the notion that Swierkiewiczsomehow exempts Title VII claims from the Twombly/Iqbal standard, the Second Circuit confirmed that the plausibility standard does apply, and, as such, conclusory allegations of discrimination will not suffice.
The Second Circuit’s real trick was to then delineate what a plaintiff must plausibly allege in order to state a Title VII disparate treatment claim. Although Swierkiewicz held that a plaintiff need not plead the elements of a prima facie case established by McDonnell Douglas and its progeny, the Second Circuit held that plausibly pleading those elements was perfectly sufficient: “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.” Littlejohn, slip op. at 33. Whether Swierkiewiczhas any life in the Second Circuit after Littlejohn is questionable, although one could speculate that plaintiffs might attempt to revive it in cases involving allegations of direct evidence of discrimination.
Not content to decide one issue of first impression in its opinion, the Second Circuit also took the opportunity inLittlejohn to clarify the “protected activity” element of Title VII retaliation claims brought by HR and diversity professionals. The Second Circuit clarified that for employees who are required to report or investigate complaints of discrimination as part of their job duties, such reporting and investigating are not protected activities. However, focusing on the “oppositional” aspect of protected activity, the court held that any employee – regardless of job duties – who actively supports other employees in asserting their rights under Title VII, complains or is otherwise critical about the employer’s alleged discriminatory practice has engaged in protected activity. In holding as much, the Second Circuit downplayed the defendant’s suggestion that allowing a retaliation claim by HR or diversity professionals in these circumstances would increase the risk of “gratuitous litigation” by such employees, who, given the nature of their job duties, will often be able to point to some candid criticism they gave their employer that was close in time to their termination or other adverse action. Whether the Second Circuit was right to waive off these concerns remains to be seen.