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Second Circuit Clarifies Pleading Standard for Title VII Claims

A Second Circuit panel recently revived a former employee’s racial discrimination suit against New York City, reversing in part the Southern District of New York’s dismissal of her case. In Littlejohn v. City of New York, No.14-1395-cv (2d Cir. August 3, 2015), the panel made a number of important holdings, including on how courts should analyze pre-answer motions to dismiss in federal discrimination cases.

Plaintiff Dawn Littlejohn, an African-American woman who worked as the Director of the Equal Employment Opportunity Office in the City’s Administration for Children’s Services, brought federal Title VII, § 1981 and § 1983 claims against the City and several of her former supervisors. Littlejohn alleged that she was discriminated against on the basis of race when she was subjected to a hostile work environment, demoted, and transferred to another department, after which her former position was filled by a less-qualified white woman. Littlejohn also asserted that her demotion was retaliatory because it came shortly after she had criticized her supervisors’ personnel decisions as showing preferential treatment to white employees during a merger of two City agencies. The Southern District of New York dismissed Littlejohn’s claims in full, and the Second Circuit panel reversed in part. Below are some of the key holdings issued by the Second Circuit in this case:

  • The panel harmonized the “minimal” requirements imposed by the Supreme Court in McDonnell Douglas for showing a prima facie case of discrimination, with the “plausibility” standard required by the Supreme Court’s ruling in Ashcroft v. Iqbal, 556 U.S. 662 (2009). In doing so, the Second Circuit held that to survive a motion to dismiss, a plaintiff must plead facts “giving plausible support” to show that: she is a member of a protected class, was qualified for the job, suffered an adverse employment action, and has “at least minimal support for the proposition that the employer was motivated by discriminatory intent.”

  • In light of this standard, the panel found that Littlejohn had adequately plead her disparate treatment claim because she alleged that she was replaced by a less-qualified white woman.

  • The Court also issued a few important rulings on Littlejohn’s retaliation claim:

    • First, the panel agreed with the lower court that Littlejohn’s internal complaints of discrimination prior to her EEOC charge were not protected under the “participation” clause of Title VII (protecting participation in any manner in an investigation, proceeding, or hearing under Title VII), because she had not (yet) participated in a formal EEOC proceeding.

    • Second, the panel reversed the lower court’s finding that Littlejohn’s complaints were not protected under Title VII’s “opposition” clause (protecting opposition to a practice made unlawful by Title VII). This marked the first time that the Second Circuit addressed the so-called “manager rule,” which provides that an employee whose duties involve reporting discrimination complaints must “step outside his or her role of representing the company” and take action adverse to the company, to engage in protected opposition activity. The Court held that if an employee – even one whose job duties involve investigating complaints of discrimination – actively “supports” other employees in asserting their Title VII rights, or personally “complains” or is “critical” about the “discriminatory employment practices” of her employer, then the employee has engaged in protected opposition activity.

    • Applying this standard, the court found that Littlejohn’s internal complaints against what she perceived as discrimination in the personnel decision-making process were sufficient to plead opposition activity under Title VII.

  • The panel also upheld the district court’s dismissal of Littlejohn’s hostile work environment claim, finding that her allegations did not show behavior that was “severe and pervasive” enough to meet Title VII’s standard. Her allegations included that her manager was impatient and used harsh tones with her, replaced her at meetings, and wrongfully reprimanded her.

The Court’s decision in Littlejohn serves as an important reminder of existing law and also creates new law, particularly with regard to how federal courts will now analyze motions to dismiss discrimination claims. While the case sheds light on federal law, employers should note that the standards articulated by the Second Circuit do not apply to claims arising under New York State or City Human Rights Laws in State court.

© 2020 Proskauer Rose LLP. National Law Review, Volume V, Number 219


About this Author

Steven D Hurd, Employment arbitrator Attorney, Proskauer Rose Law Firm

Steven D. Hurd is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration Practice Group and Media & Entertainment Industry Group.

For nearly 20 years, Steve’s practice has been concentrated in the area of employment litigation. He provides advice to clients concerning litigation avoidance, litigation strategy, and alternative forms of dispute resolution. Steve has extensive trial and appellate experience, in both federal and state courts focusing on claims of alleged individual and...

Nigel F Telman, Labor Employment Attorney, Prosauker Law Firm

Nigel F. Telman leads the employment practice in the Chicago office and is co-head of the Employment Litigation & Arbitration Group.

Nigel's practice is concentrated in litigating single and class action disputes arising out of claims of workplace harassment and employment discrimination. He also represents employers in collective and class actions involving allegations of wage and hour violations under federal and state law. In addition, Nigel has significant experience defending and enforcing Restrictive Covenant Agreements, as well as protecting employers' trade secrets and other confidential information from misappropriation by former employees through the institution of emergency litigation seeking temporary and permanent injunctive relief. Nigel utilizes his experience litigating employment-related disputes to counsel clients on effective ways to avoid such litigation. His counseling practice focuses on training and advising clients on ways to improve all aspects of the employment relationship, including techniques on how to make effective hiring decisions; reviewing and revising employment policies, practices and procedures; and advising on employee disciplinary matters, reductions in force and termination decisions.

Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims,...

Jenna Hayes, Proskauer Rose, Collective Actions Lawyer, Employment Attorney,

Jenna Hayes is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations and Employment Litigation & Arbitration Groups. Jenna has represented clients across myriad industries and sectors, including professional sports leagues and teams, recording companies, news outlets, private universities, not-for-profits and hospitals, in all aspects of labor-management relations, including collective bargaining, grievance arbitrations and National Labor Relations Board hearings and related litigation. Jenna has also advised private...