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Littlejohn v. City of New York, No. 14-1395 (2d Cir. Aug. 3, 2015)

Addressing an issue that has sowed uncertainty among federal courts, the Second Circuit holds that a Title VII plaintiff satisfies the Rule 8 pleading standard of "plausibility" under the Supreme Court's Iqbal decision simply by alleging the prima facie elements of her case. Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), remains good law, and the plaintiff need not anticipate the defendant's furnishing of a non‐discriminatory justification for its action in the complaint. The panel also rejects application of a so-called "manager rule" that would preclude a retaliation claim by an EEO director who opposes discrimination in the course of her duties.

Littlejohn v. City of New York, No. 14-1395 (2d Cir. Aug. 3, 2015): plaintiff Littlejohn served as an HR director for her agency - Department of Juvenile Justice (DJJ) - "who conducted investigations of claims of discrimination, trained staff, monitored hiring, counseled agency employees, organized diversity activities, and advised staff on EEO policy, duties which she alleges she performed satisfactorily." Littlejohn is African-American.

When she was transferred in 2010 from a black supervisor to two white supervisors, named Baker and Mattingly, Littlejohn alleged that relations with Baker were very poor: that Baker increased scrutiny of her work, was impatient with her performance, diminished her role in the organization, and the like. During a consolidation of offices, Littlejohn complained to management that she was excluded from the reorganization process, whites were being favored, and blacks were being denied equal pay and promotion opportunities.

In March 2011, plaintiff "was allegedly demoted to the civil service non‐managerial title of Administrative Staff Analyst, incurring a pay cut of $2,000," and replaced by a white woman. In her new position, Littlejohn also reported that she was sexually harassed by her new supervisor (named Stradford) through on-going propositioning, sexually explicit pictures, physical exposure and groping.

By October 2011, Littlejohn filed a charge of discrimination that mentioned race/color discrimination and retaliation, but not sex discrimination or harassment. The harassment allegedly continued, prompting Littlejohn (in 2012) to request a transfer away from Stradford. The transfer was never ordered, and Littlejohn on October 23, 2012 wrote the EEOC to make it "aware [of] my addition al charge of hostile work environment‐sexual harassment at the hands of my manager [Stradford] within the unit in which I was placed after being unfairly demoted."

plaintiff commenced her lawsuit pro se in 2013 against the agency, Mattingly, Baker and Stradford, claiming violations of Title VII and 42 U.S.C. §§ 1981 and 1983, specifically demotion, hostile work environment and retaliation because of race and color, as well as sex harassment by Stradford. The entire action was dismissed on a Rule 12(b)(6) motion for failure to state a claim.

The Second Circuit reverses in part. The principal holding is reversal of the disparate treatment and retaliation claims. This required the panel to address the "arguable tension" between Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), about the appropriate pleading standard for a Title VII claim. The panel holds that while Iqbal boosted the plaintiff's duty under Rule 8 - to allege enough facts to establish a "plausible" basis for legal relief - it was error to require that the complaint raise more than an inference of discrimination under the burden-shifting rubric of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Holds the Court:

"We conclude that Iqbal's requirement applies to Title VII complaints of employment discrimination, but does not affect the benefit to plaintiffs pronounced in the McDonnell Douglas quartet. To the same extent that the McDonnell Douglas temporary presumption reduces the facts a plaintiff would need to show to defeat a motion for summary judgment prior to the defendant's furnishing of a non‐discriminatory motivation, that presumption also reduces the facts needed to be pleaded under Iqbal."

The panel then considers "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." It holds that "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 plaintiff "need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination."

Applying this standard, the panel holds that Littlejohn alleged a plausible claim of discrimination and retaliation by pleading that she is black, was qualified for the EEO

Director position at issue, and suffered an adverse employment action by being demoted. The inference of discrimination, moreover, was established by allegations that plaintiff "was replaced by a white ACS employee ... after she was demoted from EEO Director," and that the replacement employee "was less qualified for the position," in particular that the replacement had no EEO experience and "was previously the Director of the Accountability/Review Unit that ... involved the comprehensive review of child welfare case practices."

The panel affirms dismissal of the government-action, §§ 1981 and 1983 claims against the individual defendants - excepting Baker, who was the alleged decision maker - and the city itself, in the absence of allegations of a municipal policy or custom.

The panel also reverses dismissal of Littlejohn's retaliation claim under Title VII and § 1983, holding that she alleged a plausible basis for showing that her opposition to race discrimination led to her demotion. The panel rejects application of a so-called "manager rule" that excludes from "protected activity" any EEO opposition that falls within the employee's scope of duties. It quotes Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271, 276 (2009), to the effect that, "[when an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity." It also notes that the plain language of 42 U.S.C. § 2000e‐3(a), the anti-retaliation section, applies to "any" employee.

In sum:

"To the extent an employee is required as part of her job duties to report or investigate There employees' complaints of discrimination, such reporting or investigating by itself is not a protected activity under § 704(a)'s opposition clause, because merely to convey Theres' complaints of discrimination is not to oppose practices made unlawful by Title VII. But if an employee-even one whose job responsibilities involve investigating complaints of discrimination-actively 'support[s]' There employees in asserting their Title VII rights or personally 'complains' 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."

Littlejohn also alleged a causal connection between the protected activity and her demotion, holds the panel, with facts that "the demotion occurred within days after her complaints of discrimination."

Finally, regarding the harassment claims, the panel holds that (1) the alleged race harassment was not sufficiently severe or pervasive; and (2) the sex harassment allegations were not included in Littlejohn's EEOC charge, and thus did not satisfy the Title VII charge-filing precondition to suit.

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