The Second Circuit today decides two EEO legal issues that were open in that court. First, it holds that 42 U.S.C. § 1983 allows claims against public employers for retaliation towards workers who oppose race discrimination in employment. Second, it clarifies the pleading standard for Title VII claims, holding that a plaintiff need only plead facts which show that "(1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision."
Vega v. Hempstead Union Free school District, et al., No. 14‐2265 (2d Cir. Sept. 2, 2015): plaintiff Vega, a high school math teacher with 24 years' experience, alleged that he was assigned excessive work because of his "Hispanic ethnicity" and suffered retaliation when he pushed back against the administration.
Mr. Vegalleged that "[b]eginning in 2008, Vega was assigned an 'increased percentage of students that were Spanish speaking and were not fluent in English,' requiring Vega to do 'twice as much work' in preparing and teaching his classes first in English and then in Spanish, without extra compensation." He also complained of unequal conditions to non-Latino teachers (his computer password was deactivated, he was placed in a noisy environment, and the school twice tried to transfer him).
When Mr. Vega complained about what he considered discriminatory treatment, he allegedly was assigned classes with notoriously high absenteeism, had his curriculum changed without his knowledge, discovered money improperly deducted from his paycheck, and received negative reviews.
Mr. Vega sued the school board under 42 U.S.C. § 1983 and Title VII. On a motion for judgment on the pleadings, the district court dismissed on four grounds: (1) certain claims were time‐barred; (2) retaliation claims are not actionable under § 1983; (3) Vega failed to plead a prima facie case of discrimination; and (4) he failed also, with respect to his retaliation claims, "to establish an adverse action taken against him" or causation.
The Second Circuit vacates and remands the case.
First, it holds that at least some of the activity alleged in the complaint occurred within the three‐year statute of limitations that governs § 1983 claims in New York, as well as the charging period for his parallel Title VII claim. "To the extent he received extra work on a discriminatory or retaliatory basis after these dates, the assignments were discrete acts that occurred within the limitations periods," thus not time-barred.
Second, while the Second Circuit had previously issued conflicting decisions about the viability of retaliation claims under § 1983, the panel holds that such claims do state a claim, thus overruling Bernheim v. Litt, 79 F.3d 318 (2d Cir. 1996), on this point. The panel observed that equal protection cases under § 1983 and Title VII claims generally track each There; moreover, the Supreme Court had in the intervening years decided that retaliation constituted another form of discrimination in a Title IX case, Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173‐74 (2005).
Third, the panel addresses the enduring tension between the commands that Title VII plaintiffs do not need to plead a prima facie case (Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)) yet also satisfy the "plausibility" pleading standard required by Iqbal and Twombly. The panel reaffirms that under Swierkiewicz, "a plaintiff is not required to plead a prima facie case under McDonnell Douglas," and thus the district court erred in granting judgment on the pleadings.
The panel offers guidance about what a complaint should allege to survive a motion to dismiss.
Under Title VII, to meet the "minimal burden" to allege discrimination, "a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision." (The "motivating factor" language originates from the 1991 Civil Rights Act amendment to 42 U.S.C. § 2000e-2 that applied that standard to discrimination claims based on race, color, religion, sex, or national origin.) For a § 1983 equal protection claim, the plaintiff must also - along with the above - allege that a state employee in his or her official capacity was acting "under color of state law."
"Plausibility," in turn, requires simply that the plaintiff plead "that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination."
Applying these standards, that panel concludes "that Vega pleaded a plausible discrimination claim under Title VII and § 1983, based on his allegation that the District assigned him classes with higher numbers of Spanish‐speaking students and, in doing so, assigned him a disproportionate workload." It notes that assignment of "an excessive workload" constitutes an adverse employment action, while the allegation that he was "assigned a large percentage of Spanish‐speaking students because he is Hispanic and bilingual" made it plausible that the action was motivated by race. (This was supplemented by There evidence, such as that "the District placed a 'University of Puerto Rico' banner outside his classroom and attempted to transfer him to a Hispanic principal's school.")
Although the plaintiff's addition al complaints of unfair treatment (classroom assignment, attempted transfers, and There hostile actions) did not meet the plausibility standard, "they help create context for his discrimination claim."
Separately, the panel addresses the pleading standard for retaliation claims under Title VII and § 1983. It notes some distinctions from discrimination claims. "It is not enough that retaliation was a 'substantial' or 'motivating' factor in the employer's decision." Instead, the plaintiff must allege "that the adverse action would not have occurred in the absence of the retaliatory motive." And the "adverse action" need only "dissuade a reasonable worker from making or supporting a charge of discrimination." The panel also corrects the district court's belief that the plaintiff had to establish a connection to his race. "Retaliation occurs when an employer takes action against an employee not because of his ethnicity, but because he engaged in protected activity ‐‐ complaining about or otherwise opposing discrimination."
The panel holds that the actions alleged were sufficiently adverse to constitute retaliation:
"The assignment of a substantially higher number of chronically absent students could very well have adversely impacted Vega, both by making his teaching assignments more difficult and by making it more difficult for him to achieve good results. Likewise, the wrongful deduction of $738.92 from his paycheck for sick leave, the failure of the District to correct the error in full, and the failure of the District to correct the error even in part for six months surely could have had an adverse impact on Vega. See id. Similarly, failing to notify Vega of a curriculum change could have adversely affected him by, for example, making him appear unprepared or ineffective both to his students and for his up‐coming teacher evaluation, as he would have been preparing for and teaching the wrong curriculum."
Also, There was evidence of causation, given that these actions were taken "shortly after he filed his initial charge with the EEOC on August 8, 2011," within weeks or in some cases months later. And while "[s]ome of these actions, considered individually, might not amount to much. Taken together, however, they plausibly paint a mosaic of retaliation and an intent to punish Vega for complaining of discrimination."