Second Circuit Gives Pro Se Discrimination Plaintiff Another Chance

The Second Circuit last week issued a summary order granding pro se (i.e., self-represented) plaintiff Diane Robinson an opportunity to amend her complaint alleging employment discrimination and retaliation.  The court’s order in Robinson v. Goulet, 12-3606 (May 17, 2013) is here.

Plaintiff alleged that her manager, Peter Goulet, discriminated against her on the basis of her sex and race, retaliated against her for filing a complaint against him, and subjected her to a hostile work environment.  The trial court granted Goulet’s motion to dismiss her complaint for failure to state a claim.

Plaintiff was required to “plead enough facts to state a claim to relief that is plausible on its face.”  The court noted that it was required to construe her pro se complaint more liberally.

No Individual Liability Under Title VII

Initially, the court held that the lower court properly dismissed plaintiff’s claims against Goulet, because “individuals are not subject to suit under Title VII.”  The court therefore gave her an opportunity to amend her complaint to “name the proper defendant, her employer.”

Disparate Treatment

Plaintiff’s’s allegations “indicate the possibility of discrimination and thus present a plausible claim of disparate treatment.”


Robinson alleged that she was an African-American female, she was yelled and cursed at “because [she is] Black and . . . a female,” and that her work hours were reduced and she was prohibited from working overtime, while other male and white employees did not face similar reductions. The loss of overtime hours or pay on the basis of race or sex violates Title VII.  … [I]t is plausible that Goulet’s alleged actions constituted a materially significant disadvantage with respect to the terms and conditions of Robinson’s employment. Consequently, Robinson’s complaint sufficiently pleaded the “possibility of discrimination.”


The court also allowed plaintiff an opportunity to amend her complaint “to flesh out” her retaliation claim:

Robinson has alleged that, inter alia, Goulet refused her requests for time off, reduced her hours, and “continually yelled and cursed” at her after Robinson filed a complaint about him. Although the content of that complaint is somewhat unclear, her letter to the court accompanying her civil complaint could be read as stating that her internal complaint alleged both that Goulet had an affair and, possibly, that he was giving white employees special treatment.

The court distinguished this case from its recent decision in Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., (2d Cir. Apr. 26, 2013), which it characterized as holding that “complaints about a ‘paramour preference’ claim alone are not protected.”  (I previously wrote about the Kelly case here.)

In addition,

Robinson also states that, after making her initial complaint, she was then assigned to work with a co-worker who made sexual advances, that she reported this harassment, and that her supervisors never followed up with her and instead accused her of being lazy.

The court therefore permitted plaintiff to amend her complaint:

Reading her allegations generously, if given the opportunity to amend her complaint, Robinson may be able to plead sufficient facts to demonstrate that she had a reasonable, good-faith belief that Goulet’s and her other co-worker’s actions were unlawful under Title VII, that her employer knew her complaints were about unlawful activity (if she in fact complained of disparate treatment or sexual harassment), that she suffered adverse employment actions, and that these adverse actions were motivated at least in part by retaliatory animus.

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