Instructive Decision on Pleading a Title VII Gender Discrimination Claim

In Bivens v. Institute for Community Living, 15-cv-07173 (SDNY April 17, 2015), the Southern District of New York held that plaintiff plausibly alleged gender discrimination under Title VII of the Civil Rights Act of 1964 (and, necessarily, the New York City Human Rights Law).

In addition to providing guidance on pleading these types of claims, the court rejected defendants’ arguments in opposition, including that plaintiff was terminated due to a reduction-in-force.

A prima facie case of employment discrimination under Title VII requires proof that: (1) plaintiff is a member of a protected class; (2) plaintiff was qualified for his or her position; (3) plaintiff was subjected to an adverse employment action; and (4) the adverse employment action took place under circumstances giving a rise to an inference of discrimination based on plaintiff’s membership in the protected class.”

As in many cases, the parties did not dispute the existence of the first three elements – the plaintiff (1) is a woman, and hence in a protected class, (2) qualified for her position, and (3) suffered an adverse employment action (termination). The parties did, however dispute element four.

The court explained the law on that point:

[A]n inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to … the employer’s criticism of the plaintiff’s performance in [sexually] degrading terms; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s discharge. With respect to an employer’s comments … [t]he relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class.

Facts Supporting Inference of Discrimination

Applying the law to the facts, the court held that “gender-based discrimination may be plausibly inferred” and pointed to the following facts, in combination, that support this conclusion:

  • Plaintiff’s supervisor’s alleged exuberance upon hiring a man, Garin (saying “I finally have a guy in QA”);
  • Plaintiff’s supervisor’s preferential treatment of a male hire as compared to women (including inviting him to attend exclusive executive level meetings, an opportunity denied to women until they had several years of experience);
  • Plaintiff’s supervisor’s comments, namely, openly praising the male hire and his potential, while routinely and openly criticizing certain women’s intelligence, appearance, weight, and attire and telling a co-worker that “women have to make a choice between working and raising children”;
  • Plaintiff’s supervisor’s alleged practice of blocking or delaying women’s promotions and raises;
  • the new male hire’s alleged lack of qualifications;
  • Plaintiff’s supervisor’s alleged departure from the company’s “last hired, first fired” practice, such that “a recently hired, unproven male … was retained, whereas a highly qualified, experienced, and successful female, [plaintiff], was fired”;
  • The fact that plaintiff had “first-rate qualifications, experience, and an ‘excellent’ record” whereas the retained male employee “was inexperienced, allegedly underqualified, and in ‘over his head'”; and
  • The alleged suspicious timing of plaintiff’s termination, including the fact that the termination occurred just weeks after plaintiff had been lobbying her supervisor for raises for her female subordinates.

The court concluded:

Under these circumstances, the Court comfortably concludes that, in combination, these alleged gender-based comments, disparities in treatment, and suspicious timing plausibly permit the conclusion that Goldberg’s decision to fire Bivens while retaining Garin was gender-based. The Amended Complaint, in fact, paints a multifaceted portrait of favoritism by Goldberg based on gender. And the facts pled readily permit the conclusion that Goldberg viewed his sole male employee in the group, Garin, as untouchable because of his gender. By contrast, Goldberg viewed his “excellent” female employee—the sole critic of Garin, and the person who fought for women’s promotions and salaries—as expendable.

The court then turned to, and rejected, defendants’ arguments as to why the Amended Complaint should be deemed deficient.

Reduction-in-Force

First, defendant argued that plaintiff’s “position was eliminated as part of an agency-wide reduction-in-force [which] may be a legitimate, non-discriminatory reason for termination.”

No, said the court:

[W]hile a reduction-in-force or restructuring that results in an elimination of jobs often is a legitimate reason for dismissing an employee[,] . . . such a reduction is not always the whole story. Here, Bivens’ allegation is that, when Goldberg needed to pare personnel costs, he used gender as a basis for deciding which employee to eliminate. Where, as here, such an allegation is supported by well-pled factual assertions, a valid claim has been stated, notwithstanding that the initial impetus for the termination was budgetary. … In other words, a reduction-in-force that is implemented in a gender discriminatory fashion is unlawful.

Same-Actor Inference

Next, the court rejected defendants’ reliance on the so-called “same actor inference”, citing plaintiff’s pleading a “change of circumstances”, namely, the hiring of the company’s first male employee in plaintiff’s group.  This “open[ed] the door for the first time to preferential treatment by [plaintiff’s supervisor] of a male employee over females, including [plaintiff].”

Stray Remarks

Third, the court rejected defendants’ reliance on the “stray remarks” doctrine, reasoning:

[O]n a motion to dismiss, the statements attributed to Goldberg [plaintiff’s supervisor] in the Amended Complaint must be viewed in the light most favorable to Bivens and are not so easily diminished. The Amended Complaint alleges that Goldberg was overtly exuberant about having hired a male—“I finally have a guy in QA.” This facially gender related comment is relevant context for viewing Goldberg’s later treatment of Garin, on the one hand, and Bivens (and other female employees), on the other. … Goldberg’s statement that he was thrilled to have finally hired “a guy” is probative. It supports Bivens’ claim that Goldberg’s favorable treatment of Garin over the females under his supervision, including ultimately retaining him over Bivens, reflected gender bias.

Similarly Situated

Finally, the court rejected defendants’ argument that the alleged differential treatment of the male employee relative to female employees did not indicate gender discrimination because the women were not “similarly situated” to the male employee in experience and compensation.

The court explained:

Here, defendants argue, Garin and Bivens held different positions and had different levels of experience. But, on the facts pled, those distinctions do not necessarily undermine the inference of discrimination. On the contrary, one basis for Bivens’ claim of gender discrimination is, in part, that she was so plainly better qualified than Garin that Goldberg’s curious decision to expel her and retain Garin suggests an ulterior motive—gender bias. Put differently, as pled, Bivens and Garin were “similarly situated” as to the key criteria at issue at the time of her termination: They were in the same group of 10 employees, of whom Goldberg, for budgetary reasons, needed to terminate one so as to permit him to save approximately $100,000.

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