Title VII Race, National Origin Discrimination Claims Insufficiently Alleged

From Rojas v. Port Auth. of New York & New Jersey, No. 15CV6185NGGPK, 2016 WL 5921777, at *8–9 (E.D.N.Y. Oct. 11, 2016):

Having found that Plaintiff has at least one timely allegation of disparate treatment under each statute, the court turns to the sufficiency of the pleadings. The court finds that none of Plaintiff’s timely allegations are sufficiently specific to establish a presumption of discriminatory intent under Littlejohn. The Amended Complaint merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement,’ ” which are insufficient to save a claim from dismissal. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
The August 2014 promotion is illustrative. Plaintiff states that he “was not listed for promotion” on August 15, 2014, but he makes no specific allegations regarding the race, national origin, or qualifications of the officers who did receive promotions. (See Am. Compl. ¶¶ 35-37.) Plaintiff states only that the “list of officers promoted… reflected the continuing discriminatory practices of the agency that are tainted by cronyism [and] nepotism[,] and that negatively impact minority members of the [Department].” (Id. ¶ 36.) Plaintiff’s allegations are similarly conclusory with regard to all the other denied promotions stretching back to January 2013.7
These allegations closely resemble the factual claims rejected by the Iqbal Court. In that case, the plaintiff alleged that the government defendants subjected him to “harsh conditions of confinement as a matter of policy, solely on account of his religion, race, and/or national origin and for no legitimate penological interest.” Iqbal, 556 U.S. at 680 (emphasis added) (internal alterations, quotation marks, and citations omitted). Similarly, Plaintiff’s allegations in this action are “no more than conclusions,” and are thus “not entitled to the assumption of truth” that attaches to well-pleaded factual allegations. Id. at 679.
By way of contrast, Plaintiff’s allegations of discriminatory K-9 Officer promotions in 2008 contained additional material details. Plaintiff alleged that he “was the only non natural citizen participating for the canine detail,” but that “a non minority officer, junior and less qualified than the plaintiff, obtained the canine position.” (Am. Compl. ¶ 38.) If these allegations were not time-barred, they may have been sufficient to create a presumption of discrimination under Littlejohn. As it stands, however, a single well-pleaded allegation of discrimination in 2008 does not establish a presumption of discrimination with regard to promotion decisions that occurred four or more years later.
*9 Plaintiff’s disparate treatment claim cannot survive a motion to dismiss even with the court taking as true the allegations that Defendant “failed to apply objective criteria in evaluating” candidates and “failed to conduct the promotional process” in accordance with its own policies. (See Am. Compl. ¶¶ 17-18.) Such conduct by an employer may well be frustrating for employees who strive for promotion based on merit. Standing alone, however, those allegations fail to show “circumstances giving rise to an inference of discrimination” on the basis of race or national origin. Vega, 801 F.3d at 87 (emphasis added).
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