In Franchino v. Terence Cardinal Cook Health Care Ctr., Inc., No. 16-2383-CV, 2017 WL 2392473 (2d Cir. June 2, 2017) (Summary Order), the Second Circuit held that plaintiff sufficiently alleged an age discrimination, but not sex or national origin discrimination, claims.
Discrimination Pleading Standards
Initially, the court provides an overview/summary of the pleading standards that determine whether plaintiff sufficiently states a claim under the relevant federal statutes (here, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967):
At the pleading stage, a plaintiff alleging discrimination bears only a “minimal burden to show discriminatory intent.” Id. at 311; see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (noting that plaintiff in employment discrimination case has “minimal burden” at the pleadings stage). To survive a motion to dismiss under Rule 12(b)(6), “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.” Littlejohn, 795 F.3d at 311. Thus, at the initial phase of the litigation, a plaintiff’s allegations “need only give plausible support to a minimal inference of discriminatory motivation.” Id.
*2 “An inference of discrimination can arise from circumstances including, but not limited to, the employer’s criticism of the plaintiff’s performance in ethnically 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.” Id. at 312 (internal quotation marks omitted). In addition, “an inference of discrimination also arises when an employer replaces a terminated or demoted employee with an individual outside the employee’s protected class.”
Age Discrimination
Applying the law to the facts, the court first explained why plaintiff sufficiently alleged age discrimination, notwithstanding the ADEA’s heightened “but for” causation standard:
The amended complaint includes the following age-related allegations. As an individual over the age of 40, Franchino is a member of a protected class under the ADEA, see 29 U.S.C. § 631(a). He was replaced by a “much younger” employee, and the ArchCare personnel who were involved in Franchino’s termination are “all substantially younger” than Franchino. App. 4, 7. Franchino was frequently the subject of derogatory age-based cartoons, comments, emails, and jokes in the workplace, and his superiors (in the Human Resources Department) were aware of but did not take any action to stop this conduct—sometimes even joining in and participating themselves. When Franchino was subject to a human resources investigation over false allegations of workplace misconduct, he was denied certain procedural rights and protections (such as the right to representation during a disciplinary hearing) that were routinely granted to younger employees as a matter of departmental policy. Reading these allegations together, they satisfy Franchino’s minimal burden of providing plausible support for a minimal inference of age-based discriminatory motivation.
Contrary to defendants’ arguments, the “but-for” causation standard that applies to Franchino’s ADEA claim does not affect the analysis on the facts alleged here. Although Franchino must ultimately prove that age was the “but-for cause” of his employer’s adverse action in order to recover, see Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), the allegations in the amended complaint are sufficient at this stage to plausibly allege the discriminatory motivation required under the ADEA.
Sex & National Origin Discrimination
In contrast to plaintiff’s age discrimination claim, the court held that “the facts alleged in the complaint do not plausibly support even a minimal inference of discriminatory motivation on the basis of sex or national origin/ethnicity.”
Plaintiff alleged that a his superiors treated a co-worker, Mercado, better than him because she was “a much younger Hispanic woman” and that he was replaced by a female employee.
Applying the law to the facts, the court held:
Taken together, these allegations do not sustain Franchino’s “minimal” burden to show discriminatory intent. Littlejohn, 795 F.3d at 311. The complaint provides no reason to conclude that Franchino’s supervisors, Hill and Pizzarro, were motivated by discrimination on the basis of sex or ethnicity/national origin. On the facts alleged, Mercado was concerned that she may lose her job, so she acted vindictively toward Franchino—not because of his membership in any protected classes, but because she perceived him as threatening her continued employment.
As to Franchino’s sex discrimination claim, the allegation that he was replaced by a female employee is not enough to make his claim plausible in the particular circumstances of this case. Franchino is correct that we have stated, as noted above, that an inference of discrimination may arise when an employer replaces a terminated employee with an individual outside the employee’s protected class. See id. at 312–13. However, for the purposes of 12(b)(6) analysis, we may not consider a particular allegation in isolation; instead, we must consider whether the “factual content” in a complaint “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Considering the replacement allegation in light of the rest of the complaint, any suggestion of discriminatory motivation is undercut by the allegations that Mercado acted out of vindictiveness and self-preservation. Franchino therefore has not alleged a plausible claim of sex discrimination.