In Kpaka v. City University of New York, 2017 WL 3866642 (2d Cir. 16-3527 Sept. 5, 2017) (Summary Order), the Second Circuit affirmed the dismissal of plaintiff’s race discrimination claim under Title VII of the Civil Rights Act of 1964.
The court explained the standards applicable to evaluating the sufficiency of a discrimination claim:
To survive a motion to dismiss an employment discrimination claim, a plaintiff must allege facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination. … An inference of discrimination arises 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.
The court held that all but one of plaintiff’s discrimination claims failed because “her complaint was devoid of any factual allegations giving rise to an inference of discrimination, much less sufficient allegations to nudge [ ] [her] claims across the line from conceivable to plausible.”
The “one exception” was plaintiff’s allegation that plaintiff (who is black) was “passed over for a committee position in favor of a white employee.” The court agreed with the district court, however, that “because the allegedly unlawful action occurred more than 300 days before Kpaka filed her complaint with the Equal Employment Opportunity Commission, any claim based on it was time barred.”
Even putting aside the time-bar issue, however, the court held that plaintiff’s claim would nevertheless “fail because Kpaka made no factual allegations demonstrating that she was similarly situated to the employee in question.”