2d Circuit Affirms Dismissal of Title VII Employment Discrimination Claim; Clarifies That Pretext Need Not Be Alleged to Survive Motion to Dismiss

In Javed v. Medgar Evers College, 17-3461-cv (2d Cir. May 25, 2018) (Summary Order), the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s order granting defendant’s motion to dismiss plaintiff’s Title VII employment discrimination claims.

From the Order:

Javed failed to identify any [timely] actions … that indicate even a whiff of discriminatory animus. Nor, despite his attempts, has he plausibly alleged “more favorable treatment of employees not in [his] protected group.” Littlejohn, 795 F.3d at 312 (internal quotation marks omitted). Javed’s second amended complaint does not sufficiently identify any other Medgar Evers employees as comparators or contain any facts suggesting that those employees were provided more favorable treatment though “similarly situated in all material respects,” Brown v. Daikin America, Inc., 756 F.3d 219, 230 (2d Cir. 2014) (internal quotation marks omitted).

Contrary to the district court’s suggestion, Javed does not need to allege “facts tending to show that Medgar Evers’[s] concern about the IT failure [for which Javed was disciplined, demoted, and fired] was pretextual” to survive a motion to dismiss. Javed, 2017 WL 4357138, at *8. Indeed, he does not even need to establish a prima facie case to do so. See Vega v. Hempstead Union Free School District, 801 F.3d 72, 84 (2d Cir. 2015). But his complaint does need to put forward “at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Id. at 85 (quotation marks omitted). Javed failed to meet even this “minimal burden.”

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