In Jones v. Bloomingdale’s, 17-CV-1974, 2018 WL 6067227 (S.D.N.Y. Nov. 20, 2018), the court, inter alia, dismissed plaintiff’s race discrimination case based on defendant’s alleged post-employment discriminatory conduct.
From the decision:
Nor can Jones salvage his employment discrimination claim, under either § 1981 or Title VII, by relying on Bloomingdale’s allegedly discriminatory conduct after he left the company, as some circuits have allowed. See Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 198-99 & n.4 (3d Cir. 1994). Although the Second Circuit has not made clear whether, under either statute, plaintiffs can assert racial discrimination claims based on a defendant’s post-employment conduct, Jones has, in any event, not sufficiently pled that any such racially discriminatory conduct occurred. To satisfy a claim of employment discrimination under both Title VII and § 1981, a plaintiff must demonstrate that “(1) she fell within a protected class under Title VII; (2) she was qualified for the position she held; (3) she was subjected to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination.” Robinson v. Concerta Health Serv., Inc., 781 F.3d 42, 45 (2d Cir. 2015). Jones broadly contends that Bloomingdale’s employees Holubowicz and Bagdziunas continued to slander him after leaving the company, but nowhere does he allege that such statements were racially motivated.
While the court noted that “[p]laintiffs may nevertheless raise an inference of employment discrimination under Title VII or § 1981 by showing disparate treatment—that is, a showing that the employer treated plaintiff less favorably than a similarly situated employee outside his protected group”, plaintiff here did “not explain how he was similarly situated to any white employees that left the company, but merely alleges that ‘other form[er] black employees that worked at Bloomingdale’s’ told him that ex-employees who were black were treated differently than those who were white.” This, held the court, “in itself is not a sufficiently pled allegation.”