Title VII Sex/Race-Based Discrimination, Retaliation Claims Dismissed; Link Between Protected Class(es) and Adverse Action Was Lacking

In Hunley v. DTLR Villa, Inc., 22-CV-6010L, 2022 WL 1447737 (W.D.N.Y. May 9, 2022), the court granted defendant’s motion to dismiss plaintiff’s discrimination and retaliation claims asserted under Title VII of the Civil Rights Act of 1964.

This case teaches that a plaintiff may not prevail on such a claim by merely alleging that (a) they are a member of a protected class, and (b) they suffered a negative action at work; rather, there must be a plausibly-alleged link between the two. Here, the court holds, that necessary element is lacking.

From the decision:

Plaintiff’s claims suffer from multiple defects, foremost among which is that there are no facts alleged that tend to show that plaintiff’s sex or race, or his complaints about certain matters, had anything to do with his termination or any other allegedly adverse job action. Even giving them a generous construction, plaintiff’s allegations boil down to this: he is a black male; as least one of his supervisors was female; and he experienced some problems during his employment, leading up to and including his termination.

The law is clear, though, that a Title VII plaintiff must allege more than that. “Simply being a member of a protected class, without something more to link that status to the action in question, is not enough to raise a reasonable inference of discriminatory animus.” Cole v. Board of Trustees of Northern Ill. Univ., 838 F.3d 888, 900 (7th Cir. 2016). See also Canady v. Union 1199/SEIU, 527 F.Supp.3d 515, 516 (W.D.N.Y. 2021) (“simply falling into a protected category is not enough”); Perry v. County of Westchester, No. 06-CV-3000, 2008 WL 11438085, at *17 (S.D.N.Y. Mar. 31, 2008) (“Plaintiff’s membership in a protected class in and of itself does not establish discriminatory animus”). Likewise, the fact that an employee complained about something at some point, without more, does not plausibly suggest that any subsequent adverse actions were retaliatory. See Cole, 838 F.3d at 901 (plaintiff’s “membership in a protected class, without anything more, is not enough to transform his general complaint about improper workplace practices into a complaint opposing race discrimination”).

In none of the incidents or problems alleged is there any indication that plaintiff’s race, sex or protected activity was a factor. Kish, a woman, apparently criticized plaintiff on at least one occasion, perhaps less than tactfully. But “Title VII does not set forth a general civility code for the American workplace,” Redd v. N.Y.S. Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012) (internal quote omitted), and absent allegations suggesting unlawful animus–which are completely lacking here–that does not give rise to a Title VII claim.

Plaintiff’s assertion that his transfer to a different supervisor in June 2019 is a “clear admission” by DTLR that Kish, as DTLR’s agent, had unlawfully discriminated against plaintiff, see Complaint ¶ 11, is clearly meritless. There are any number of reasons why DTLR might have made that decision, and since there is not a single fact alleged indicating that any unlawful animus was at work, plaintiff’s conclusory allegation that this amounted to an “admission” of such fails to meet the plausibility test recited above.

As to his retaliation claim, the court explained, inter alia, that there were “wide gaps, temporal and otherwise, between plaintiff’s complaints and his eventual termination” (noting that plaintiff was terminated in December 2020, at which time he had been working under a different supervisor for approximately a year and a half), and that he did not allege “that similarly situated employees outside the protected class were treated differently, or that he ever complained about unlawful discrimination or any practices prohibited by Title VII.”

The court declined to allow plaintiff an opportunity to amend his complaint, noting that while plaintiff offered to “cure any deficiencies in the claims by pleading additional facts,” plaintiff did “not provide any inkling of what those ‘additional facts’ might be.”

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