RELIGIOUS DISCRIMINATION CLAIMS AT THE PLEADING STAGE

PATRICIA COCCA-RAU, Plaintiff, v. STANDARD INSURANCE COMPANY and STANDARD INSURANCE OF NEW YORK, Defendants., No. 19-cv-06149 (PMH). ,United States District Court, S.D. New York. July 22, 2020:

"Title VII of the Civil Rights Act of 1964 "makes it unlawful for an employer `to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'" Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-2(a)(1)). What exactly a plaintiff must allege at the pleading juncture for her Title VII case to survive a motion to dismiss has evolved, and it is appropriate for the Court to pinpoint the applicable pleading standards for a Title VII claim in the Second Circuit before turning to the merits of Plaintiff's claim.

The Supreme Court, in a 1973 landmark decision, adopted a three-stage, burden-shifting framework for analyzing employment discrimination claims under Title VII. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the first stage, a plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. at 802. A plaintiff can make such a showing by demonstrating that: "(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802). Second, once a plaintiff presents a prima facie case of employment discrimination, the burden of production shifts "to the employer to articulate some legitimate, nondiscriminatory reason for the employees'" adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Weinstock, 224 F.3d at 42 ("[T]he defendant may rebut [the plaintiff's prima facie] showing by articulating a legitimate, non-discriminatory reason for the employment action." (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981))). Third, if the defendant can articulate a legitimate, non-discriminatory reason why the plaintiff suffered an adverse employment action, the burden of production shifts back to the plaintiff "to show that [defendant's] stated reason for [plaintiff's adverse employment action] was in fact pretext." McDonnell Douglas, 411 U.S. at 804; Weinstock, 224 F.3d at 4 ("[T]he plaintiff must then come forward with evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination.").

After McDonnell Douglas, for a plaintiff's Title VII claim to survive a motion to dismiss, a plaintiff's complaint had to allege facts constituting a prima facie case of discrimination. That pleading test was reviewed by the Supreme Court in 2002. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002). The Supreme Court, in Swierkiewicz, held that at the motion to dismiss stage "under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie [Title VII] case." Id. The Court rejected a heightened pleading standard and found that the initial phase of the McDonnell Douglas test set forth "an evidentiary standard, not a pleading requirement." Id. at 510. The Court observed:

Under the. . . heightened pleading standard, a plaintiff without direct evidence of discrimination at the time of his complaint must plead a prima facie case of discrimination, even though discovery might uncover such direct evidence. It thus seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.

Id. at 511-12.

The Court further held that this heightened pleading standard was in conflict with Fed. R. Civ. P. 8 which requires only that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. at 512 (quoting Fed. R. Civ. P. 8(a)(2)). When Swierkiewicz was decided in 2002, Conley v. Gibson was good law and provided the motion to dismiss standard of review for evaluating the sufficiency of claims in a complaint pursuant to Fed. R. Civ. P. 8 and 12. Under Conley's liberal pleading standards, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 355 U.S. 41, 45-46 (1957), abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Apparently relying on Conley, the Swierkiewicz Court held that a plaintiff's Title VII allegations "must simply `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz, 534 U.S. at 512 (quoting Conley, 355 U.S. at 47). Therefore, the Court found that "conclusory allegations of discrimination" were enough for a Title VII claimant to survive a motion to dismiss. Id. at 514-15 (finding that because plaintiff "alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA" his claims could survive a motion to dismiss).

Subsequently, Conley's minimal pleading standard was reformed when the Court adopted a heightened plausibility pleading standard in Iqbal. See Iqbal, 556 U.S. at 669-70. Given that Swierkiewicz had relied on Conley to hold that a heightened pleading standard in Title VII cases was improper and in conflict with Rule 8, the continued clarity and use of Swierkiewicz's holding has become uncertain. The Second Circuit, in a pair of 2015 decisions, grappled with how to square Iqbal's heightened plausibility pleading standards with the minimal Title VII pleading standard adopted by the Court in Swierkiewicz.

The first occasion on which the Second Circuit addressed "whether Iqbal's requirement applies to Title VII complaints falling under the McDonnell Douglas framework" was in Littlejohn v. City of New York. See 795 F.3d 297, 309 (2d Cir. 2015). The Court found that Swierkiewicz's minimal pleading standard should be refined in light of Iqbal's plausibility pleading standard. The Court held:

[A]t the initial stage of the litigation—prior to the employer's coming forward with the claimed reason for its action—the plaintiff does not need substantial evidence of discriminatory intent. If she makes a showing (1) that she is a member of a protected class, (2) that she was qualified for the position she sought, (3) that she suffered an adverse employment action, and (4) can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation. . . .

Id. at 311. Therefore, in considering Swierkiewicz's minimal pleading standard and Iqbal's plausibility pleading standard, the Second Circuit kept in place the first three factors of the McDonnell Douglas evidentiary standard. However, as to the fourth McDonnell Douglas factor, the Court modified a plaintiff's pleading burden. Whereas stage one of the McDonnell Douglas evidentiary standard requires a plaintiff to present evidence showing "some minimal evidence suggesting an inference that the employer acted with discriminatory motivation," the Second Circuit in Littlejohn stated that, at the pleading stage and to survive a motion to dismiss, the facts included in a plaintiff's complaint must make it plausible that "the plaintiff. . . has at least minimal support for the proposition that the employer was motivated by discriminatory intent." Id. Stated another way, Littlejohn held that "[t]he facts required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation." Id.
The Court found that an inference of discrimination could arise in, at least, five circumstances including:

[1] the employer's criticism of the plaintiff's performance in ethnically degrading terms; [2] or its invidious comments about others in the employee's protected group; [3] or the more favorable treatment of employees not in the protected group; [4]or the sequence of events leading to the plaintiff's discharge. . . [5 or] when an employer replaces a terminated or demoted employee with an individual outside the employee's protected class.

Id. at 312-13 (internal citations and quotations omitted).

One month later in Vega v. Hempstead Union Free Sch. Dist., a separate panel in the Second Circuit again addressed a Title VII plaintiff's pleading requirement at the motion to dismiss stage in light of Iqbal's plausibility pleading standard. See 801 F.3d 72, 85-87 (2d Cir. 2015). In Vega, rather than apply the Littlejohn version of the four McDonnell Douglas factors at the motion to dismiss stage, the Court held that "under Iqbal and Twombly. . . in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision." Id. at 86. The Court therefore restated the McDonnell Douglas four-factor and Swierkiewicz tests at the pleading juncture in light of Iqbal.

As to whether a plaintiff's allegations are plausible, the court relied on the familiar fundamental plausibility principles: "[A] plaintiff must plead `factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,'" id. (quoting Iqbal, 556 U.S. at 678); "While `detailed factual allegations' are not required, `a formulaic recitation of the elements of a cause of action will not do,'" id. (quoting Twombly, 550 U.S. at 555); "[T]he court must assume the factual allegations in the complaint to be true, even if [they are] doubtful in fact, and a complaint may not be dismissed based on a judge's disbelief of a complaint's factual allegations," id. (internal citations and quotations omitted). Plausibility then is not probability, but rather requires only that the allegations give rise to an inference of discriminatory motivation that "nudge [the plaintiff's] claims across the line from conceivable to plausible." Id. (quoting Twombly, 550 U.S. at 570).

The Vega panel acknowledged that the minimal pleading requirement may be met by evidence of direct discrimination. Id. For example, an employer's policy that requires female employees to contribute more money to a pension fund than male employees is evidence of direct discrimination. See City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978). The panel also acknowledged that a plaintiff could satisfy her minimal pleading burden by alleging facts that create a "`mosaic' of intentional discrimination by identifying `bits and pieces of evidence' that together give rise to an inference of discrimination." Vega, 801 F. 3d 87 (quoting Gallagher v. Delayney, 139 F.3d 338, 342 (2d Cir.1998), abrogated in part on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). The court was cognizant that the discrimination a Title VII claimant faces may be elusive "because discrimination claims implicate an employer's usually unstated intent and state of mind, [and] rarely is there direct, smoking gun, evidence of discrimination." Id. (internal quotations and citations omitted). The Vega panel urged the district court to "draw on its judicial experience and common sense" to identify discriminatory motivation as "clever men may easily conceal their motivations." Id. (quoting Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1043 (2d Cir.1979)).

The Second Circuit emphasized the minimal burden on a plaintiff at the motion to dismiss stage to allege facts demonstrating discrimination and concluded:

At the pleadings stage, then, a plaintiff must allege that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.

Id. at 87 (citing Littlejohn, 795 F. 3d at 310).

Since Littlejohn and Vega were decided, the Second Circuit has reviewed the sufficiency of a Title VII claim by following Littlejohn in some cases^[3] and by following Vega in others.^[4] Even assuming it were necessary, this Court need not reconcile Littlejohn and Vega and their holdings on the proper framework for analyzing whether a Title VII claimant has alleged enough facts to survive a motion to dismiss. The allegations related to Plaintiff's Title VII claim here, analyzed under the pleading standard in both cases, is insufficient and must be dismissed.

Turning to the merits of Plaintiff's claim, Plaintiff's Title VII claim alleges religious discrimination. Compl. ¶¶ 60-67. Plaintiff is a Catholic. Id. ¶ 19. Plaintiff has plausibly alleged that she suffered an adverse employment action because she alleges that she was terminated. Id. ¶ 8; see also Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (finding "termination of employment" is an example of a "materially adverse" employment action). Plaintiff also alleges that she is a member of a protected class, Catholic, see Compl. ¶ 19, and that she was qualified for the position she held, see id. ¶ 21.

The question this Court must address, then, is whether Plaintiff "can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation" or whether Plaintiff has "plausibly allege[d] that. . . [her] race, color, religion, sex, or national origin was a motivating factor in the employment decision." Littlejohn, 795 F. 3d at 311; Vega, 801 F.3d 86. Plaintiff's allegations fail under either standard. The allegations in Plaintiff's Complaint do not give rise to a plausible inference of discrimination based on Plaintiff's Catholic religion. In fact, Plaintiff does not include a single allegation from which the Court can infer that she faced any discrimination based on her religion.

Rather, Plaintiff advances the theory that she faced discrimination "on account of her being non-Jewish" which, according to Plaintiff, is actionable "reverse discrimination." Pl. Opp'n at 6. While Plaintiff is correct that Title VII forbids "reverse discrimination," see McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279 (1976), a plaintiff still must allege that they faced discrimination because of their religion. See 42 U.S.C.A. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer. . . to discharge any individual, or otherwise to discriminate against any individual. . . because of such individuals. . . religion" (emphasis added)). A reverse discrimination claim cannot lie if the plaintiff does not allege that they faced discrimination because of a protected characteristic. Plaintiff could, of course, allege that she faced discrimination based on her Catholic religion. However, Plaintiff makes no such allegation here and the Court therefore cannot plausibly infer that her religion was a motivating factor in her termination. The Court has searched and not found any support for the proposition that a claim of religious discrimination can exist for a "non-Jewish" person.

Additionally, and separately dispositive of Plaintiff's Title VII claim, the majority of Plaintiff's allegations are based upon Plaintiff's beliefs. See, e.g., Compl. ¶ 11 ("Plaintiff was fired, in her view, because she is a non-Jew who acted appropriately regarding possible insurance fraud potentially perpetrated by an ultra-Orthodox (Hasidic) person, and as a matter of `political correctness,' the Standard feared an accusation that it was being labeled `anti-Semitic' by its examining possible fraud by one or more Jewish claimants." (emphasis added)); id. ¶ 13 ("Upon information and belief, if Plaintiff had been Hasidic herself, and pointed out the same evidence of potential fraud, she would not have been fired, or even criticized." (emphasis added)); id. ¶ 52 ("Upon information and belief, the unfounded accusations against Plaintiff are the result of religiously-motivated bias by Defendant." (emphasis added)); id. ¶ 53 ("Upon information and belief, the fact that Plaintiff was making any comment that a Jewish broker or members of a Hasidic school or community may have committed or condoned insurance fraud. . . were construed by Defendant as being `anti-Semitic.'" (emphasis added)). Even if Plaintiff had alleged that she faced discrimination because of her Catholic religion, Plaintiff's Complaint, which is based almost entirely on her beliefs would be insufficient to state a claim for relief. See Gilford v. NYS Office of Mental Health, No. 17-CV-8033, 2019 WL 1113306, at *5-6 (S.D.N.Y. Mar. 11, 2019) ("No matter what the pleading standard is, her complaint must at least contain enough factual allegations that are not made upon information and belief to `raise a right to relief above the speculative level.'" (quoting Twombly, 550 U.S. at 555)); Negrete v. Citibank, N.A., 187 F. Supp. 3d 454, 461 (S.D.N.Y. 2016), aff'd, 759 F. App'x 42 (2d Cir. 2019) ("[W]hile `a plaintiff may plead facts alleged upon information and belief where the belief is based on factual information that makes the inference of culpability plausible, such allegations must be `accompanied by a statement of the facts upon which the belief is founded.'" (quoting Munoz-Nagel v. Guess, Inc., No. 12-cv-1312, 2013 WL 1809772, *3 (S.D.N.Y. Apr. 30, 2013))). Accordingly, Plaintiff's Title VII claim is dismissed."