Female Corrections Officer Plausibly Alleges Gender Discrimination and Retaliation Under Title VII

In O’Toole v. Cty. of Orange, No. 16 CIV. 2059 (NSR), 2017 WL 2377999 (S.D.N.Y. May 31, 2017), the court denied defendants’ motion to dismiss plaintiff’s Title VII gender discrimination and retaliation claims.

As to her gender discrimination claim, the court explained:

Fratto first alleges that she was subjected to disparate treatment on the basis of gender. See, e.g., Compl. ¶ 32 (“had [ ]Fratto been a man, or had she not complained of gender-based harassment, she would not have been fired”). And these allegations of gender-based disparate treatment are not wholly conclusory. According to the Complaint, at least some similarly situated male employees received more favorable treatment than Fratto. For example, Fratto claims that “[o]ther male probationary officers who regularly violated departmental rules, [such as] appearing late for lineups on a regular basis, were not disciplined and passed their probationary periods.” (Id. ¶ 28). Moreover, while Fratto “was never disciplined or written up in any manner concerning her supervision of the female inmates,” (id. ¶ 24), she was terminated without an explanation or offer to retrain. (Id. ¶¶ 25, 29.) The law permits a plaintiff to raise a plausible inference of discrimination by alleging “preferential treatment given to similarly situated individuals,” Perry v. State of N.Y. Dep’t of Labor, 08-CV-4610 (PKC), 2009 WL 2575713, at *2 (S.D.N.Y. Aug. 20, 2009), aff’d, 398 Fed.Appx. 628 (2d Cir. 2010), so long as the alleged comparators are “similarly situated in all material respects,” Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (emphasis added). Because Fratto plausibly alleges that the male colleagues who purportedly received superior treatment were similarly situated in all relevant respects—i.e., that those male officers who violated department rules were (1) had similar levels of experience and (2) ultimately retained, while Fratto was not—her assertions of differential treatment permit a plausible inference of gender discrimination. The Court notes, however, that while Plaintiff’s sex discrimination allegations meet the de minis burden at this stage, the facts—as alleged—appear to sound more strongly as a hostile work discrimination claim than a gender discrimination one.

Finally, Defendants argument that Plaintiff was fired for failing to properly supervise her unit is immaterial. (Def.’s Reply Mem. (“Def.’s Reply”) at 3-4, ECF No. 17.) More specifically, Defendant points to Fratto’s EEOC complaint to allege that Plaintiff herself acknowledges that she “was embarrassed” of the situation with her inmate unit “and when question [ ] did not admit it,” as true. (See Hyun Chin Kim in Reply (“Kim Reply Decl”) Ex. C, ECF No. 17.) Whether an employer had a nondiscriminatory reason for firing a plaintiff is a question that a court reaches only at step two of the McDonnell Douglas framework, and the Second Circuit instructed in Littlejohn that, in order to survive a motion to dismiss, “[t]he plaintiff cannot reasonably be required to allege more facts in the complaint than the plaintiff would need to defeat a motion for summary judgment made prior to the defendant’s furnishing of a non-discriminatory justification.” Littlejohn, 795 F.3d at 311 (emphasis added); see also id. at 312 (“[B]ecause this appeal involves review of a motion to dismiss, we focus only on whether the allegations in the complaint give plausible support to the reduced prima facie requirements that arise under McDonnell Douglas in the initial phase of a litigation.”). Thus, Fratto need only plead sufficient facts to show that she could plausibly satisfy the requirements of step one of the McDonnell Douglas framework—that is, to show that she is entitled to the initial presumption of discriminatory motivation. Here, Plaintiff plausibly alleges that (1) as a woman, she was unfairly treated when co-workers spread rumors and repeatedly accused her of sleeping with Sergeant Long, and (2) similarly situated male co-workers were extended more opportunities to commit or recover from actual employment infractions. Whether Defendant will ultimately be able to rebut that presumption because it had a non-discriminatory reason for firing Fratto is irrelevant at this stage of the litigation. Accordingly, in light of Littlejohn, Defendant’s motion to dismiss Fratto’s discrimination claims under Title VII must be, and is, denied.

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