Race & National Origin Discrimination Claims Sufficiently Pled; Complaint Sufficiently Alleged That Defendants Treated a Similarly Situated Employee in Different Racial Group More Favorably Than Plaintiff

In Estevez v. S & P Sales and Trucking LLC et al, 17-cv-1733, 2017 WL 5635933 (S.D.N.Y. Nov. 22, 2017), the court held that plaintiff sufficiently alleged a race discrimination claim under 42 U.S.C. 1981.

In sum, plaintiff – a male of Hispanic race and Dominican national origin – was terminated by defendants, allegedly on the basis that he was involved in a scheme to sell wooden pallets belonging to them. Plaintiff claims that another employee (Pignatella) who shared his title – a native-born American of Italian origin – stole cash from his employers, but was not terminated.

The court explained the law – and, particularly, the lowered pleading burden that discrimination plaintiffs have:

Claims of racial discrimination under Section 1981, like those under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), are analyzed using the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987). To make out a prima facia case under this framework, the plaintiff must show that: (1) he belongs to a protected class, (2) he was qualified for his job, (3) he “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). Although the plaintiff is ultimately required to prove that the defendant acted with discriminatory motivation, an initial showing under the McDonnell Douglas framework will create “a temporary ‘presumption’ of discriminatory motives, shifting the burden of production to the employer to offer” a non-discriminatory justification for its actions. Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015).

At the motion to dismiss stage, however, a plaintiff need not even “plead a prima facie case under McDonnell Douglas, at least as the test was originally formulated.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015). Instead “the facts required by Iqbal to be alleged in the complaint … need only give plausible support to a minimal inference of discriminatory motivation.” Littlejohn, 795 F.3d at 311. As the Circuit has counseled, “[a]t the pleading stage, district courts would do well to remember this exceedingly low burden that discrimination plaintiffs face.” Dawson v. N.Y.C. Transit Auth., 624 F. App’x 763, 770 (2d Cir. 2015).

A plaintiff may raise an interference of discriminatory motivation “by showing that the employer … treated him less favorably than a similarly situated employee outside his protected group.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). To do so, the plaintiff must allege that he was “similarly situated in all material respects to the individuals with whom [he] seeks to compare [himself].” Id. (internal quotation marks omitted). What this means, precisely, varies by case. See Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014). However, the Second Circuit has identified as relevant factors: (1) whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards; and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness. See Graham, 230 F.3d at 40. “The plaintiff’s and comparator’s circumstances must bear a ‘reasonably close resemblance,’ but need not be ‘identical.

Applying the law, the court explained:

Here, Estevez alleges that he was similarly situated to Pignatella Jr., an Italian-American. Each held the same job as a “Warehouse Manager” at the Bronx Warehouse. Each was supervised by Joseph Pignatella, Pignatella Jr.’s father. At the motion to dismiss stage, these allegations are enough to plausibly allege that Estevez and Pignatella Jr. were subject to the same workplace standards. See id. (finding plaintiff similarly situated to three co-employees, where all three worked in the same business-development group and two reported to plaintiff’s supervisor). And the conduct which defendants cited as the basis for firing Estevez is fairly comparable to the conduct in which Pignatella Jr. allegedly engaged: The Amended Complaint alleges that whereas Estevez was fired for stealing wooden pallets, Pignatella Jr., stole a significant amount of cash from defendants but kept his job.

Defendants argued that the decision to retain Pignatella was race-neutral, namely, nepotism (his father being his work supervisor). However, although nepotism is indeed a permissible basis for a workplace decision, the competing inferences raised by this scenario could not be resolved on defendants’ motion to dismiss:

Defendant’s inference is plausible, and in the event that nepotism—as opposed to racial discrimination—is shown to have been the basis for Pignatella Jr.’s retention, defendants will be entitled to prevail. “[F]ederal antidiscrimination law does not forbid an employer from making an employment decision ‘based on loyalty to a friend or relative.’ ” Vill. of Freeport v. Barrella, 814 F.3d 594, 613 (2d Cir. 2016) (quoting Neal v. Roche, 349 F.3d 1246, 1251 (10th Cir. 2003)). But the inference that Estevez pursues is also plausible, and on a motion to dismiss, it is not for this Court to choose among plausible inferences. “Whether there exist[s] [a] non-pretextual, non-discriminatory explanation[ ] for the defendants’ employment decisions—a question as to which the defendants bear the burden of production—is not properly decided on a motion to dismiss for failure to state a claim.” Daikin Am. Inc., 756 F.3d at 230-31. Whether this explanation, as opposed to Estevez’s alternative claim that he was more harshly treated because of his race, is more convincing is properly left for later stages in the proceedings.

Judge Engelmayer therefore held that plaintiff “has pled sufficient facts on which to find that defendants treated a similarly situated employee who was of a different racial group more favorably than him, and thus to plausibly support a minimal inference of discriminatory motivation.” He therefore “sufficiently pled his case of racial discrimination under § 1981.”

The court further held that, for the same reasons, plaintiff’s race and national origin discrimination claims were sufficiently alleged under the New York City Human Rights Law (NYCHRL).

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