In Stalling v. FINRA, 21-CV-8390, 2021 WL 5166406 (S.D.N.Y. Nov. 5, 2021), the court, inter alia, dismissed plaintiff’s “failure to hire” discrimination claim as insufficiently alleged.
The court explained the governing law (substantive and procedural) as follows:
Title VII provides that “[i]t shall be an unlawful employment practice 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.” 42 U.S.C. § 2000e-2(a).
Similarly, a plaintiff bringing a Section 1981 claim for employment discrimination must plausibly allege sufficient facts to demonstrate that: (1) he is a member of a protected class, (2) he was qualified for his position, (3) he suffered an adverse employment action, and (4) the adverse action took place under circumstances giving rise to the inference of discrimination. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010).
These antidiscrimination provisions prohibit employers from mistreating an individual because of the individual’s protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), or retaliating against an employee who has opposed any practice made unlawful by those statutes, see Crawford v. Metro. Gov’t, 555 U.S. 271, 276 (2009) (holding that conduct is protected when it “confront[s],” “resist[s],” or “withstand[s]” unlawful actions). Mistreatment at work that occurs for a reason other than an employee’s protected characteristic or opposition to unlawful conduct is not actionable under these federal antidiscrimination statutes. See Chukwuka v. City of New York, 513 F. App’x 34, 36 (2d Cir. 2013) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
At the pleading stage in an employment discrimination action, “a plaintiff must plausibly allege that (1) the employer took adverse employment action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The plaintiff “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; see also McDowell v. North Shore-Long Island Jewish Health Sys., Inc., 788 F. Supp. 2d 78, 81 (E.D.N.Y. 2011) (“At the pleading stage of a Section 1981 discrimination claim, the Court does not apply the familiar McDonnell Douglas burden shifting test used to analyze the evidentiary support for discrimination claims, but rather generally assesses the plausibility of the plaintiff’s claim based on the facts alleged.”).
Applying the law, the court explained:
Here, Plaintiff alleges that FINRA did not hire him, but he does not plead any facts that give rise to an inference that his race or sex were motivating factors in that decision. For example, Plaintiff does not allege any facts about the position for which he applied and whether he was qualified for the position. The fact that Plaintiff was “denied by a female,” by which he seems to mean that a female FINRA employee was the hiring decisionmaker, does not give rise to an inference that Plaintiff was discriminated against based on sex. Plaintiff’s allegation that he shared his social media profile with an unidentified person at FINRA might be relevant, insofar as it suggests that someone at FINRA might have been aware of Plaintiff’s race if his race was apparent from his social media account. Nevertheless, this allegation is insufficient to state a claim that race motivated the decision not to hire Plaintiff.
The court did, however, grant plaintiff leave to amend his complaint to provide further necessary detail.