In Wickland v. Archcare at Terrance Cardinal Cooke Health Care Center et al, 2024 WL 3432029 (E.D.N.Y. July 15, 2024), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s claim of sex discrimination (termination) asserted under Title VII of the Civil Rights Act of 1964.
The court summarized the law, and applied it to the facts, as follows:
A plaintiff alleging discrimination under Title VII needs only to 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. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015).
As to the first element, termination of employment is a well-established adverse action under Title VII. See id. at 85 (“Examples of materially adverse changes include termination of employment …”). As to the second element, at the pleading stage a plaintiff has only a “ ‘minimal burden’ of alleging facts “suggesting an inference of discriminatory motivation” for the adverse action. Id. at 85 (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)) (emphasis in original). That is, discrimination need not be demonstrated by direct evidence as “rarely is there direct, smoking gun, evidence of discrimination.” Vega, 801 F.3d at 86. “Instead, plaintiffs usually must rely on ‘bits and pieces’ of information to support an inference of discrimination, i.e., a ‘mosaic’ of intentional discrimination.” Id. (citation omitted). Discriminatory motive may be inferred from an employer’s actions including “the employer’s criticism of the plaintiff’s performance in ethnically degrading terms; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s discharge.” Littlejohn, 795 F.3d at 312 (quotation marks omitted).
While Plaintiff satisfies the first prong because he was terminated by Archcare on May 16, 2022, he fails to establish any facts meeting the “minimal burden” of showing his termination was motivated by discriminatory intent based on his sex. Compl. at 81. None of the facts alleged in any portion of the Complaint include any negative comments from Archcare that could possibly be construed as targeting Plaintiff’s sex.
Neither has Plaintiff painted a sufficient picture showing he was subject to less favorable treatment than those of his opposite sex. Construed liberally, Plaintiff argues that he was treated less favorably by Archcare than a female colleague because Plaintiff’s female colleague, who also faced verbal abuse and reported it to management, had her abuser fired while his purported abuser, Deacon, was allowed to stay employed. See Compl. at 6, 19, 22-23. However, even assuming arguendo that this establishes a “minimal inference of discriminatory motivation” in his termination, Archcare has carried its burden to “articulate some legitimate, nondiscriminatory reason” for the disparate treatment. See Vega, 801 F.3d at 87 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)) (A “plaintiff may prove discrimination indirectly either by meeting the requirements of McDonnell Douglas and showing that the employer’s stated reason for its employment action was pretext to cover-up discrimination.”). Here, the obvious alternative explanation is that Plaintiff was fired due his three days of “no call no show” to his job at Archcare. Consequently, Plaintiff fails to carry his minimal burden. See Twombly, 550 U.S. 544, 568, 570 (2007). Further, there is no other evidence in the Complaint showing that this termination was pretextual. Indeed, the May 10, 2022, meeting was set up for the purpose of establishing the expected level of professional conduct upon Plaintiff’s return to work. Thus, any claim of discriminatory termination is without merit and dismissed. See Bockus v. Maple Pro, Inc., 850 Fed.Appx. 48, 51 (2d Cir. 2021) (granting 12(b)(6) motion where plaintiff failed to allege that “anyone at [employer] ever said or did anything that suggested, prior to [plaintiff’s] termination, that [employer] treated men less favorably as a group, or otherwise operated on the basis of sex stereotyping”).
The court further dismissed plaintiff’s retaliation claim, finding no causal connection between the asserted protected activities (emails regarding disputes with fellow employees) and his termination.