Thursday, February 17, 2011

Pleading Employment Claims Sufficiently

A while ago I read Professor Charlie Sullivan's (Seton Hall) article on SSRN titled, "Plausibly Pleading Employment Discrimination" and took note. Now, Attorney Daniel A. Schwartz over at the Connecticut Employment Law Blog profiles a case where a plaintiff fell victim to a rare judgment on a motion to dismiss in their age discrimination case under the ADEA. The case comes out of a Connecticut federal district court and Schwartz sums it up nicely:

What was deficient in the complaint? Well, the court said that even though a prima facie case of age discrimination need not be plead, courts use it as a "guidepost" to see if the claims have provided defendant with "fair notice" of her claim. And in this case, the court said that she "has not, and cannot show that she was fired under circumstances giving rise to an inference of discriminatory intent".

The court did say that such circumstances can be found in:

•"employer criticisms of the plaintiff's performance using degrading, age-related terms,
•invidious comments about others in the employee's protected group,
•the transferring of plaintiff's duties to younger employees,
•more favorable treatment of employees not in the protected group,
•the sequence of events leading to plaintiff's discharge,
•or the termination of two out of three older employees but no younger employees"
(In doing so, the court has essentially created a road map for bringing an age discrimination claim that will survive a motion to dismiss.)

In this case, the court said that evidence that women 20 years younger than her were promoted to positions over her had no relevance in the absence of the plaintiff seeking such promotions as well.

She also alleged that as part of a reduction in force, she was in the top five in terms of age and one of five employees over 40 years old terminated (out of 8 total individuals). That too was not enough, particularly because she hadn't alleged that she was replaced by someone younger.

Before employers rejoice too much, however, the court did allow a claim of retaliation under the whistleblower provisions of the Sarbanes-Oxley act to survive the motion. So the case will march on.


As Professor Sullivan pointed out in his article and what probably would have saved the plaintiff in this case, employment suits in the aftermath of Twombly and Iqbal require something a little extra until the issue is finally cleared up by the Supreme Court. That something extra according to Professor Sullivan is 1) pleading a prima facie case of discrimination under the traditional McDonnell Douglas standard, 2) by pleading "direct evidence" of discrimination, 3) pleading the existence of a comparator whose more favorable treatment than plaintiff may make the claim of discrimination plausible or 4) plead the existence of social science research showing the pervasiveness of discrimination. Perhaps the plaintiff in the above-referenced case may take leave of court to amend their complaint pursuant to FRCP Rule 15...? Let's sharpen our complaints, plaintiff attorneys!

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