May 2, 2011
Does this sound familiar? An employee fired for cause, who is either unable or unwilling to accept responsibility for his/her own poor performance, commences litigation claiming unlawful discrimination. The pending litigation forces the employer into a Morton’s Fork dilemma of either: (1) paying an in terrorem settlement to avoid the exorbitant costs of discovery, subsequent motion practice and potential trial; or (2) incurring the exorbitant costs of discovery, subsequent motion practice and potential trial to hopefully win the case several years down the road.
Unfortunately, this scenario has become all too familiar to employers. Until recently, the predicament facing employers has largely been a function of the ease with which a would-be plaintiff employee may patch together a complaint and survive a motion to dismiss. Indeed, forcing an employer into time consuming and expensive litigation has been merely a matter of asserting the following conclusory, false syllogism: (1) I am a member of a protected class (as is literally everyone); (2) I was terminated from my job; (3) therefore, I was terminated from my job because I am a member of a protected class.
Fortunately, however, two recent cases from federal courts in New York may evidence an emerging trend of taking a more favorable view of motions to dismiss in employment discrimination cases, a trend that may help employers avoid the difficult choice between settling early or enduring the expense of prolonged litigation
In Zucker v. Five Towns College, the plaintiff was a 69 year old college admissions recruiter. After being terminated by the College, Mr. Zucker sued alleging unlawful age discrimination. While the College sought dismissal of Mr. Zucker’s claims by filing a pre-answer motion to dismiss, Mr. Zucker tried to avoid dismissal by arguing that the mere fact his replacement was younger than him was sufficient to entitle him to discovery. Citing the College’s arguments, United States District Judge Joanna Seybert rejected Mr. Zucker’s argument. Judge Seybert held that in order to survive a motion to dismiss, a plaintiff is required to plead concrete facts demonstrating that the employment decision was motivated by discriminatory animus as opposed to what could be a whole array of legitimate considerations. Judge Seybert also held that being replaced by someone outside of the plaintiff’s protected class does not, standing alone, salvage a claim:
[I]f such barebones allegations sufficed to state a claim, then any time an ADEA-covered employer terminated an employee over age forty, the employer would be unable to replace that employee with someone younger without exposing itself to potential liability for age discrimination. And Defendants similarly argue, correctly noting that every employee is a member of multiple protected classes. Thus, unless a terminated employee is being replaced by a virtual clone, his/her replacement will almost certainly be outside of one of the Plaintiff’s protected classes (e.g., could be younger and/or a different gender, race, religion, national origin). The Court agrees with this reasoning. And the Court has no desire to abrogate [Federal Rule of Civil Procedure] 8’s gate-keeping function in employment discrimination cases, enabling nearly every fired employee to subject his employer to burdensome, expensive discovery.
More recently, and relying on Judge Seybert’s decision in Zucker, Judge Colleen McMahon in the Southern District of New York granted a motion to dismiss a race discrimination claim in Ochei v. Mary Manning Walsh Nursing Home Co. Judge McMahon specifically rejected the “false syllogism” that a decision to terminate someone’s employment necessarily flows from his/her protected class. Rather, according to Judge McMahon, the complaint must plead specific facts demonstrating the causal connection between the adverse action and the protected class:
Where there is no reason to suspect that an employer’s actions had anything to do with membership in a protected class, other than plaintiff’s bald assertion that she was a member of such a class, and the people who made decisions about her employment were not, no claim is stated.
To protect employers from precisely this sort of untenable situation, naked assertions by plaintiff that some protected demographic factor motivated an employment decision, without a fact-specific allegation of a causal link between defendant’s conduct and the plaintiff’s membership in a protected class, are simply too conclusory to withstand a motion to dismiss.
The decisions in Zucker and Ochei should give employers pause before quickly settling cases or plowing straight into expensive discovery. While a pre-discovery motion to dismiss may not always be available, such a motion should be given careful consideration.
Jessica Satriano contributed to the writing of this post.