Race Discrimination Claims vs Madison Security
McBride v. Madison Security Group., Inc., 19 Civ. 3203 (WFK) (LB) (E.D.N.Y.)
McBride v. Madison Security Group., Inc. is a race discrimination lawsuit against a security guard company. Set forth below is the text of the plaintiff's brief in opposition to the company's motion to dismiss the amended complaint.
Plaintiff's Opposition to the Motion to Dismiss
Statement of Facts
Plaintiff Richard McBride is a Black man who was employed by defendant Madison Security Group. Inc. as a security guard. Amended Complaint ¶¶ 5-7 (copy annexed to the Declaration of John J.P. Howley as Exhibit 1).
Madison Security had a policy that stated: “Any violation of the law that you commit on or off duty must be reported immediately to the Human Resources Department.” Id. ¶ 8.
On July 17, 2017, Mr. McBride entered the New York City subway with two Metrocards in his wallet. He did not realize that the Metrocard he pulled out of his wallet had expired. When it did not work in the turnstile, he moved to another turnstile and tried again. A New York City police officer arrested Mr. McBride and issued him a desk appearance ticket. Id. ¶¶ 9-11.
On July 28, 2017, Madison Security’s human resources manager, Mr. Frazier, handed Mr. McBride a letter stating that his employment was being terminated because he failed to report a violation of the law. Mr. McBride informed Mr. Frazier that he did not violate the law and, in fact, he was not found guilty of violating the law. He asked Mr. Frazier if he could apply for re-employment after the charges were dismissed. Mr. Frazier said no. Id. ¶¶ 12-19.
On October 5, 2017 – after all charges against Mr. McBride had been dismissed – Madison Security challenged his application for unemployment benefits. Madison Security argued that he was not eligible for unemployment benefits because he failed to comply with company policy requiring that he report a “violation of the law.” Id. ¶ 20.
The New York State Department of Labor rejected Madison Security’s argument on the ground that the company policy only required employees to report a “violation of the law.” The policy did not require an employee to report an arrest. The New York State Department of Labor also found that, because Mr. McBride was innocent of the charges, “he committed no act of misconduct by not reporting the matter to the employer.” Id. ¶¶ 21-22.
Madison Security has allowed other employees to continue working or return to work after failing to report an arrest, and even while serious felony charges are pending. Id. ¶¶ 23-36.
Chris Callado is a Hispanic male who is employed by Madison Security as a security guard at the same location where plaintiff was employed. He is not Black or African American. Mr. Callado was arrested while he was employed by Madison Security and did not report the arrest to the company. Id. ¶¶ 23-26.
Madison Security knew that Mr. Callardo was arrested and that he failed to report his arrest to the company, but never told him that he was ineligible to apply for re-employment. He was allowed to return to work for Madison Security despite violating the company’s policy. Id. ¶¶ 27-30.
Timothy Grover is a White male who is both an employee and an owner of Madison Security. He is not Black or African American. Mr. Grover was arrested on a number of serious charges while he was employed by Madison Security, including assault with intent to rape a 20 year old woman, assault of a student at a high school, and assault of a police officer. A judge held Mr. Grover without bail after finding that he was dangerous to the community. Id. ¶¶ 31-33.
This was not Mr. Grover’s first arrest. He was previously arrested for disorderly conduct, resisting arrest, assault, assault and battery with a dangerous weapon, and driving under the influence of alcohol. Mr. Grover is still an employee of Madison Security, and he continues to receive compensation and benefits as an employee of the company notwithstanding his arrest, detention, and pending criminal charges. Id. ¶¶ 34-36.
On December 27, 2017, Mr. McBride filed a timely charge of discrimination against Madison Security with the United States Equal Employment Opportunity Commission (EEOC). Id. ¶ 37; see also EEOC Charge (Howley Decl., Exh. 2).
The EEOC found probable cause that Madison Security discriminated against Mr. McBride based on his race and issued a right to sue letter on May 10, 2019. Amended Complaint ¶ 38; see also Right to Sue Letter (Howley Decl., Exh. 3).
On August 6, 2019, Mr. McBride timely commenced this action by filing a pro se complaint alleging claims for race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., the New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq. On November 4, 2019, Mr. McBride filed an amended complaint. Amended Complaint ¶¶ 40-50.
Argument
Point I
Plaintiff Filed a Timely EEOC Complaint and Exhausted Administrative Remedies
“Before an individual may bring a Title VII suit in federal court, the claims forming the basis of such a suit must first be presented in a complaint to the EEOC or the equivalent state agency.” Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (citing 42 U.S.C. § 2000e-5). “In addition, the claimant must make the EEOC filing within 300 days of the alleged discriminatory conduct and, before bringing suit, must receive a ‘Notice of Right to Sue’ letter from the EEOC.” Id. (citing Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001); Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir. 1999)).
A. Plaintiff Filed a Timely EEOC Complaint
Madison Security asserts that Mr. McBride’s EEOC complaint was not filed within 300 days of the alleged discriminatory acts. Defendant’s Memorandum of Law in Support (“Def. Mem.”) at 5.
This assertion is demonstrably false. Mr. McBride was fired on July 28, 2017. Amended Complaint ¶¶ 12, 37. He filed a formal EEOC charge on December 20, 2017, which was within the 300-day statute of limitations. Howley Decl., Exh. 2. The EEOC transmitted a copy of the charge to Madison Security on February 28, 2018, which was also within the 300-day statute of limitations. Id. Accordingly, Mr. McBride filed a timely complaint with the EEOC.
The Court may consider the EEOC Charge and Right to Sue Letter on this motion to dismiss because the documents are referenced in the Amended Complaint and integral to plaintiff’s claims. See, e.g., Littlejohn v. City of New York, 795 F.3d 297, 305 & nn. 2-3 (2d Cir. 2015); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); EEOC v. Golden Lender Fin. Group, No. 99 Civ. 8591 (JGK), 2000 WL 381426, at *1 (S.D.N.Y. Apr. 13, 2000).
B. Plaintiff Put the EEOC on Notice that He Inquired About Re-Employment and Was Refused
Madison Security argues that Mr. McBride’s EEOC complaint is insufficient to support his claims in this lawsuit because it did not put the EEOC on notice of his claim that he “inquired about re-employment and was found ‘ineligible to apply for reemployment’ based upon his request.” Def. Mem. at 4-5. Madison Security also asserts that “the facts alleged in the Amended Complaint are inconsistent with those presented to the EEOC.” Id. at 5.
These assertions are demonstrably false. Mr. McBride alleged in his EEOC complaint that Madison Security discriminated against him on the basis of his race when he was discharged for allegedly violating company policy. EEOC Charge, at 1. He also alleged that a similarly situated employee who is not Black was allowed to return to work after violating the same policy. Id.
Mr. McBride informed the EEOC that he asked to reapply for his position, and that Madison Security’s human resources manager told him that he was not eligible to re-apply. EEOC Investigation Memorandum (Howley Decl., Exh. 4). Madison Security challenged that assertion by submitting a letter to the EEOC claiming that, “At no time did Mr. McBride ever request or seek reinstatement of his employment at Madison after his termination. Unlike Mr. McBride, [the other employee] expressly requested to be rehired by Madison after his termination.” Madison Security Response to EEOC (Howley Decl., Exh. 5).
The Court may consider the EEOC’s Investigation Memorandum and Madison Security’s Response to the EEOC on this motion to dismiss because these documents are part of the EEOC’s investigation file and integral to both Mr. McBride’s claims and Madison Security’s asserted defense on this motion. See, e.g., Littlejohn, 795 F.3d at 305 & nn. 2-3; Cortec Indus., 949 F.2d at 47-48; Golden Lender, 2000 WL 381426, at *2.
On May 10, 2019, after hearing from both Mr. McBride and Madison Security on the issue of whether Mr. McBride had requested reinstatement, the EEOC issued a Right to Sue letter. Right to Sue Letter (Howley Decl., Exh. 3).
The EEOC Investigation Memorandum and Madison Security’s own Response to the EEOC establish that Mr. McBride put the EEOC on notice of his claim that he inquired about re-employment and was told he was ineligible, that Madison Security addressed that claim in the EEOC proceedings, and that the EEOC considered the issue during its investigation of Mr. McBride’s EEOC charge. The facts alleged in the Amended Complaint are, therefore, completely consistent with those presented to the EEOC. Madison Security’s motion to dismiss should be denied for this reason alone.
The motion should also be denied because Mr. McBride’s claim that he was denied reinstatement is directly related to his claim of wrongful termination and Madison Security’s defense to that claim.
“Claims not raised in an EEOC complaint . . . may be brought in federal court if they are ‘reasonably related’ to the claim filed with the agency.” Williams, 458 F.3d at 70 (citing Butts v. City of New York Dep’t of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)). “‘A claim is considered reasonably related if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made.’” Id. (citation omitted); see also Butts, 990 F.2d at 1402.
In this case, an EEOC investigation of Mr. McBride’s claim that he was wrongfully terminated would have included an inquiry into whether he was denied an opportunity to apply for reinstatement. Indeed, the EEOC investigation necessarily included an inquiry into the issue of reinstatement, because Madison Security argued in its defense that Mr. McBride did not apply for reinstatement, while the other employee had asked for reinstatement. There is no need to speculate on this point, because the EEOC did, in fact, inquire into the issue of reinstatement during its investigation. See, e.g., Hudson v. Potter, 497 F. Supp. 2d 491, 503-04 (W.D.N.Y. 2007).
Having affirmatively raised the issue of reinstatement as a defense to Mr. McBride’s EEOC charge, Madison Security cannot now claim that the EEOC charge “would not have put the EEOC on notice” of the reinstatement issue. See Def. Mem. at 5. Accordingly, Madison Security’s motion to dismiss for failure to raise the issue of reinstatement in the EEOC should be denied.
Point II
The Facts Alleged in the Amended Complaint State Claims for Race Discrimination in Violation of Title VII and the New York State and City Human Rights Laws
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015).
In Littlejohn, the Second Circuit addressed the pleading requirements for a Title VII claim in light of the legal standard set forth in Iqbal and Twombly. The Second Circuit concluded that, “at the initial stage of the litigation – prior to the employer's coming forward with the claimed reason for its action – the plaintiff does not need substantial evidence of discriminatory intent.” Littlejohn, 795 at 311; see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). The Second Circuit emphasized “that at the pleading stage of an employment discrimination case, a plaintiff has a ‘minimal burden’ of alleging facts ‘suggesting an inference of discriminatory motivation.’” Vega, 801 F.3d at 85 (quoting Littlejohn, 795 at 31) (emphasis in original)).
Mr. McBride alleges that he was terminated and denied the opportunity to return to work for allegedly violating a company policy, while a similarly situated employee who was not Black was permitted to return to work after violating the same company policy. These allegations are sufficient to meet his burden of pleading facts suggesting an inference of discriminatory motive.
The Second Circuit has repeatedly held that “[a]n inference of discrimination can arise from circumstances including . . . ‘the more favorable treatment of employees not in the protected group.’” Littlejohn, 795 F.3d at 312 (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)); see also Vega, 801 F.3d at 88 (plaintiff “plausibly alleged that the adverse action was taken ‘because of’ his Hispanic ethnicity,” because he alleged that he was given additional work, “while his similarly-situated co-workers were not assigned additional work”).
Madison Security cites only two cases that were decided on a motion to dismiss. Neither case supports dismissal of Mr. McBride’s claims. In Patane v. Clark, 508 F.3d 106 (2d Cir. 2007), a sex discrimination complaint was dismissed because plaintiff did not allege “that any male employees were given preferential treatment when compared to Plaintiff.” Id. at 112. Similarly, in Thompson v. ABVI Goodwill Servs., No. 12 Civ. 6212 (CJS), 2013 WL 505491 (W.D.N.Y. Feb. 8, 2013), aff’d, 531 F. App’x 160 (2d Cir. 2013), an age discrimination claim was dismissed because the complaint did “not specifically refer to any younger employees, let alone ones who were similarly situated.” Id. at *3-4.
All of the other cases cited by Madison Security were decided on summary judgment or after trial. None of the cases supports dismissal of discrimination claims on a motion to dismiss where, as here, the plaintiff has identified a similarly situated co-worker, who is not in the protected class, and who received more favorable treatment. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (affirming judgment after trial, but noting that plaintiff, a Black man, established a prima facie case of race discrimination because his position as shift commander was given to a White man after he was fired); Tomassi v. Insignia Financial Group, Inc., 478 F.3d 111, 114 (2d Cir. 2007) (plaintiff established a prima facie case of age discrimination because her job duties were assigned to a younger employee after she was terminated); Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 113 (2d Cir. 2013) (reversing summary judgment dismissing discrimination claims because there was evidence that plaintiff was treated less well than her male colleagues); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (summary judgment appropriate because plaintiff did not offer any evidence that similarly situated co-workers received more favorable treatment); Lopez v. Guardian Serv. Indus., No. 08 Civ. 8569, 2012 U.S. Dist. LEXIS 18523, at *14-15 (S.D.N.Y. Feb. 10, 2012) (same); Nixon-Tinkelman v. NYC Dep’t of Health & Mental Hygiene, Index No. 113339/2007, 2011 N.Y. Misc. LEXIS 3869, at *3 (Sup. Ct. N.Y. Co. July 27, 2011) (same).
Conclusion
For all the foregoing reasons, plaintiff requests entry of an Order denying defendant’s motion in its entirety and granting such other relief as the Court deems just and proper.
Dated: New York, New York
May 15, 2020
THE HOWLEY LAW FIRM P.C.
By: John J.P. Howley
Attorneys for Plaintiff
225 West 34th Street, 9th Floor
New York, New York 10122
(212) 601-2728
Plaintiff Richard McBride is a Black man who was employed by defendant Madison Security Group. Inc. as a security guard. Amended Complaint ¶¶ 5-7 (copy annexed to the Declaration of John J.P. Howley as Exhibit 1).
Madison Security had a policy that stated: “Any violation of the law that you commit on or off duty must be reported immediately to the Human Resources Department.” Id. ¶ 8.
On July 17, 2017, Mr. McBride entered the New York City subway with two Metrocards in his wallet. He did not realize that the Metrocard he pulled out of his wallet had expired. When it did not work in the turnstile, he moved to another turnstile and tried again. A New York City police officer arrested Mr. McBride and issued him a desk appearance ticket. Id. ¶¶ 9-11.
On July 28, 2017, Madison Security’s human resources manager, Mr. Frazier, handed Mr. McBride a letter stating that his employment was being terminated because he failed to report a violation of the law. Mr. McBride informed Mr. Frazier that he did not violate the law and, in fact, he was not found guilty of violating the law. He asked Mr. Frazier if he could apply for re-employment after the charges were dismissed. Mr. Frazier said no. Id. ¶¶ 12-19.
On October 5, 2017 – after all charges against Mr. McBride had been dismissed – Madison Security challenged his application for unemployment benefits. Madison Security argued that he was not eligible for unemployment benefits because he failed to comply with company policy requiring that he report a “violation of the law.” Id. ¶ 20.
The New York State Department of Labor rejected Madison Security’s argument on the ground that the company policy only required employees to report a “violation of the law.” The policy did not require an employee to report an arrest. The New York State Department of Labor also found that, because Mr. McBride was innocent of the charges, “he committed no act of misconduct by not reporting the matter to the employer.” Id. ¶¶ 21-22.
Madison Security has allowed other employees to continue working or return to work after failing to report an arrest, and even while serious felony charges are pending. Id. ¶¶ 23-36.
Chris Callado is a Hispanic male who is employed by Madison Security as a security guard at the same location where plaintiff was employed. He is not Black or African American. Mr. Callado was arrested while he was employed by Madison Security and did not report the arrest to the company. Id. ¶¶ 23-26.
Madison Security knew that Mr. Callardo was arrested and that he failed to report his arrest to the company, but never told him that he was ineligible to apply for re-employment. He was allowed to return to work for Madison Security despite violating the company’s policy. Id. ¶¶ 27-30.
Timothy Grover is a White male who is both an employee and an owner of Madison Security. He is not Black or African American. Mr. Grover was arrested on a number of serious charges while he was employed by Madison Security, including assault with intent to rape a 20 year old woman, assault of a student at a high school, and assault of a police officer. A judge held Mr. Grover without bail after finding that he was dangerous to the community. Id. ¶¶ 31-33.
This was not Mr. Grover’s first arrest. He was previously arrested for disorderly conduct, resisting arrest, assault, assault and battery with a dangerous weapon, and driving under the influence of alcohol. Mr. Grover is still an employee of Madison Security, and he continues to receive compensation and benefits as an employee of the company notwithstanding his arrest, detention, and pending criminal charges. Id. ¶¶ 34-36.
On December 27, 2017, Mr. McBride filed a timely charge of discrimination against Madison Security with the United States Equal Employment Opportunity Commission (EEOC). Id. ¶ 37; see also EEOC Charge (Howley Decl., Exh. 2).
The EEOC found probable cause that Madison Security discriminated against Mr. McBride based on his race and issued a right to sue letter on May 10, 2019. Amended Complaint ¶ 38; see also Right to Sue Letter (Howley Decl., Exh. 3).
On August 6, 2019, Mr. McBride timely commenced this action by filing a pro se complaint alleging claims for race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., the New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq. On November 4, 2019, Mr. McBride filed an amended complaint. Amended Complaint ¶¶ 40-50.
Argument
Point I
Plaintiff Filed a Timely EEOC Complaint and Exhausted Administrative Remedies
“Before an individual may bring a Title VII suit in federal court, the claims forming the basis of such a suit must first be presented in a complaint to the EEOC or the equivalent state agency.” Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (citing 42 U.S.C. § 2000e-5). “In addition, the claimant must make the EEOC filing within 300 days of the alleged discriminatory conduct and, before bringing suit, must receive a ‘Notice of Right to Sue’ letter from the EEOC.” Id. (citing Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001); Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir. 1999)).
A. Plaintiff Filed a Timely EEOC Complaint
Madison Security asserts that Mr. McBride’s EEOC complaint was not filed within 300 days of the alleged discriminatory acts. Defendant’s Memorandum of Law in Support (“Def. Mem.”) at 5.
This assertion is demonstrably false. Mr. McBride was fired on July 28, 2017. Amended Complaint ¶¶ 12, 37. He filed a formal EEOC charge on December 20, 2017, which was within the 300-day statute of limitations. Howley Decl., Exh. 2. The EEOC transmitted a copy of the charge to Madison Security on February 28, 2018, which was also within the 300-day statute of limitations. Id. Accordingly, Mr. McBride filed a timely complaint with the EEOC.
The Court may consider the EEOC Charge and Right to Sue Letter on this motion to dismiss because the documents are referenced in the Amended Complaint and integral to plaintiff’s claims. See, e.g., Littlejohn v. City of New York, 795 F.3d 297, 305 & nn. 2-3 (2d Cir. 2015); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); EEOC v. Golden Lender Fin. Group, No. 99 Civ. 8591 (JGK), 2000 WL 381426, at *1 (S.D.N.Y. Apr. 13, 2000).
B. Plaintiff Put the EEOC on Notice that He Inquired About Re-Employment and Was Refused
Madison Security argues that Mr. McBride’s EEOC complaint is insufficient to support his claims in this lawsuit because it did not put the EEOC on notice of his claim that he “inquired about re-employment and was found ‘ineligible to apply for reemployment’ based upon his request.” Def. Mem. at 4-5. Madison Security also asserts that “the facts alleged in the Amended Complaint are inconsistent with those presented to the EEOC.” Id. at 5.
These assertions are demonstrably false. Mr. McBride alleged in his EEOC complaint that Madison Security discriminated against him on the basis of his race when he was discharged for allegedly violating company policy. EEOC Charge, at 1. He also alleged that a similarly situated employee who is not Black was allowed to return to work after violating the same policy. Id.
Mr. McBride informed the EEOC that he asked to reapply for his position, and that Madison Security’s human resources manager told him that he was not eligible to re-apply. EEOC Investigation Memorandum (Howley Decl., Exh. 4). Madison Security challenged that assertion by submitting a letter to the EEOC claiming that, “At no time did Mr. McBride ever request or seek reinstatement of his employment at Madison after his termination. Unlike Mr. McBride, [the other employee] expressly requested to be rehired by Madison after his termination.” Madison Security Response to EEOC (Howley Decl., Exh. 5).
The Court may consider the EEOC’s Investigation Memorandum and Madison Security’s Response to the EEOC on this motion to dismiss because these documents are part of the EEOC’s investigation file and integral to both Mr. McBride’s claims and Madison Security’s asserted defense on this motion. See, e.g., Littlejohn, 795 F.3d at 305 & nn. 2-3; Cortec Indus., 949 F.2d at 47-48; Golden Lender, 2000 WL 381426, at *2.
On May 10, 2019, after hearing from both Mr. McBride and Madison Security on the issue of whether Mr. McBride had requested reinstatement, the EEOC issued a Right to Sue letter. Right to Sue Letter (Howley Decl., Exh. 3).
The EEOC Investigation Memorandum and Madison Security’s own Response to the EEOC establish that Mr. McBride put the EEOC on notice of his claim that he inquired about re-employment and was told he was ineligible, that Madison Security addressed that claim in the EEOC proceedings, and that the EEOC considered the issue during its investigation of Mr. McBride’s EEOC charge. The facts alleged in the Amended Complaint are, therefore, completely consistent with those presented to the EEOC. Madison Security’s motion to dismiss should be denied for this reason alone.
The motion should also be denied because Mr. McBride’s claim that he was denied reinstatement is directly related to his claim of wrongful termination and Madison Security’s defense to that claim.
“Claims not raised in an EEOC complaint . . . may be brought in federal court if they are ‘reasonably related’ to the claim filed with the agency.” Williams, 458 F.3d at 70 (citing Butts v. City of New York Dep’t of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)). “‘A claim is considered reasonably related if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made.’” Id. (citation omitted); see also Butts, 990 F.2d at 1402.
In this case, an EEOC investigation of Mr. McBride’s claim that he was wrongfully terminated would have included an inquiry into whether he was denied an opportunity to apply for reinstatement. Indeed, the EEOC investigation necessarily included an inquiry into the issue of reinstatement, because Madison Security argued in its defense that Mr. McBride did not apply for reinstatement, while the other employee had asked for reinstatement. There is no need to speculate on this point, because the EEOC did, in fact, inquire into the issue of reinstatement during its investigation. See, e.g., Hudson v. Potter, 497 F. Supp. 2d 491, 503-04 (W.D.N.Y. 2007).
Having affirmatively raised the issue of reinstatement as a defense to Mr. McBride’s EEOC charge, Madison Security cannot now claim that the EEOC charge “would not have put the EEOC on notice” of the reinstatement issue. See Def. Mem. at 5. Accordingly, Madison Security’s motion to dismiss for failure to raise the issue of reinstatement in the EEOC should be denied.
Point II
The Facts Alleged in the Amended Complaint State Claims for Race Discrimination in Violation of Title VII and the New York State and City Human Rights Laws
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015).
In Littlejohn, the Second Circuit addressed the pleading requirements for a Title VII claim in light of the legal standard set forth in Iqbal and Twombly. The Second Circuit concluded that, “at the initial stage of the litigation – prior to the employer's coming forward with the claimed reason for its action – the plaintiff does not need substantial evidence of discriminatory intent.” Littlejohn, 795 at 311; see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). The Second Circuit emphasized “that at the pleading stage of an employment discrimination case, a plaintiff has a ‘minimal burden’ of alleging facts ‘suggesting an inference of discriminatory motivation.’” Vega, 801 F.3d at 85 (quoting Littlejohn, 795 at 31) (emphasis in original)).
Mr. McBride alleges that he was terminated and denied the opportunity to return to work for allegedly violating a company policy, while a similarly situated employee who was not Black was permitted to return to work after violating the same company policy. These allegations are sufficient to meet his burden of pleading facts suggesting an inference of discriminatory motive.
The Second Circuit has repeatedly held that “[a]n inference of discrimination can arise from circumstances including . . . ‘the more favorable treatment of employees not in the protected group.’” Littlejohn, 795 F.3d at 312 (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)); see also Vega, 801 F.3d at 88 (plaintiff “plausibly alleged that the adverse action was taken ‘because of’ his Hispanic ethnicity,” because he alleged that he was given additional work, “while his similarly-situated co-workers were not assigned additional work”).
Madison Security cites only two cases that were decided on a motion to dismiss. Neither case supports dismissal of Mr. McBride’s claims. In Patane v. Clark, 508 F.3d 106 (2d Cir. 2007), a sex discrimination complaint was dismissed because plaintiff did not allege “that any male employees were given preferential treatment when compared to Plaintiff.” Id. at 112. Similarly, in Thompson v. ABVI Goodwill Servs., No. 12 Civ. 6212 (CJS), 2013 WL 505491 (W.D.N.Y. Feb. 8, 2013), aff’d, 531 F. App’x 160 (2d Cir. 2013), an age discrimination claim was dismissed because the complaint did “not specifically refer to any younger employees, let alone ones who were similarly situated.” Id. at *3-4.
All of the other cases cited by Madison Security were decided on summary judgment or after trial. None of the cases supports dismissal of discrimination claims on a motion to dismiss where, as here, the plaintiff has identified a similarly situated co-worker, who is not in the protected class, and who received more favorable treatment. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (affirming judgment after trial, but noting that plaintiff, a Black man, established a prima facie case of race discrimination because his position as shift commander was given to a White man after he was fired); Tomassi v. Insignia Financial Group, Inc., 478 F.3d 111, 114 (2d Cir. 2007) (plaintiff established a prima facie case of age discrimination because her job duties were assigned to a younger employee after she was terminated); Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 113 (2d Cir. 2013) (reversing summary judgment dismissing discrimination claims because there was evidence that plaintiff was treated less well than her male colleagues); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (summary judgment appropriate because plaintiff did not offer any evidence that similarly situated co-workers received more favorable treatment); Lopez v. Guardian Serv. Indus., No. 08 Civ. 8569, 2012 U.S. Dist. LEXIS 18523, at *14-15 (S.D.N.Y. Feb. 10, 2012) (same); Nixon-Tinkelman v. NYC Dep’t of Health & Mental Hygiene, Index No. 113339/2007, 2011 N.Y. Misc. LEXIS 3869, at *3 (Sup. Ct. N.Y. Co. July 27, 2011) (same).
Conclusion
For all the foregoing reasons, plaintiff requests entry of an Order denying defendant’s motion in its entirety and granting such other relief as the Court deems just and proper.
Dated: New York, New York
May 15, 2020
THE HOWLEY LAW FIRM P.C.
By: John J.P. Howley
Attorneys for Plaintiff
225 West 34th Street, 9th Floor
New York, New York 10122
(212) 601-2728