14‐2265‐cv
Vega v. Hempstead Union Free School District, et al.
14‐2265‐cv
Vega v. Hempstead Union Free School District, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2014
(Submitted: February 25, 2015 Decided: September 2, 2015)
Docket No. 14‐2265‐cv
CARLOS VEGA,
Plaintiff‐Appellant,
v.
HEMPSTEAD UNION FREE SCHOOL DISTRICT and CHY DAVIDSON and DAGOBERTO
ARTILES (sued in their individual capacities pursuant to 42 U.S.C. § 1983),
Defendants‐Appellees.*
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
Before:
KATZMANN, Chief Judge, and WALKER and CHIN, Circuit Judges.
* The Clerk of the Court is directed to amend the caption to conform to the above.
Appeal from a judgment of the United States District Court for the
Eastern District of New York (Feuerstein, J.) dismissing plaintiff‐appellantʹs
employment discrimination and retaliation claims. The district court granted
defendants‐appelleesʹ motion for judgment on the pleadings, holding that (1)
certain claims were time‐barred, (2) claims of retaliation for complaining of
discrimination are not actionable under 42 U.S.C. § 1983, (3) plaintiff‐appellant
had not ʺdemonstrated that he suffered an adverse employment actionʺ and
therefore he had not ʺestablished a prima facie case of discrimination,ʺ and (4)
plaintiff‐appellant had failed, with respect to his retaliation claims, ʺto establish
an adverse action taken against himʺ or ʺa connection between the alleged
retaliatory acts and his ethnicity.ʺ
VACATED AND REMANDED.
Kathleen A. Tirelli, Scott Michael Mishkin, P.C.,
Islandia, New York, for Plaintiff‐Appellant.
David F. Kwee, Ingerman Smith, L.L.P., Hauppauge,
New York, for Defendants‐Appellees.
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CHIN, Circuit Judge:
In this case, Carlos Vega, a high school math teacher in the
Hempstead Union Free School District (the ʺDistrictʺ), brings discrimination and
retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (ʺTitle VIIʺ), and 42 U.S.C. § 1983 against the District and two principals,
Chy Davidson and Dagoberto Artiles, in their individual capacities (collectively
ʺDefendantsʺ). Vega alleges that Defendants discriminated against him because
of his ʺHispanic ethnicityʺ and that they retaliated against him after he
complained of discrimination.
The district court (Feuerstein, J.) granted Defendantsʹ motion for
judgment on the pleadings under Federal Rule of Civil Procedure 12(c),
concluding that (1) certain claims were time‐barred, (2) claims of retaliation for
complaining of discrimination are not actionable under § 1983, (3) Vega had not
ʺdemonstrated that he suffered an adverse employment actionʺ and therefore he
had not ʺestablished a prima facie case of discrimination,ʺ and (4) Vega had
failed, with respect to his claims of retaliation, ʺto establish an adverse action
taken against himʺ or ʺa connection between the alleged retaliatory acts and his
ethnicity.ʺ We hold that: (1) certain of Vegaʹs claims were not time‐barred, as the
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district court had concluded; (2) retaliation claims are actionable under § 1983; (3)
a Title VII plaintiff need not plead a prima facie case of discrimination to survive a
motion to dismiss; and (4) Vega has sufficiently pleaded discrimination and
retaliation claims. Accordingly, we vacate and remand for further proceedings
consistent with this opinion.
STATEMENT OF THE CASE
A. The Facts
The facts alleged in the complaint are assumed to be true. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (ʺ[A] judge ruling on a defendantʹs
motion to dismiss a complaint must accept as true all of the factual allegations
contained in the complaint.ʺ (internal quotation marks omitted)). They may be
summarized as follows:
The District operates seven elementary schools, one middle school,
and one high school (the ʺHigh Schoolʺ) in Hempstead, New York. As of the
filing of his complaint, Vega had taught math for twenty‐four years, including
the last sixteen years in the District at the High School. Vega is Hispanic, of
Puerto Rican origin, and is fluent in both English and Spanish. Vega received
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tenure in the District in 1999, and for many years he received positive
performance reviews and consistent pay increases.
Davidson was the principal at the High School from 2006 to 2011,
and Artiles has been a principal at the High School since 2011. During their
employment in the District, Davidson and Artiles were responsible for personnel
decisions at the High School, including hiring, firing, evaluating, and
disciplining employees.
1. The Alleged Discrimination
Beginning in 2008, the District took a number of actions that Vega
contends were discriminatory:
Beginning in 2008, Vega was assigned an ʺincreased percentage of students
that were Spanish speaking and were not fluent in English,ʺ requiring
Vega to do ʺtwice as much workʺ in preparing and teaching his classes first
in English and then in Spanish, without extra compensation. App. at 11‐
12.1
When he complained later in 2008, Vega was assigned ʺa mixture of
bilingual classes and English classes, instead of all bilingual,ʺ and he was
still not compensated for the extra preparation time. Id. at 12.
Vega was unable to use his regular classroom for his first period class in
October 2010 and had to teach in the ʺexcessively noisyʺ media center
without a blackboard. Id.
1 The Districtʹs policy provided that teachers were not to be assigned more than
three class preparations per semester. Vega was effectively assigned more than three
preparations per semester, as he had to prepare his lessons in both Spanish and English.
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Vega was assigned a classroom with a ʺUniversity of Puerto Ricoʺ banner
above the door. Id. at 14‐15.
Vega attempted to enter his studentsʹ grades into the schoolʹs computer
system in October 2011, but his password had been deactivated. Vega had
to use his non‐Hispanic colleagueʹs password to log into the computer
system to enter his grades.
The District twice attempted to transfer Vega out of the High School:
o First, on June 24, 2011, Davidson attempted to transfer Vega to the
Districtʹs middle school. On July 11, 2011, Vega objected to
Davidsonʹs proposed transfer and told the Assistant Superintendent
that he should not be transferred because he had a better percentage
of passing students than most of his co‐workers. On September 21,
2001, the District rescinded the transfer and Vega continued teaching
at the High School.
o Second, on June 18, 2012, Vega received a letter from the District
approving his transfer to the Academy of Math and Sciences ‐‐
whose principal is Hispanic ‐‐ even though he had never requested
this transfer. Vega was never transferred.
Vega alleges that his non‐Hispanic colleagues were not subjected to such actions.
2. The Alleged Retaliation
On August 8, 2011, Vega filed a charge with the Equal Employment
Opportunity Commission (the ʺEEOCʺ), alleging that the District had
discriminated against him based on his ethnicity in violation of Title VII. Vega
amended the charge twice, first on January 4, 2012 and then on July 2, 2012,
adding further allegations of discrimination.
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After Vega filed his initial charge, and, in some instances, the
amended charges, Defendants engaged in a number of actions that Vega alleges
were retaliatory:
For the 2011‐12 school year, Vega ʺwas assigned classes with students who
[were] notoriously excessively absent.ʺ Id. at 16. Before 2011, consistently
roughly 20% of Vegaʹs students were excessively absent, but during the
2011‐12 school year, that number jumped to 75%. Chronic absence leads to
poor student performance, which in turn reflects poorly on a teacherʹs
performance.
The District changed the curriculum for one of Vegaʹs classes in November
2011. The District notified all non‐Hispanic teachers of the curriculum
change, but it did not notify Vega.
On March 12, 2012, $738.92 was improperly deducted from Vegaʹs
paycheck for sick time, even though he had leftover sick time in his ʺsick
day bank.ʺ Id. at 17. Vega complained to the Districtʹs Business Office,
which acknowledged the mistake, and while he was repaid a portion of
the deducted amount in September, he was never repaid the full amount
that was due to him.
In February 2013, Vega received his first negative performance review in
his sixteen years teaching at the High School. Artiles observed Vegaʹs
classroom performance and gave him 1.4 out of a 4‐point maximum in his
review. Vega was held to a different evaluation process than his
colleagues, and he was the only teacher to receive a negative performance
score during the evaluation period.2
2 The Districtʹs deactivation of Vegaʹs computer password took place in October
2011 and its attempt to transfer him to the Academy of Math and Science took place in June
2012, both after Vega filed his initial charge with the EEOC in August 2011. Nonetheless, he
does not allege that either action was retaliatory.
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B. Proceedings Below
On September 21, 2012, the EEOC dismissed Vegaʹs charge and
issued him a right to sue notice. Vega commenced this action below, filing a pro
se complaint on December 14, 2012. With the assistance of counsel, he filed an
amended complaint (the ʺComplaintʺ) on April 3, 2013. The Complaint alleges
discriminatory and retaliatory treatment in violation of Title VII and 42 U.S.C.
§ 1983.
Defendants moved pursuant to Federal Rule of Civil Procedure 12(c)
for judgment on the pleadings. On May 22, 2014, the district court granted
Defendantsʹ motion and dismissed the Complaint in its entirety. Vega v.
Hempstead Union Free Sch. Dist., No. 12‐CV‐6158 (SJF), 2014 WL 2157536 (E.D.N.Y.
May 22, 2014).
As an initial matter, in a footnote, the district court dismissed certain
of Vegaʹs claims ‐‐ without specifying which ‐‐ under both Title VII and § 1983 as
time‐barred. Id. at *2 n.1. The district court then addressed the discrimination
claims against the District, concluding, after reviewing the three‐part burden‐
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802‐04
(1973), that ʺ[b]ecause plaintiff has not demonstrated that he suffered an adverse
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employment action, he has not established a prima facie case of discrimination
and consequently, his Title VII and § 1983 claims against the District must fail.ʺ
Vega, 2014 WL 2157536, at *6. Next, the district court dismissed the § 1983 claims
against Davidson and Artiles, holding, with respect to Davidson, that Vega had
not ʺestablishedʺ an adverse employment action or that Davidsonʹs conduct was
ʺon account of [Vegaʹs] ethnicity,ʺ id. at *7, and, with respect to Artiles, that a
retaliation claim could not be brought under the Fourteenth Amendment (or
§ 1983) when the protected activity involved race discrimination, id. at *8.3
Finally, the district court dismissed the Title VII retaliation claims against the
District on the grounds that Vega had failed ʺto establish an adverse action taken
against him for filing the [EEOC] chargeʺ and because of ʺthe lack of a connection
between the alleged retaliatory acts and his ethnicity.ʺ Id. at *9.
Judgment was entered on May 28, 2014. This appeal followed.
DISCUSSION
We review de novo a district courtʹs decision to grant a motion for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). In deciding Rule 12(c)
3 The district court also dismissed claims against Davidson and Artiles in their
ʺofficial capacities,ʺ Vega, 2014 WL 2157536, at *6, but no such claims are alleged in the
Complaint.
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motions, we employ the same standard applicable to Rule 12(b)(6) motions to
dismiss, ʺaccept[ing] all factual allegations in the [C]omplaint as true and
draw[ing] all reasonable inferences in [the nonmoving partyʹs] favor.ʺ L‐7
Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011) (second alteration
in original) (internal quotation marks omitted).
We address (a) the timeliness of Vegaʹs claims; (b) the viability of
retaliation claims under § 1983; (c) the sufficiency of the pleading of the
discrimination claims; and (d) the sufficiency of the pleading of the retaliation
claims.
A. Timeliness of Claims
1. Applicable Law
Title VII requires that individuals aggrieved by acts of
discrimination file a charge with the EEOC within 180 or, in states like New York
that have local administrative mechanisms for pursuing discrimination claims,
300 days ʺafter the alleged unlawful employment practice occurred.ʺ 42 U.S.C.
§ 2000e‐5(e)(1). In National Railroad Passenger Corp. v. Morgan, the Supreme Court
made clear that the word ʺpracticeʺ in this context refers to ʺa discrete act or
single ʹoccurrence,ʹʺ and that ʺa discrete retaliatory or discriminatory act
‐ 10 ‐
ʹoccurredʹ on the day that it ʹhappened.ʹʺ 536 U.S. 101, 110‐11 (2002).
Consequently, ʺdiscrete discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed charges.ʺ Id. at 113. At
the same time, however, identifiable discrete actions are not time‐barred simply
because they occurred as part of an ongoing pattern of discrimination or
retaliation that began outside the statutory period: ʺDiscrete acts such as
termination, failure to promote, denial of transfer, or refusal to hire are easy to
identify. Each incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable ʹunlawful employment
practice.ʹʺ Id. at 114. Accordingly, claims tied to discrete acts in an ongoing
adverse employment action that occurred within the statute of limitations period
are not time‐barred.4
Claims under § 1983 are governed by a three‐year statute of
limitations in New York. See Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir.
2002) (ʺIn section 1983 actions, the applicable limitations period is found in the
general or residual state statute of limitations for personal injury actions, and the
parties agree that in this case that period is three years.ʺ (alterations omitted)
4 While the continuing violation doctrine is recognized in certain circumstances
under Title VII, Vega did not allege it here. See Washington v. Cty. of Rockland, 373 F.3d 310, 317‐
18 (2d Cir. 2004).
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(citation omitted) (internal quotation marks omitted) (citing N.Y. C.P.L.R.
§ 214(5))). Hence, a plaintiff asserting a claim of discrimination under § 1983
must file suit within three years of the adverse employment action. The
considerations set forth by the Supreme Court in National Railroad apply to § 1983
employment claims as well. See, e.g., Washington v. Cty. of Rockland, 373 F.3d 310,
318 (2d Cir. 2004) (citing National Railroad and affirming dismissal of § 1983
employment discrimination claims as, inter alia, untimely).
2. Application
Without specifying the claims at issue, the district court held that
ʺany events which occurred prior to October 12, 2010 are time‐barred with
respect to his Title VII claim,ʺ and that ʺany allegations in support of his § 1983
claim which precede December 14, 2009 are time‐barred.ʺ Vega, 2014 WL
2157536, at *2 n.1.
Although the district court properly determined that discrete acts
occurring before October 12, 2010 were time‐barred under Title VII and discrete
acts occurring before December 14, 2009 were time‐barred under § 1983, it
appears that the district court dismissed as time‐barred Vegaʹs claim that he was
assigned a disproportionate amount of work on a discriminatory basis. In fact,
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the Complaint alleges that in or about 2008, Vega ʺbegan to be assigned classes
with an increased percentage of students that were Spanish speaking and were
not fluent in English,ʺ resulting in ʺtwice as much workʺ for him. App. at 11.
The Complaint further alleges that when he complained in 2008, Vega was
assigned ʺa mixture of bilingual classes and English classes, instead of all
bilingual.ʺ Id. at 12. Yet, the district court did not discuss the disproportionate
work claims in its analysis of the sufficiency of Vegaʹs claims.
To the extent that Vega contends that he was assigned extra work on
a discriminatory or retaliatory basis after December 14, 2009 with respect to his
§ 1983 claims and after October 12, 2010 with respect to his Title VII claims, the
claims are not untimely. To the extent he received extra work on a
discriminatory or retaliatory basis after these dates, the assignments were
discrete acts that occurred within the limitations periods. In fact, Vega appears
to allege later such assignments, as the Complaint alleges that in or about 2008 he
ʺbegan to be assigned classesʺ with more Spanish‐speaking students. Id. at 11
(emphasis added). While the Complaint is not precise in terms of dates, it seems
to suggest an ongoing practice. Moreover, in his original pro se complaint, Vega
alleges that Defendants are ʺstill committing these acts against me.ʺ Id. at 23
‐ 13 ‐
(emphasis added); see also id. at 24 (ʺThe Hempstead Union Free School District
wanted to force me to teach only the Hispanic student math population at
Hempstead High School. When I showed that I was against it because it was
discriminatory, they retaliated and continue to do so whenever they get a chance.ʺ
(emphasis added)).
Accordingly, to the extent that Vega alleges he was given a
disproportionate amount of work on a discriminatory or retaliatory basis after
the relevant dates, the claims are not time‐barred, as ʺ[e]ach incident of
discrimination [or retaliation] . . . constitutes a separate actionable ʹunlawful
employment practice.ʹʺ Morgan, 536 U.S. at 114.5
B. Viability of Retaliation Claims Under § 1983
The district court dismissed Vegaʹs retaliation claims against Artiles,
holding that ʺ[t]here is no authority for a retaliation claim under the Fourteenth
5 Defendants argue that Vega failed to preserve his disproportionate workload
claim. We disagree. In both his opposition to the motion for judgment on the pleadings below
and his opening brief on appeal, Vega argued that ʺsince on or about 2008, and continuing
currently, Plaintiff has been assigned classes that are increasingly comprised of students that do
not speak English.ʺ Vega v. Hempstead Union Free Sch. Dist., 12‐CV‐6158, ECF Doc. No. 23 (ʺVega
Opp. to MJPʺ), at 2 (emphasis added); accord Appellantʹs Br. at 10. In his opposition to the
motion for judgment on the pleadings, he added, ʺ[a]s pled, Plaintiffʹs complaint timely and
properly alleges that Plaintiff was denied a classroom to teach in in October 2010. After this
event, all of the events that were alleged in Plaintiff’s complaint, followed in time, up to and
including the negative evaluation Plaintiff received from Artiles, in February 2013.ʺ Vega Opp.
to MJP, at 6.
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Amendment when the protected activity is a complaint of race or age
discrimination.ʺ Vega, 2014 WL 2157536, at *8 (quoting Roberts v. Judicial Depʹt,
No. 99‐CV‐014(RNC), 2001 WL 777481, at *4 (D. Conn. Mar. 28, 2001)) (internal
quotation marks omitted). We acknowledge that there has been considerable
confusion surrounding the viability of retaliation claims under § 1983, and we
now clarify that retaliation claims alleging an adverse action because of a
complaint of discrimination are actionable under § 1983.
Section 1983 does not explicitly address retaliation claims, and it is
not apparent from the language of § 1983 alone whether an employment
retaliation claim tied to a ʺdeprivation of any rights, privileges, or immunitiesʺ
under the Equal Protection Clause of the Fourteenth Amendment is actionable
under the statute. See 42 U.S.C. § 1983. We have sent conflicting signals in this
respect. In Bernheim v. Litt, on which the district court relied, we observed that
ʺwe know of no court that has recognized a claim under the equal protection
clause for retaliation following complaints of racial discrimination.ʺ 79 F.3d 318,
323 (2d Cir. 1996). We declined ʺto break new constitutional groundʺ in that
case, reasoning that retaliation claims based on complaints of racial
discrimination can be brought under Title VII, which the plaintiff had chosen not
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to invoke. Id. We dismissed the plaintiffʹs retaliation claims brought under the
Equal Protection Clause and § 1983. Id. Thereafter, district courts in our Circuit
relied on Bernheim to dismiss claims of retaliation based on adverse action taken
after a complaint of discrimination. See, e.g., Worthington v. Cty. of Suffolk, No. 02‐
CV‐723(DLI)(ARL), 2007 WL 2115038, at *2 (E.D.N.Y. July 20, 2007); Lange v.
Town of Monroe, 213 F. Supp. 2d 411, 419‐20 (S.D.N.Y. 2002).
In 2010, however, in Hicks v. Baines, we permitted retaliation claims
brought by state employees to proceed under § 1983, even though the adverse
treatment was allegedly in retaliation for their participation in discrimination
investigations and proceedings. 593 F.3d 159, 171 (2d Cir. 2010). We explained:
[The defendant] argues that plaintiffsʹ § 1983 claim alleging a
violation of the Equal Protection Clause of the Fourteenth
Amendment should be dismissed for failure to offer evidence
that they were treated differently than employees who were
similarly situated. It is certainly true that our case law
requires a plaintiff seeking relief pursuant to the Equal
Protection Clause to ʺshow they were selectively treated
compared with other similarly situated employees, and that
selective treatment was based on impermissible
considerations such as race, [or] religion.ʺ . . . The premise of
this lawsuit is that plaintiffs were treated differently ‐‐ that is,
they suffered retaliation ‐‐ on the basis of their participation in
discrimination investigations and proceedings. That
participation obviously constitutes an ʺimpermissibleʺ reason
to treat an employee differently.
Id. at 171 (second alteration in original) (citation omitted).
‐ 16 ‐
In Hicks we did not discuss or cite Bernheim.6 District courts in our
Circuit have noted that ʺ[t]his discrepancy in the Second Circuitʹs case law
remains unresolved.ʺ See, e.g., Giscombe v. N.Y.C. Depʹt of Educ., 39 F. Supp. 3d
396, 405 (S.D.N.Y. 2014); accord Cowan v. City of Mount Vernon, No. 12‐CV‐
6881(KMK), 2015 WL 1400088, at *16 (S.D.N.Y. Mar. 27, 2015).
We conclude that a claim of retaliation for a complaint that alleged
discrimination is actionable under § 1983 for the following reasons.
First, our decision in Hicks squarely recognized that an employerʹs
retaliatory action in response to an employeeʹs participation in discrimination
investigations and proceedings constituted an ʺʹimpermissibleʹ reason to treat an
employee differentlyʺ for purposes of the Equal Protection Clause. 593 F.3d at
171 (quoting Knight v. Conn. Depʹt of Pub. Health, 275 F.3d 156, 166 (2d Cir. 2001));
see also Giscombe, 39 F. Supp. 3d at 405 (recognizing Hicks as ʺallow[ing] a § 1983
retaliation claim to proceed on an equal protection theoryʺ). In Bernheim, we did
not directly address the question because we were reluctant to ʺbreak new
6 Additionally, in a recent non‐precedential decision, we relied on Hicks (again
without discussing or citing Bernheim) for the proposition that a plaintiff can bring a retaliation
claim under § 1983 based on an equal protection theory. Lewis v. City of Norwalk, 562 F. Appʹx
25, 29 & n.5 (2d Cir. 2014) (summary order) (ʺTo succeed on a retaliation claim under Title VII or
§ 1983, the plaintiff bears the initial burden of establishing a prima facie case by showing
[retaliation for complaining about discriminatory conduct] . . . .ʺ (citing Hicks, 593 F.3d at 164)).
‐ 17 ‐
constitutional groundʺ when there was an apparent remedy for relief under Title
VII. 79 F.3d at 323. In fact, however, Title VII did not provide a means for relief
in that case because the claims were against the individual supervisor, the
principal of the school where the plaintiff was a teacher. Id. at 321; see Wrighten v.
Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam) (ʺ[I]ndividuals are not
subject to liability under Title VII.ʺ). Hence, Bernheim was decided on the basis of
an incorrect premise.
Second, we have recognized that once the color of state law
requirement is met, except for the issue of individual liability, an ʺequal
protection claim parallels [a plaintiffʹs] Title VII claim.ʺ Feingold v. New York, 366
F.3d 138, 159 (2d Cir. 2004). There is no sound reason to deviate from this
principle for a retaliation claim, when the retaliatory action is taken because a
plaintiff complains of or otherwise opposes discrimination.
Third, more substantively, retaliation is a form of discrimination. As
the Supreme Court recognized in the Title IX context:
Retaliation against a person because that person has
complained of sex discrimination is another form of
intentional sex discrimination encompassed by Title IXʹs
private cause of action. Retaliation is, by definition, an
intentional act. It is a form of ʺdiscriminationʺ because the
complainant is being subjected to differential treatment.
‐ 18 ‐
Moreover, retaliation is discrimination ʺon the basis of sexʺ
because it is an intentional response to the nature of the
complaint: an allegation of sex discrimination. We conclude
that when a funding recipient retaliates against a person
because he complains of sex discrimination, this constitutes
intentional ʺdiscriminationʺ ʺon the basis of sex,ʺ in violation
of Title IX.
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173‐74 (2005) (citations omitted).
This reasoning applies with equal force to the employment context. When a
supervisor retaliates against an employee because he complained of
discrimination, the retaliation constitutes intentional discrimination against him
for purposes of the Equal Protection Clause.
Accordingly, we hold that a state employee may bring a retaliation
claim under § 1983 against a supervisor who, acting under color of law, retaliates
against him for opposing discrimination in the terms of his employment. Hence,
the district court erred in dismissing Vegaʹs § 1983 retaliation claim against
Artiles on the ground that no such claim was available under § 1983.
C. Pleading of Discrimination Claims
The district courtʹs decision raises the following issues with respect
to the pleading of the discrimination claims: (1) the applicability of McDonnell
‐ 19 ‐
Douglas at the pleading stage; (2) the pleading standards for discrimination
claims; and (3) the application of the proper pleading standards in this case.
1. The Applicability of McDonnell Douglas
In 1973, the Supreme Court adopted a three‐stage, burden‐shifting
framework for analyzing employment discrimination cases under Title VII where
a plaintiff alleges disparate treatment but does not have direct evidence of
discrimination. McDonnell Douglas, 411 U.S. 792. Under the test, a plaintiff must
first establish a prima facie case of discrimination by showing that: ʺ(1) she is a
member of a protected class; (2) she is qualified for her position; (3) she suffered
an adverse employment action; and (4) the circumstances give rise to an
inference of discrimination.ʺ Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.
2000) (citing McDonnell Douglas, 411 U.S. at 802). Once a plaintiff has established
a prima facie case, a presumption arises that more likely than not the adverse
conduct was based on the consideration of impermissible factors. Texas Depʹt of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253‐54 (1981). The burden then shifts to the
employer to ʺarticulate some legitimate, nondiscriminatory reasonʺ for the
disparate treatment. McDonnell Douglas, 411 U.S. at 802. If the employer
articulates such a reason for its actions, the burden shifts back to the plaintiff to
‐ 20 ‐
prove that the employerʹs reason ʺwas in fact pretextʺ for discrimination. Id. at
804; see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000) (ʺIf such a reason
is proffered, the burden shifts back to the plaintiff to prove that discrimination
was the real reason for the employment action.ʺ).
In 2002, the Supreme Court held in Swierkiewicz v. Sorema N.A. that
ʺan employment discrimination plaintiff need not plead a prima facie case of
discriminationʺ at the motion to dismiss stage. 534 U.S. 506, 515 (2002). The
Court ruled that the ʺprima facie caseʺ requirement of McDonnell Douglas applied
only at the summary judgment phase because it ʺis an evidentiary standard, not
a pleading requirement.ʺ Id. at 510. As the Court explained, ʺunder a notice
pleading system, it is not appropriate to require a plaintiff to plead facts
establishing a prima facie case because the McDonnell Douglas framework does
not apply in every employment discrimination case.ʺ Id. at 511. ʺMoreover, the
precise requirements of a prima facie case can vary depending on the context and
were ʹnever intended to be rigid, mechanized, or ritualistic.ʹʺ Id. at 512 (quoting
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
In Swierkiewicz, the Court relied in part on the long‐used minimal
pleading standard adopted in Conley v. Gibson, 355 U.S. 41 (1957). See
‐ 21 ‐
Swierkiewicz, 534 U.S. at 512‐14. In Iqbal and Twombly, however, the Court
abandoned Conleyʹs ʺno set of factsʺ test and adopted instead a plausibility
standard of pleading. Ashcroft v. Iqbal, 556 U.S. 662, 669‐70 (2009); Twombly, 550
U.S. at 562‐63. As a consequence, a question arose as to the continued viability of
Swierkiewicz. See, e.g., Brown v. Daikin Am. Inc., 756 F.3d 219, 228 & n.10 (2d Cir.
2014) (noting suggestion that question was not ʺentirely settledʺ and declining to
decide whether, after Twombly, Title VII plaintiff was required to plead facts
sufficient to establish prima facie case under McDonnell Douglas); Fowler v. UPMC
Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (questioning continued vitality of
Swierkiewicz).
In EEOC v. Port Authority of New York & New Jersey, we answered the
question in a different context. 768 F.3d 247 (2d Cir. 2014). We held as follows:
[U]ncertainty lingered as to whether Twombly and Iqbal
overruled Swierkiewicz entirely, or whether Swierkiewicz
survives only to the extent that it bars the application of a
pleading standard to discrimination claims that is heightened
beyond Twomblyʹs and Iqbalʹs demand for facial plausibility.
We reject the first proposition. Twomblyʹs endorsement of
Swierkiewicz mandates, at a minimum, that Swierkiewiczʹs
rejection of a heightened pleading standard in discrimination
cases remains valid.
. . . [W]e conclude that, while a discrimination
complaint need not allege facts establishing each element of a
prima facie case of discrimination to survive a motion to
‐ 22 ‐
dismiss, see Swierkiewicz, 534 U.S. at 510 (noting that the prima
facie case requirement is an evidentiary standard), it must at a
minimum assert nonconclusory factual matter sufficient to
ʺʹnudge[ ] [its] claimsʹ . . . ʹacross the line from conceivable to
plausibleʹʺ to proceed, Iqbal, 556 U.S. at 680 (quoting Twombly,
550 U.S. at 570).
Id. at 254 (alterations in original) (citation omitted). As we recently noted, EEOC
v. Port Authority was an Equal Pay Act case and not a Title VII case. Littlejohn v.
City of New York, No. 14‐1395‐cv, 2015 WL 4604250, at *6 n.7 (2d Cir. Aug. 3,
2015). Nonetheless, the language quoted above from EEOC v. Port Authority is
broad, and if Swierkiewicz survives for Equal Pay Act cases it surely survives for
Title VII cases.
More importantly, our decision in Littlejohn makes clear that a
plaintiff is not required to plead a prima facie case under McDonnell Douglas, at
least as the test was originally formulated, to defeat a motion to dismiss. Rather,
because ʺa temporary ʹpresumptionʹ of discriminatory motivationʺ is created
under the first prong of the McDonnell Douglas analysis, a plaintiff ʺneed only
give plausible support to a minimal inference of discriminatory motivation.ʺ Id.
‐ 23 ‐
at *4, 8 (referring ʺto the reduced requirements that arise under McDonnell
Douglas in the initial phase of a Title VII litigationʺ).7
Accordingly, here, the district court erred when it granted
Defendantsʹ motion for judgment on the pleadings on the grounds that Vega had
ʺnot established a prima facie case of discrimination.ʺ Vega, 2014 WL 2157536, at
*6. At the pleadings stage of the litigation, Vega was not required to plead a
prima facie case of discrimination as contemplated by the McDonnell Douglas
framework. See Littlejohn, 2015 WL 4604250, at *8 (referring to ʺthe reduced
prima facie requirements that arise under McDonnell Douglas in the initial phase
of a litigationʺ). We hold that the district court held Vega to the wrong pleading
standards.8
7 The district courtʹs decision was filed before our ruling in EEOC v. Port Authority,
and, of course, before our ruling in Littlejohn. Nonetheless, the district court did not discuss
Swierkiewicz or acknowledge that there was a question as to its continued vitality. On appeal,
Defendants continue to argue that the district court was correct in requiring Vega to plead a
prima facie case, still suggesting that Swierkiewicz has been ʺdiscreditedʺ in this respect. To be
clear, we do not hold that a plaintiff in a Title VII case may not rely on the McDonnell Douglas
formulation in pleading a claim of discrimination; we simply hold that a plaintiff is not required
to do so. See, e.g., Rodriguez‐Reyes v. Molina‐Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013) (ʺ[T]he
elements of a prima facie case may be used as a prism to shed light upon the plausibility of the
claim.ʺ).
8 To compound the problem, the district court held that Vega had to
ʺdemonstrate[]ʺ an adverse employment action and that he had to ʺestablish[]ʺ a prima facie case
of discrimination. Vega, 2014 WL 2157536, at *6. Of course, at the pleading stage, Vega was not
required to ʺdemonstrateʺ or ʺestablishʺ discrimination; he was required only to plead a claim
‐ 24 ‐
2. Pleading Standards for Discrimination Claims
We turn to the question of what a plaintiff must plead in an
employment discrimination case to state a claim upon which relief may be
granted.
a. Title VII
In Littlejohn, we held that at the pleadings stage of an employment
discrimination case, a plaintiff has a ʺminimal burdenʺ of alleging facts
ʺsuggesting an inference of discriminatory motivation.ʺ 2015 WL 4604250, at *7.
While we made clear that Iqbal applies to employment discrimination cases, we
also clarified that Iqbalʹs plausibility requirement ʺdoes not affect the benefit to
plaintiffs pronounced in the McDonnell Douglas quartet.ʺ Id. We ruled
nonetheless that the facts alleged in the complaint must provide ʺat least minimal
support for the proposition that the employer was motivated by discriminatory
intent.ʺ Id. at *8. The question remains what a plaintiff must allege to meet this
minimal burden.
The starting point is the statute. See Iqbal, 556 U.S. at 675 (ʺ[W]e
begin by taking note of the elements a plaintiff must plead to state a claim . . . .ʺ).
upon which relief could be granted. See, e.g., Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229,
237 (2d Cir. 2007).
‐ 25 ‐
Title VII makes it unlawful for an employer ʺto 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 individualʹs race, color, religion, sex, or national
origin.ʺ 42 U.S.C. § 2000e‐2(a)(1). Title VII thus requires a plaintiff asserting a
discrimination claim to allege two elements: (1) the employer discriminated
against him (2) because of his race, color, religion, sex, or national origin. Id.
As to the first element, an employer discriminates against a plaintiff
by taking an adverse employment action against him. ʺA plaintiff sustains an
adverse employment action if he or she endures a materially adverse change in
the terms and conditions of employment.ʺ Galabya v. N.Y.C. Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000) (internal quotation marks omitted). ʺAn adverse
employment action is one which is more disruptive than a mere inconvenience or
an alteration of job responsibilities.ʺ Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.
2003) (internal quotation marks omitted). ʺExamples of materially adverse
changes include termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices unique to a
‐ 26 ‐
particular situation.ʺ Id. (alteration omitted) (internal quotation marks omitted).
We have held that the assignment of ʺa disproportionately heavy workloadʺ can
constitute an adverse employment action. Feingold, 366 F.3d at 152‐53.
As to the second element, an action is ʺbecause ofʺ a plaintiffʹs race,
color, religion, sex, or national origin where it was a ʺsubstantialʺ or ʺmotivatingʺ
factor contributing to the employerʹs decision to take the action. See Price
Waterhouse v. Hopkins, 490 U.S. 228, 249 (1989) (plurality opinion), superseded on
other grounds by statute, Civil Rights Act of 1991, Pub. L. No. 102‐166, 105 Stat.
1071; Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (ʺ[A] plaintiff need only
present sufficient evidence for a reasonable jury to conclude, by a preponderance
of the evidence, that ʹrace, color, religion, sex, or national origin was a motivating
factor for any employment practice.ʹʺ (emphasis added) (quoting 42 U.S.C.
§ 2000e‐2(m)). While the Supreme Court has held that a plaintiff alleging age
discrimination under the Age Discrimination in Employment Act must allege
ʺthat age was the ʹbut‐forʹ cause of the employerʹs adverse action,ʺ Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177 (2009), the ʺmotivating factorʺ standard still
applies to discrimination claims based on race, color, religion, sex, or national
origin, see Leibowitz v. Cornell Univ., 584 F.3d 487, 498 n.2 (2d Cir. 2009) (ʺTitle VII,
‐ 27 ‐
on the other hand, does authorize a ʹmixed motiveʹ discrimination claim.ʺ).
Hence, a plaintiff in a Title VII case need not allege ʺbut‐forʺ causation.
Under Iqbal and Twombly, then, in an employment discrimination
case, a plaintiff must 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.
The question remains as to what ʺplausibilityʺ means in the context
of employment discrimination claims. Several considerations guide the inquiry.
First, as the Supreme Court explained in Iqbal, a plaintiff must plead
ʺfactual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.ʺ 556 U.S. at 678. While ʺdetailed
factual allegationsʺ are not required, ʺa formulaic recitation of the elements of a
cause of action will not do.ʺ Twombly, 550 U.S. at 555. At the same time, the
court must assume the factual allegations in the complaint to be true, ʺeven if
[they are] doubtful in fact,ʺ id., and a complaint may not be dismissed ʺbased on
a judgeʹs disbelief of a complaintʹs factual allegations,ʺ Neitzke v. Williams, 490
U.S. 319, 327 (1989); see also Iqbal, 556 U.S. at 679 (ʺWhen there are well‐pleaded
factual allegations, a court should assume their veracity . . . .ʺ).
‐ 28 ‐
Second, in making the plausibility determination, the court is to
ʺdraw on its judicial experience and common sense.ʺ Iqbal, 556 U.S. at 679. Of
course, the court must proceed at all times in a fair and deliberative fashion, alert
to any unconscious bias that could affect decisionmaking.9 In making the
plausibility determination, the court must be mindful of the ʺelusiveʺ nature of
intentional discrimination. See Burdine, 450 U.S. at 255 n.8. As we have
recognized, ʺclever men may easily conceal their motivations.ʺ Robinson v. 12
Lofts Realty, Inc., 610 F.2d 1032, 1043 (2d Cir. 1979) (internal quotation marks
omitted). Because discrimination claims implicate an employerʹs usually
unstated intent and state of mind, see Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.
1985), rarely is there ʺdirect, smoking gun, evidence of discrimination,ʺ Richards
v. N.Y.C. Bd. of Educ., 668 F. Supp. 259, 265 (S.D.N.Y. 1987), affʹd, 842 F.2d 1288
(2d Cir. 1988). Instead, plaintiffs usually must rely on ʺbits and piecesʺ of
information to support an inference of discrimination, i.e., a ʺmosaicʺ of
intentional discrimination. Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998),
abrogated in part on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1988). Again, as we made clear in Littlejohn, at the initial stage of a litigation, the
9 In the case at hand, we do not question the district courtʹs fairness in
approaching its work.
‐ 29 ‐
plaintiffʹs burden is ʺminimalʺ ‐‐ he need only plausibly allege facts that provide
ʺat least minimal support for the proposition that the employer was motivated by
discriminatory intent.ʺ 2015 WL 4604250, at *8.
Finally, courts must remember that ʺ[t]he plausibility standard is not
akin to a ʹprobability requirement.ʹʺ Iqbal, 556 U.S. at 678; accord Twombly, 550
U.S. at 556 (ʺAsking for plausible grounds to infer an agreement does not impose
a probability requirement at the pleading stage . . . .ʺ); Littlejohn, 2015 WL
4604250, at *7. On a motion to dismiss, the question is not whether a plaintiff is
likely to prevail, but whether the well‐pleaded factual allegations plausibly give
rise to an inference of unlawful discrimination, i.e., whether plaintiffs allege
enough to ʺnudge[] their claims across the line from conceivable to plausible.ʺ
Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678‐80.
Accordingly, to defeat a motion to dismiss or a motion for judgment
on the pleadings in a Title VII discrimination case, a plaintiff must 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. As we have long recognized, the ʺʹultimate issueʹ in an employment
discrimination case is whether the plaintiff has met her burden of proving that
‐ 30 ‐
the adverse employment decision was motivated at least in part by an
ʹimpermissible reason,ʹ i.e., a discriminatory reason.ʺ Stratton v. Depʹt for the
Aging for City of N.Y., 132 F.3d 869, 878 (2d Cir. 1997) (quoting Fields v. N.Y. State
Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 119 (2d Cir.
1997)). A plaintiff can meet that burden through direct evidence of intent to
discriminate, see, e.g., Stratton, 132 F.3d at 878 & n.4, or by indirectly showing
circumstances giving rise to an inference of discrimination, see, e.g., Tolbert v.
Smith, 790 F.3d 427, 436‐37 (2d Cir. 2015). A plaintiff may prove discrimination
indirectly either by meeting the requirements of McDonnell Douglas and showing
that the employerʹs stated reason for its employment action was pretext to cover‐
up discrimination, see, e.g., Fisher v. Vassar Coll., 114 F.3d 1332, 1334 (2d Cir. 1997)
(en banc), cert. denied, 522 U.S. 1075 (1998), or by otherwise creating a ʺmosaicʺ of
intentional discrimination by identifying ʺbits and pieces of evidenceʺ that
together give rise to an inference of discrimination, Gallagher, 139 F.3d at 342. At
the pleadings stage, then, a plaintiff must allege that the employer took adverse
action against her at least in part for a discriminatory reason, and she 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. See
‐ 31 ‐
Littlejohn, 2015 WL 4604250, at *7 (requiring facts ʺsuggesting an inference of
discriminatory motivationʺ).
b. Section 1983
The Fourteenth Amendment provides public employees with the
right to be ʺfree from discrimination.ʺ Demoret v. Zegarelli, 451 F.3d 140, 149 (2d
Cir. 2006). Consequently, public employees aggrieved by discrimination in the
terms of their employment may bring suit under 42 U.S.C. § 1983 against any
responsible persons acting under color of state law. Back v. Hastings on Hudson
Union Free Sch. Dist., 365 F.3d 107, 122‐23 (2d Cir. 2004). To state a claim under
§ 1983, a plaintiff must allege two elements: (1) ʺthe violation of a right secured
by the Constitution and laws of the United States,ʺ and (2) ʺthe alleged
deprivation was committed by a person acting under color of state law.ʺ
Feingold, 366 F.3d at 159 (quoting West v. Atkins, 487 U.S. 42, 48 (1988)) (internal
quotation marks omitted). A state employee acting in his official capacity is
acting ʺunder color of state law.ʺ Id.
Once the color of law requirement is met, a plaintiffʹs ʺequal
protection claim parallels his Title VII claim,ʺ except that a § 1983 claim, unlike a
Title VII claim, can be brought against an individual. Id. Thus, for a § 1983
‐ 32 ‐
discrimination claim to survive a motion for judgment on the pleadings or a
motion to dismiss, a plaintiff must plausibly allege a claim under the same
standards applicable to a Title VII claim ‐‐ and that the adverse action was taken
by someone acting ʺunder color of state law.ʺ
3. Application
We conclude that Vega pleaded a plausible discrimination claim
under Title VII and § 1983, based on his allegation that the District assigned him
classes with higher numbers of Spanish‐speaking students and, in doing so,
assigned him a disproportionate workload. None of Vegaʹs other claims
plausibly state a claim on their own, but they help create context for his
discrimination claim.
Vega has plausibly alleged that his assignment to classes with
increased numbers of Spanish‐speaking students was an ʺadverse employment
actionʺ taken ʺbecause ofʺ his Hispanic ethnicity. First, Vega alleges that he was
forced to spend disproportionately more time preparing for his classes and
therefore experienced a material increase in his responsibilities without
additional compensation. He contends that these assignments required him to
do ʺtwice as much workʺ and that he was assigned class preparations on a basis
‐ 33 ‐
that exceed ʺDistrict policy.ʺ App. at 11. We have previously held that the
assignment of ʺan excessive workloadʺ as a result of ʺdiscriminatory intent,ʺ
Feingold, 366 F.3d at 153, can be an adverse employment action because it is
ʺmore disruptive than a mere inconvenience or an alteration of job
responsibilities,ʺ Terry, 336 F.3d at 138 (internal quotation marks omitted). Vega
has thus plausibly alleged an adverse employment action.
Second, Vega has also plausibly alleged that the adverse action was
taken ʺbecause ofʺ his Hispanic ethnicity, that is, that his Hispanic ethnicity was
a motivating factor in the employment decisions. He contends that he was
assigned a large percentage of Spanish‐speaking students because he is Hispanic
and bilingual, while his similarly‐situated co‐workers were not assigned
additional work. Vegaʹs other allegations of discrimination, even if they do not
independently constitute adverse employment actions, provide ʺrelevant
background evidenceʺ by shedding light on Defendantʹs motivation and thus
bolster his claim that Defendants treated him differently because of his ethnicity.
See Natʹl R.R. Passenger Corp., 536 U.S. at 112 (quoting United Air Lines, Inc. v.
Evans, 431 U.S. 553, 558 (1977)) (internal quotation marks omitted); Washington v.
Davis, 426 U.S. 229, 242 (1976) (holding that ʺan invidious discriminatory purpose
‐ 34 ‐
may often be inferred from the totality of the relevant factsʺ).10 For example, the
District placed a ʺUniversity of Puerto Ricoʺ banner outside his classroom and
attempted to transfer him to a Hispanic principalʹs school. These actions are
plausibly connected to Vegaʹs Hispanic background and therefore provide a
contextual basis for inferring discrimination. Vega has thus plausibly alleged
that his Hispanic background was a ʺmotivating factorʺ contributing to his being
assigned extra work. See Raniola v. Bratton, 243 F.3d 610, 628 (2d Cir. 2001).
The District may contend that Vega was assigned a disproportionate
number of Spanish‐speaking students solely because of his language ability, and
not because of his Hispanic background, but these competing explanations are
better evaluated at the summary judgment stage or beyond, and not on a motion
for judgment on the pleadings. See, e.g., Brown, 756 F.3d at 230 (ʺThat there may
be other explanations for [a defendantʹs] employment decisions does not render
[a plaintiffʹs] allegations of discrimination inadequate as a matter of law.ʺ).
10 Some of these actions could also be relevant to a hostile environment claim, as
Title VIIʹs prohibition on discrimination covers more than ʺeconomicʺ or ʺtangible
discriminationʺ and more than the ʺterms and conditionsʺ of employment in the ʺnarrow
contractual sense.ʺ Natʹl R.R. Passenger Corp., 536 U.S. at 115‐16 (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993), and Faragher v. Boca Raton, 524 U.S. 775, 786 (1998)) (internal
quotation marks omitted). But no such claim has been asserted in this case.
‐ 35 ‐
Finally, the parties do not dispute that Defendantsʹ actions are
ʺunder color of state lawʺ as Davidson and Artiles are employees of a public
school. The Complaint alleges that Davidson and Artiles ʺacting under color of
state law . . . violated his constitutional rights.ʺ App. at 19. Because the
Complaint also alleges that Davidson and Artiles each had ʺinput into personnel
decisions at [the High School] including hiring, firing, evaluations and discipline
of employees,ʺ id. at 9‐10, Vega has plausibly alleged state action for the purposes
of § 1983.
Accordingly, the Complaint plausibly pleads under both Title VII
and § 1983 that Defendants discriminated against Vega by assigning him, on or
after the time‐bar dates, to classes that required additional preparation because
they had large numbers of Spanish‐speaking students.
Vegaʹs other allegations of discrimination do not plausibly state a
claim for relief under Title VII or § 1983. He complains that he was unable to use
his regular classroom for his first period class in October 2010 and therefore had
to teach in an ʺexcessively noisyʺ media center; he was assigned a classroom with
a ʺUniversity of Puerto Ricoʺ banner above the door; he was unable to access a
school computer in October 2011 because his password had been de‐activated;
‐ 36 ‐
and the District twice unsuccessfully attempted to transfer him out of the High
School. These actions did not, however, ʺmaterially . . . change . . . the terms and
conditions of employment.ʺ Galabya, 202 F.3d at 640 (internal quotation marks
omitted). Rather, these were mere inconveniences or annoyances that did not
alter Vegaʹs employment in a materially adverse way. See Terry, 336 F.3d at 138.
Accordingly, while the district court applied the incorrect pleading
standard, it did not err in dismissing Vegaʹs claims of discrimination, except with
respect to the disproportionate workload claim.
D. Pleading of Retaliation Claims
We consider the applicable pleading standards for a retaliation
claim, and then we apply the pleading standards to the retaliation claims in this
case.
1. Applicable Pleading Standards for Retaliation Claims
a. Title VII
Title VII provides that ʺ[i]t shall be an unlawful employment
practice for an employer to discriminate against any of his employees . . . because
he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated
‐ 37 ‐
in any manner in an investigation, proceeding, or hearing under this
subchapter.ʺ 42 U.S.C. § 2000e‐3(a). Thus, for a retaliation claim to survive a
motion for judgment on the pleadings or a motion to dismiss, the plaintiff must
plausibly allege that: (1) defendants discriminated ‐‐ or took an adverse
employment action ‐‐ against him, (2) ʺbecauseʺ he has opposed any unlawful
employment practice. Id.
The Supreme Court has held that in the context of a Title VII
retaliation claim, an adverse employment action is any action that ʺcould well
dissuade a reasonable worker from making or supporting a charge of
discrimination.ʺ Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
This definition covers a broader range of conduct than does the adverse‐action
standard for claims of discrimination under Title VII: ʺ[T]he antiretaliation
provision, unlike the substantive [discrimination] provision, is not limited to
discriminatory actions that affect the terms and conditions of employment.ʺ Id.
at 64. As the Court cautioned:
Context matters. The real social impact of workplace behavior
often depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully captured by
a simple recitation of the words used or the physical acts
performed. A schedule change in an employee’s work
schedule may make little difference to many workers, but may
‐ 38 ‐
matter enormously to a young mother with school‐age
children. A supervisorʹs refusal to invite an employee to lunch
is normally trivial, a nonactionable petty slight. But to retaliate
by excluding an employee from a weekly training lunch that
contributes significantly to the employeeʹs professional
advancement might well deter a reasonable employee from
complaining about discrimination.
Id. at 69 (citations omitted) (internal quotation marks omitted); see also Kessler v.
Westchester Cty. Depʹt of Soc. Servs., 461 F.3d 199, 207‐09 (2d Cir. 2006) (quoting
White, 548 U.S. at 62‐71).
As for causation, a plaintiff must plausibly plead a connection
between the act and his engagement in protected activity. See 42 U.S.C. § 2000e‐
3(a). A retaliatory purpose can be shown indirectly by timing: protected activity
followed closely in time by adverse employment action. See Cifra v. Gen. Elec.
Co., 252 F.3d 205, 217 (2d Cir. 2001) (ʺThe causal connection needed for proof of a
retaliation claim can be established indirectly by showing that the protected
activity was closely followed in time by the adverse action.ʺ (internal quotation
marks omitted)); accord Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010) (ʺThough this Court has not drawn a bright line defining, for the purposes
of a prima facie case, the outer limits beyond which a temporal relationship is too
attenuated to establish causation, we have previously held that five months is
not too long to find the causal relationship.ʺ).
‐ 39 ‐
Unlike Title VII discrimination claims, however, for an adverse
retaliatory action to be ʺbecauseʺ a plaintiff made a charge, the plaintiff must
plausibly allege that the retaliation was a ʺbut‐forʺ cause of the employerʹs
adverse action. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533
(2013). It is not enough that retaliation was a ʺsubstantialʺ or ʺmotivatingʺ factor
in the employerʹs decision. See id. ʺʹ[B]ut‐forʹ causation does not[, however,]
require proof that retaliation was the only cause of the employerʹs action, but
only that the adverse action would not have occurred in the absence of the
retaliatory motive.ʺ Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir.
2013). Further, ʺthe but‐for causation standard does not alter the plaintiffʹs
ability to demonstrate causation . . . through temporal proximity.ʺ Id. at 845.
b. Section 1983
As in discrimination claims, the elements of a retaliation claim based
on an equal protection violation under § 1983 mirror those under Title VII.
Accordingly, we hold that for a retaliation claim under § 1983 to survive a
motion for judgment on the pleadings or a motion to dismiss, the plaintiff must
plausibly allege that: (1) defendants acted under the color of state law, (2)
‐ 40 ‐
defendants took adverse employment action against him, (3) because he
complained of or otherwise opposed discrimination.
2. Application
We conclude that Vega has adequately pleaded retaliation claims
under Title VII based on his assignment of notoriously absent students, his
temporary paycheck reduction, and the Districtʹs failure to notify him of a
curriculum change, and under Title VII and § 1983 based on his negative
performance review.
As a threshold matter, we note that the district court erred in
concluding that, for a retaliation claim, a plaintiff needs to demonstrate a
connection between the alleged retaliatory acts and his ethnicity. See Vega, 2014
WL 2157536, at *9 (ʺMoreover, plaintiffʹs retaliation claims suffer from the same
deficiencies as his Title VII claims, i.e., the lack of a connection between the
alleged retaliatory acts and his ethnicity.ʺ). Retaliation occurs when an employer
takes action against an employee not because of his ethnicity, but because he
engaged in protected activity ‐‐ complaining about or otherwise opposing
discrimination.
‐ 41 ‐
Here, Vega alleges that after he engaged in protected activity by
filing a charge of discrimination with the EEOC in August 2011, he was assigned
more students with excessive absenteeism records (jumping from 20% to 75%),
his salary was temporarily reduced, he was not notified that the curriculum for
one of his classes was changed, and he received a negative performance
evaluation. Each of these allegations plausibly states a claim of retaliation.
First, each of these actions ʺcould well dissuade a reasonable worker
from making or supporting a charge of discrimination.ʺ White, 548 U.S. at 57
(emphasis added). The assignment of a substantially higher number of
chronically absent students could very well have adversely impacted Vega, both
by making his teaching assignments more difficult and by making it more
difficult for him to achieve good results. Likewise, the wrongful deduction of
$738.92 from his paycheck for sick leave, the failure of the District to correct the
error in full, and the failure of the District to correct the error even in part for six
months surely could have had an adverse impact on Vega. See id. Similarly,
failing to notify Vega of a curriculum change could have adversely affected him
by, for example, making him appear unprepared or ineffective both to his
‐ 42 ‐
students and for his up‐coming teacher evaluation, as he would have been
preparing for and teaching the wrong curriculum.
Viewed in the context of his other allegations, it was plausible that
the Districtʹs failure to notify Vega of the curriculum change was part of their
pattern of discrimination and retaliation designed to make Vega look bad.
Finally, of course, a poor performance evaluation could very well deter a
reasonable worker from complaining. See, e.g., Krinsky v. Abrams, No. 01‐CV‐
5052 (SLT)(LB), 2007 WL 1541369, at *11 (E.D.N.Y. May 25, 2007) (ʺ[A] negative
evaluation, or the threat of a negative evaluation, while not an adverse
employment action that affects terms and conditions of employment, might
dissuade a reasonable worker from making or supporting a charge of
discrimination.ʺ (alteration omitted) (quoting White, 548 U.S. at 68) (internal
quotation marks omitted)).
Second, each of these actions closely followed protected activity by
Vega. His assignment of classes ʺfor the 2011/2012 school year,ʺ App. at 16, must
have been made shortly before the start of the school year ‐‐ shortly after he filed
his initial charge with the EEOC on August 8, 2011. Similarly, the District
changed the curriculum for his class in November of 2011, within three months
‐ 43 ‐
of his initial filing with the EEOC. The District made the erroneous sick leave
deduction from Vegaʹs pay check on March 2, 2012, just two months after Vega
filed an addendum to his EEOC complaint on January 4, 2012, providing greater
detail about his previous claims and adding new allegations of discrimination
and retaliation. Vega received his poor teacher evaluation (from Artiles)11 in
February 2013, approximately two months after he filed his pro se complaint in
the action below, on December 12, 2012. According to Vega, this was his first
negative evaluation in sixteen years of teaching at the High School. Hence, the
Complaint plausibly alleges a temporal proximity for each of these actions.
Some of these actions, considered individually, might not amount to
much. Taken together, however, they plausibly paint a mosaic of retaliation and
an intent to punish Vega for complaining of discrimination.
CONCLUSION
We conclude that the district court erred in granting Defendantsʹ
motion for judgment on the pleadings in full and dismissing the Complaint in its
entirety. For the reasons stated above, we VACATE and REMAND for further
proceedings consistent with this opinion.
11 The Complaint alleges, ʺ[t]his negative evaluation clearly shows Artilesʹ bad faith
intent to directly cause [Vega] harm and to violate his constitutional rights under the Equal
Protection Clause.ʺ App. at 18.
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