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Date: 08-03-2015

Case Style: Dawn F. Littlejohn v. City of New York

Case Number: 14‐1395‐cv

Judge: Droney

Court: Untied States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)

Plaintiff's Attorney: GREGORY G. SMITH, New York, NY, for Plaintiff‐Appellant.

Defendant's Attorney: SUSAN PAULSON (Francis F. Caputo, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants‐Appellees.

Description: 25 Plaintiff Dawn F. Littlejohn appeals from a judgment of the
26 United States District Court for the Southern District of New York
27 (Sweet, J.) entered on February 28, 2014. Littlejohn alleged that,
28 while employed by the New York City Administration for
3
Children’s Services (“ACS”), 1 she was subjected to a hostile work
2 environment and disparate treatment based on her race, and
3 retaliated against because of complaints about such discrimination,
4 in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),
5 as amended, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. §§ 1981 and
6 1983. Littlejohn also alleged that she was sexually harassed in
7 violation of Title VII. Defendants, the City of New York (“the City”)
8 and three individuals who supervised Littlejohn at ACS, moved to
9 dismiss Littlejohn’s amended complaint pursuant to Rule 12(b)(6) of
10 the Federal Rules of Civil Procedure. The district court granted
11 Defendants’ motion to dismiss in its entirety, and Littlejohn
12 appealed.
13 For the reasons set forth below, we VACATE the district
14 court’s judgment granting Defendants’ motion to dismiss with
15 respect to (1) Littlejohn’s disparate treatment and retaliation claims
16 against the City under Title VII, (2) Littlejohn’s disparate treatment
4
claim against Defendant 1 Amy Baker under §§ 1981 and 1983, and
2 (3) Littlejohn’s retaliation claim against Baker under § 1981; AFFIRM
3 the dismissal of the other claims; and REMAND for proceedings
4 consistent with this opinion.
5 BACKGROUND
6 I. Factual Background1
7 Littlejohn is an African‐American woman with a master’s
8 degree in Industrial/Organizational Psychology from Columbia
9 University. She began working at ACS on April 27, 2009, as the
10 Director of its Equal Employment Opportunity (“EEO”) Office. As
11 Director, Littlejohn conducted investigations of claims of
12 discrimination, trained staff, monitored hiring, counseled agency
13 employees, organized diversity activities, and advised staff on EEO
14 policy, duties which she alleges she performed satisfactorily.
1 Because this appeal involves review at the motion to dismiss stage, we base
these facts on the allegations contained in Littlejohn’s amended complaint
(“Compl.”), which we accept as true at this stage, and the documents
incorporated by reference therein. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d
104, 110‐11 (2d Cir. 2010).
5
1 From April to December 2009, Littlejohn’s supervisor was
2 ACS Deputy Commissioner Anne Williams‐Isom, an African‐
3 American woman. Before Williams‐Isom left ACS in December
4 2009, she gave Littlejohn an above‐average performance review for
5 her work over the previous eight months. Littlejohn does not allege
6 that any discrimination or harassment occurred during the period in
7 which she reported to Williams‐Isom.
8 After Williams‐Isom left ACS in late December 2009,
9 Littlejohn began reporting to Defendant Amy Baker, a white woman
10 and the Chief of Staff to ACS Commissioner and Defendant John B.
11 Mattingly, a white man. Littlejohn’s relationship with Baker quickly
12 deteriorated. According to Littlejohn’s complaint, Baker asked
13 another employee “for negative information about [Littlejohn]”;
14 “physically distanc[ed] herself from [Littlejohn] at meetings”;
15 “increased [Littlejohn’s] reporting schedule from an as‐needed basis
16 . . . to twice‐weekly”; “wrongful[ly] and unnecessar[il]y
6
reprimand[ed] 1 ” Littlejohn; “required [Littlejohn] to re‐create
2 reasonable accommodation and EEO logs even though these logs
3 were already in place”; became “noticeably impatient, shook her
4 head, blew air out of her mouth when [Littlejohn] talked in the
5 presence of other managers”; “held her head in disbelief, got red in
6 the face, used harsh tones, removed [Littlejohn’s] name from the
7 regularly scheduled management meeting lists”; “refused to meet
8 with [Littlejohn] face‐to‐face, diminished [Littlejohn’s] duties and
9 responsibilities as EEO Director”; “changed meetings that were
10 supposed to be scheduled as in person bi‐monthly meetings to twice
11 a week over the phone discussions with [Littlejohn]”; and “replaced
12 [Littlejohn] at management meetings with [her] white male
13 subordinate.” Compl. ¶¶ 34, 53, 71, 74‐75. Littlejohn also alleges
14 that Baker sarcastically told her “you feel like you are being left
15 out,” and that Littlejohn did not “understand the culture” at ACS.
16 Id. ¶¶ 36, 49.
7
Shortly after 1 Littlejohn began reporting to Baker, the City
2 announced in January 2010 that ACS would merge with the City’s
3 Department of Juvenile Justice (“DJJ”). As a result of the merger,
4 numerous employees from DJJ would be laid off, demoted,
5 reassigned, or terminated. Littlejohn asked Baker to be included in
6 the process of deciding which DJJ employees would be transferred
7 or terminated “to ensure that procedures were in accordance with
8 established . . . guidelines and policies,” but Baker and other white
9 managers allegedly “impeded, stymied, and suffocated” Littlejohn’s
10 effort to become involved in those decision‐making meetings. Id.
11 ¶¶ 44‐45. Only after an Assistant Commissioner for the Department
12 of Citywide Administrative Services demanded that Littlejohn be
13 included in the meetings was she allowed to attend.
14 According to Littlejohn, Baker and Mattingly showed
15 preferential treatment to white DJJ employees during the ACS/DJJ
16 merger, while at the same time terminating, demoting, or
8
unfavorably 1 reassigning African‐American and Latino/a DJJ
2 employees. Littlejohn alleges that she complained to Baker and
3 Mattingly about the “selection process and failure to abide by
4 proper anti‐discrimination policies and procedures.” Id. ¶ 64.
5 Specifically, Littlejohn believed that Defendants were improperly
6 and purposefully failing to conduct an “adverse impact review and
7 analysis,” which was mandated by the City’s Department for
8 Citywide Administrative Services layoff manual. Id. ¶ 61. Around
9 the same time, Littlejohn also complained to Baker about the lack of
10 African‐American women in management positions, lower
11 management levels for African‐American employees compared to
12 white employees, and pay disparities between African‐American
13 men and their white counterparts. Littlejohn’s complaints, however,
14 were “to no avail.” Id. ¶ 64.
15 In March 14, 2011, Littlejohn was involuntarily transferred
16 from the EEO Office to the Office of Personnel Services (“OPS”) and
9
was allegedly demoted to the 1 civil service non‐managerial title of
2 Administrative Staff Analyst, incurring a pay cut of $2,000.
3 Littlejohn was replaced as Director of the EEO Office by Fredda
4 Monn, a white female, who allegedly had no prior EEO experience,
5 received more pay than Littlejohn did as EEO Director, and was
6 provided with a “deputy EEO officer” to help with her work. Id.
7 ¶ 78. Littlejohn claimed that the transfer and demotion were in
8 retaliation for her complaints to Baker and Mattingly about “racial
9 discrimination and violations of law” during the ACS/DJJ merger,
10 and for her complaints about “her lack of involvement from an EEO
11 perspective in the decision making process of DJJ and ACS Job
12 actions.” Id. ¶¶ 52, 68.
13 At OPS, Littlejohn began reporting to Brandon Stradford, the
14 Director of Employee Relations. Stradford is an African‐American
15 man. The complaint in this action alleges that from March 2011 to
16 September 2011, Stradford sexually harassed her through “ongoing
10
repeated requests 1 for dates, [requests for] sex, touching, showing of
2 sexually explicit photographs of himself on vacation and physically
3 exposing” himself. Id. ¶ 85. Littlejohn also claimed that Stradford
4 “repeatedly threaten[ed] to further demote” her. Id. ¶ 87. Littlejohn
5 alleges that she complained in April 2011 about Stradford’s
6 harassment to an Assistant Commissioner, who declined to act on
7 her complaints. In April 2012, Littlejohn mentioned the harassment
8 to Monn, now the Director of the EEO Office, and to an investigator
9 at the Equal Employment Opportunity Commission (“EEOC”), with
10 “no results.” Id. ¶ 93. According to Littlejohn, Monn did not
11 provide her with an administrative form on which to complain
12 about Stradford’s sexual harassment.
13 On October 21, 2011, Littlejohn filed an Intake Questionnaire2
14 with the EEOC, in which she alleged discrimination based on race
2 An “Intake Questionnaire” allows an employee to provide the EEOC with basic
preliminary information about herself, her employer, and the reason for her
claim of discrimination, and begins the process of filing a charge of
discrimination. When the Intake Questionnaire manifests intent to have the
11
and color as a result 1 of Baker’s and Mattingly’s actions while she
2 was EEO Director. Littlejohn’s Intake Questionnaire did not claim
3 discrimination based on sex or sexual harassment, nor did it
4 mention Stradford. Instead, Littlejohn explained in the Intake
5 Questionnaire that she believed Baker’s and Mattingly’s actions
6 were discriminatory on the basis of race and color because they
7 “fail[ed] to reassign” her to a position for which she was “suitably
8 and well qualified”; “incessant[ly] harass[ed] and degrad[ed]” her;
9 retaliated against her for “complaining about common ACS
10 practices”; demoted her from “admin Staff Analyst M1 to Admin
11 Staff Analyst (NM) and replaced [her with] a white female”;
12 “deliberately froze[] out and excluded [her] from all deliberations,
13 meetings and responsibilities”; “relegate[d] [her] to performing the
14 most menial and clerical tasks”; and “strip[ped] [her] of [her] pay
agency initiate its investigatory processes, the questionnaire can itself constitute
a charge of discrimination. See Holowecki v. Fed. Express Corp., 440 F.3d 558, 566‐
67 (2d Cir. 2006).
12
level.” Littlejohn Aff., 1 Ex. 1.3 On February 2, 2012, Littlejohn
2 followed up her completed Intake Questionnaire by filing a formal
3 Charge of Discrimination with the EEOC, claiming discrimination
4 based on race and color, as well as retaliation for complaints about
5 such discrimination. Despite the option on the EEOC charge form to
6 claim discrimination based on sex, Littlejohn again did not make
7 such a claim or mention Stradford or sexual harassment.
8 From April 27 to June 5, 2012, Littlejohn went on medical
9 leave under the Family Medical Leave Act as a result of mental and
10 physical health issues allegedly caused by her treatment at ACS.
11 Littlejohn claimed that, while on leave, she was repeatedly asked for
12 documentation of her medical condition, and that Stradford caused
13 her paychecks to be improperly withheld. When Littlejohn returned
14 from leave in June 2012, she was reassigned to a different manager,
3 In reviewing a Rule 12(b)(6) motion to dismiss, “it is proper for this court to
consider the plaintiff[’]s relevant filings with the EEOC” and other documents
related to the plaintiff’s claim, even if they are not attached to the complaint, so
long as those filings are either “incorporate[d] by reference” or are “integral to”
and “solely relie[d]” upon by the complaint. Holowecki, 440 F.3d at 565‐66.
13
1 Claudette Wynter, the Director of Personnel Services and an
2 African‐American woman. However, according to her complaint,
3 Stradford continued to sexually harass her. As a result, Littlejohn
4 wrote a letter to Monn on August 22, 2012, in which Littlejohn
5 thanked Monn for changing her supervisor but asked to be moved
6 farther away from Stradford. Littlejohn sent a similar email to
7 Wynter complaining about her close proximity to Stradford. Monn
8 eventually followed up with Littlejohn in May 2013 regarding her
9 original complaint of sexual harassment against Stradford; Monn
10 stated that she had investigated the complaint and was unable to
11 find evidence to substantiate a violation of department policy.
12 On September 24, 2012, Littlejohn was approved to return to
13 medical leave as a result of a “mini stroke.” Compl. ¶¶ 92, 97. It
14 was on this date that Littlejohn initially claimed she was
15 constructively discharged.4 Approximately one month later, on
16 October 23, 2012, Littlejohn wrote a letter to Kevin Berry, the
4 Littlejohn has abandoned her constructive discharge claim on appeal.
14
Director of the EEOC 1 New York District Office, regarding the EEOC
2 charge she previously filed on February 2 that claimed
3 discrimination based on race and color.5 In this letter, Littlejohn
4 stated that “I want to be sure that you are aware [of] my additional
5 charge of hostile work environment‐sexual harassment at the hands
6 of my manager [Brandon Stradford] within the unit in which I was
7 placed after being unfairly demoted.” Littlejohn Aff., Ex. 11.
8 Littlejohn explained that she suffered emotional distress due to
9 Stradford’s unwanted physical advances and his constant staring at
10 her body. Littlejohn also asked Berry to “[p]lease let me know what
11 additional information you may need.” Id. There is no indication in
12 the complaint filed in this action that the EEOC responded to
13 Littlejohn’s October 23 letter.
5 Littlejohn’s letter was in response to a September 19, 2012 letter that she
received from Berry in which Berry purportedly informed Littlejohn that her
request for a right to sue letter had been forwarded to the U.S. Department of
Justice for action. Littlejohn does not appear to have submitted Berry’s letter to
the district court and it is not part of the record on appeal.
15
On 1 November 19, 2012, after 180 days had elapsed since
2 Littlejohn filed her EEOC charge alleging discrimination based on
3 race and color, the EEOC sent Littlejohn a Notice of Right to Sue
4 Letter. Subsequently, on November 29, 2012, she went to the ACS
5 EEO Office and filed an internal “Complaint of Discrimination
6 Form” alleging sexual harassment by Stradford, which she gave to
7 Monn.
8 II. Procedural History
9 Littlejohn commenced this lawsuit pro se on February 15, 2013,
10 and filed an amended complaint on September 23, 2013, after she
11 retained counsel. The amended complaint alleged causes of action
12 for hostile work environment and disparate treatment based on
13 Littlejohn’s race, and retaliation because of complaints about such
14 discrimination, in violation of Title VII and 42 U.S.C. §§ 1981 and
15 1983. The complaint also alleged sexual harassment in violation of
16
Title VII. 1 The Defendants are the City of New York, Mattingly,
2 Baker, and Stradford.
3 On December 6, 2013, Defendants moved to dismiss all of
4 Littlejohn’s claims pursuant to Federal Rule of Civil Procedure
5 12(b)(6). The district court granted Defendants’ motion in its
6 entirety on February 28, 2014, concluding that Littlejohn failed to
7 exhaust her administrative remedies as to her sexual harassment
8 claim and failed to adequately plead her hostile work environment,
9 disparate treatment, and retaliation claims. As to her §§ 1981 and
10 1983 claims, the district court held in the alternative that Littlejohn
11 failed to allege personal responsibility with respect to individual
12 Defendants Mattingly and Stradford, and did not state a claim
13 against the City pursuant to Monell v. Department of Social Services,
14 436 U.S. 658 (1978).
17
1 DISCUSSION
2 I. Standard of Review
3 This Court reviews de novo a district court’s grant of a motion
4 to dismiss under Rule 12(b)(6). Simmons v. Roundup Funding, LLC,
5 622 F.3d 93, 95 (2d Cir. 2010). On a motion to dismiss, all factual
6 allegations in the complaint are accepted as true and all inferences
7 are drawn in the plaintiff’s favor. Ofori‐Tenkorang v. Am. Int’l Grp.,
8 Inc., 460 F.3d 296, 300 (2d Cir. 2006).
9 Determining the propriety of the dismissal of an employment
10 discrimination complaint under Rule 12(b)(6) requires assessment of
11 the interplay among several Supreme Court precedents. McDonnell
12 Douglas Corp. v. Green, 411 U.S. 792 (1973), and three subsequent
13 Supreme Court rulings clarifying it, established the nature of a
14 prima facie case of discrimination under Title VII. Swierkiewicz v.
15 Sorema N. A., 534 U.S. 506 (2002), specifically addressed the
16 requirements for pleading such a case. And Ashcroft v. Iqbal, 556 U.S.
18
1 662 (2009), later asserted general pleading requirements (not
2 specifically addressed to discrimination cases), in arguable tension
3 with the holding of Swierkiewicz. We discuss each of these.
4 McDonnell Douglas, together with Texas Department of
5 Community Affairs v. Burdine, 450 U.S. 248 (1981), St. Mary’s Honor
6 Center v. Hicks, 509 U.S. 502 (1993), and Reeves v. Sanderson Plumbing
7 Products, Inc., 530 U.S. 133 (2000), established that the requirements
8 of a prima facie case for a plaintiff alleging employment
9 discrimination change as the case progresses. Ultimately, the
10 plaintiff will be required to prove that the employer‐defendant acted
11 with discriminatory motivation. However, in the first phase of the
12 case, the prima facie requirements are relaxed. Reasoning that
13 fairness required that the plaintiff be protected from early‐stage
14 dismissal for lack of evidence demonstrating the employer’s
15 discriminatory motivation before the employer set forth its reasons
16 for the adverse action it took against the plaintiff, the Supreme Court
19
ruled that, in the initial 1 phase of the case, the plaintiff can establish a
2 prima facie case without evidence sufficient to show discriminatory
3 motivation. See McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S.
4 at 253‐54 (“The prima facie case . . . eliminates the most common
5 nondiscriminatory reasons for the plaintiff’s rejection. . . . [W]e
6 presume these acts, if otherwise unexplained, are more likely than
7 not based on the consideration of impermissible factors.” (internal
8 quotation marks omitted)). If the plaintiff can show (1) that she is a
9 member of a protected class; (2) that she was qualified for
10 employment in the position; (3) that she suffered an adverse
11 employment action; and, in addition, has (4) some minimal evidence
12 suggesting an inference that the employer acted with discriminatory
13 motivation, such a showing will raise a temporary “presumption” of
14 discriminatory motivation, shifting the burden of production to the
15 employer and requiring the employer to come forward with its
16 justification for the adverse employment action against the plaintiff.
20
Burdine, 450 U.S. at 253‐54; St. 1 Mary’s Honor Ctr., 509 U.S. at 506‐07.
2 However, once the employer presents evidence of its justification for
3 the adverse action, joining issue on plaintiff’s claim of
4 discriminatory motivation, the presumption “drops out of the
5 picture” and the McDonnell Douglas framework “is no longer
6 relevant.” St. Mary’s Honor Ctr., 509 U.S. at 510‐11. At this point, in
7 the second phase of the case, the plaintiff must demonstrate that the
8 proffered reason was not the true reason (or in any event not the
9 sole reason) for the employment decision, which merges with the
10 plaintiff’s ultimate burden of showing that the defendant
11 intentionally discriminated against her.6 Burdine, 450 U.S. at 256; St.
12 Mary’s Honor Ctr., 509 U.S. at 519.
6 Of course, while a “satisfactory explanation by the defendant destroys the
legally mandatory inference of discrimination arising from the plaintiff’s initial
evidence,” the initial “evidence [used to establish the prima facie case] and
inferences properly drawn therefrom may be considered by the trier of fact on
the issue of whether the defendant’s explanation is pretextual.” Burdine, 450 U.S.
at 255 n.10.
21
For the 1 initial phase, in which the plaintiff benefited from the
2 presumption, the Supreme Court’s precedents left unclear how
3 much evidence a plaintiff needed to shift the burden of production
4 to the employer. It suggested in McDonnell Douglas that it would be
5 sufficient for a disappointed job seeker who was a member of a
6 protected class to show that she was qualified for the position, that
7 the position remained open, and that the employer continued to
8 seek applicants for the position, without need for any further
9 evidence of discriminatory intent. 411 U.S. at 802. In Burdine, the
10 Court held that it was sufficient for the disappointed applicant to
11 show that the job went to one who was not a member of her
12 protected class. 450 U.S. at 253 n.6. The Court characterized this
13 initial burden as “not onerous,” Burdine, 450 U.S. at 253, and as
14 “minimal,” St. Mary’s Honor Ctr., 509 U.S. at 506.
15 The next pertinent Supreme Court precedent is Swierkiewicz.
16 In Swierkiewicz, the plaintiff was a Hungarian national, 53 years of
22
age, who 1 had been dismissed by his employer, a French company.
2 534 U.S. at 508. He brought suit alleging national origin
3 discrimination under Title VII, and age discrimination. His
4 complaint included little in the way of factual allegations supporting
5 an inference of national origin discrimination, other than his
6 Hungarian nationality in a French company, and very little to
7 support his claim of age discrimination. Id. The district court
8 granted the defendant’s motion to dismiss the complaint for failure
9 to make out a prima facie case, apparently assuming that the
10 requirements of the prima facie case applied to pleading as well as
11 proof, and that the plaintiff’s allegations were insufficient to meet
12 even the reduced prima facie standards at the initial phase of the
13 case. See Swierkiewicz v. Sorema, N.A., No. 99 Civ. 12272(LAP), 2000
14 U.S. Dist. LEXIS 21547 (S.D.N.Y. July 26, 2000). Referring to a
15 memorandum that was incorporated into the complaint and upon
16 which the plaintiff relied, the district court explained that “[t]here is
23
nothing in the memorandum 1 from which age or national origin
2 discrimination can be inferred.” Id. at *4. Addressing the allegations
3 of both age and national origin discrimination, the court
4 characterized them as “conclusory” and “insufficient as a matter of
5 law to raise an inference of discrimination.” Id. at *5. Our Court
6 affirmed. Swierkiewicz v. Sorema, N.A., 5 F. App’x 63 (2d Cir. 2001).
7 The Supreme Court reversed. Swierkiewicz, 534 U.S. 506. The
8 Supreme Court clarified that the standard espoused by the
9 McDonnell Douglas line of cases for prima facie sufficiency was “an
10 evidentiary standard, not a pleading requirement.” Id. at 510. The
11 Court characterized our ruling as unwarrantedly imposing a
12 “heightened pleading standard in employment discrimination cases
13 [that] conflicts with Federal Rule of Civil Procedure 8(a)(2).” Id. at
14 512. The Court explained that “under a notice pleading system, it is
15 not appropriate to require a plaintiff to plead facts establishing a
16 prima facie case.” Id. at 511. The complaint needed only to “‘give
24
the defendant fair 1 notice of what the plaintiff’s claim is and the
2 grounds upon which it rests.’” Id. at 512 (quoting Conley v. Gibson,
3 355 U.S. 41, 47 (1957)). The Court thus concluded that the plaintiff’s
4 allegation “that he had been terminated on account of his national
5 origin in violation of Title VII and on account of his age in violation
6 of the ADEA” gave the employer “fair notice of what [the plaintiff’s]
7 claims are and the grounds upon which they rest.” Id. at 514.
8 Reading Swierkiewicz on its face, it appears to have meant that a Title
9 VII plaintiff is not required to plead facts supporting even a minimal
10 inference of discriminatory intent.
11 The final Supreme Court precedent that bears on the standard
12 for determining the sufficiency of a Title VII complaint is Ashcroft v.
13 Iqbal, 556 U.S. 662 (2009). The plaintiff in Iqbal alleged that
14 governmental defendants, including the Attorney General of the
15 United States, had unconstitutionally discriminated against him by
16 reason of his Pakistani nationality and Muslim religion, resulting in
25
1 his detention under harsh conditions. The Court found the
2 complaint insufficient to state a claim that the defendants had acted
3 with a “discriminatory state of mind.” Id. at 683. The Supreme
4 Court had recently determined in Bell Atlantic Corp. v. Twombly, 550
5 U.S. 544 (2007), that a complaint alleging an unlawful agreement in
6 restraint of trade must include “enough factual matter (taken as
7 true) to suggest [plausibly] that an agreement was made,” id. at 556,
8 or otherwise include “enough facts to state a claim to relief that is
9 plausible on its face,” id. at 570. The issue in Iqbal was whether the
10 earlier ruling in Twombly applied only in the antitrust context or
11 more broadly. The Court decided that the Twombly ruling did not
12 apply solely in the antitrust context. It ruled that, “[t]o survive a
13 motion to dismiss, a complaint must contain sufficient factual
14 matter, accepted as true, to state a claim to relief that is plausible on
15 its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted).
26
The 1 question then arises whether Iqbal’s requirement applies
2 to Title VII complaints falling under the McDonnell Douglas
3 framework.7 At least two arguments can be advanced that the Iqbal
4 requirement does not apply to such cases. The first is that the
5 requirement to allege facts would appear contradictory to the
6 Supreme Court’s ruling a few years earlier in Swierkiewicz. The
7 second is that the Iqbal ruling of otherwise general applicability
8 might not apply to a particular area for which the Supreme Court in
9 the McDonnell Douglas quartet had devised a set of special rules that
10 deviate from the customary prima facie rules.
11 The best argument that the Iqbal requirement does apply to
12 Title VII complaints is that the Iqbal ruling is broad, and the Court
7 We note that in E.E.O.C. v. Port Authority of New York & New Jersey, 768 F.3d 247
(2d Cir. 2014), our Court found that the Iqbal requirement was applicable to a
complaint alleging a violation of the Equal Pay Act. See id. at 254. That case does
not answer the question whether the Iqbal rule applies to Title VII complaints
governed by McDonnell Douglas. Under the Equal Pay Act, liability turns on
whether lesser pay is given for equivalent work—discriminatory motivation is
not an element of the claim. See Lavin‐McEleney v. Marist Coll., 239 F.3d 476, 480
(2d Cir. 2001). Moreover, the Equal Pay Act does not fall under the burdenshifting
framework of McDonnell Douglas. See Belfi v. Prendergast, 191 F.3d 129,
135 (2d Cir. 1999).
27
gave no suggestion that 1 it should not apply to cases falling under
2 McDonnell Douglas. As for whether the applicability of Iqbal to Title
3 VII pleadings would be contradictory to Swierkiewicz, this depends
4 on how one interprets Swierkiewicz. Reading that case on its face, it
5 appears to hold that under the notice pleading regime of the Federal
6 Rules, a Title VII discrimination complaint need not assert facts
7 supporting an inference of discriminatory intent, but may simply
8 use the word discrimination, thereby adequately communicating to
9 the defendant the nature of the claim. See Swierkiewicz, 534 U.S. at
10 511‐12. On the other hand, in Twombly, the Supreme Court cast
11 doubt on whether Swierkiewicz should be interpreted as meaning
12 that a Title VII complaint did not need to allege facts giving minimal
13 support to an inference of discrimination. The plaintiff in Twombly
14 argued against a requirement to plead facts, asserting that such a
15 requirement would be contrary to the Swierkiewicz holding. See
16 Twombly, 550 U.S. at 569 (noting that the plaintiff contended that the
28
position adopted 1 by the Court “runs counter to [Swierkiewicz’s
2 holding] that a complaint in an employment discrimination lawsuit
3 [need] not contain specific facts establishing a prima facie case of
4 discrimination” (internal quotation marks omitted)). The Court
5 rejected the plaintiff’s argument. The Court characterized
6 Swierkiewicz as meaning nothing more than that the plaintiff’s
7 pleadings contained sufficient factual allegations to satisfy the
8 “liberal pleading requirements” of the Federal Rules and that our
9 Circuit had improperly invoked a “heightened pleading standard
10 for Title VII cases” by requiring the plaintiff “to allege certain
11 additional facts that [he] would need at the trial stage.” Id. at 570.8
12 As for the argument that the Supreme Court was unlikely to
13 have intended in Iqbal to add new wrinkles to the special field of
14 Title VII suits, which the Supreme Court had so extensively covered
15 in the McDonnell Douglas quartet of cases, arguably there is no
8 Twombly also pointed to Swierkiewicz for the unrelated point that courts must
assume the truth of sufficiently detailed factual allegations in passing upon a
12(b)(6) motion. Twombly, 550 U.S. at 555‐56.
29
1 incompatibility, or even tension, between the burden‐shifting
2 framework of McDonnell Douglas and a requirement that the
3 complaint include reference to sufficient facts to make its claim
4 plausible—at least so long as the requirement to plead facts is
5 assessed in light of the presumption that arises in the plaintiff’s
6 favor under McDonnell Douglas in the first stage of the litigation.
7 It is uncertain how the Supreme Court will apply Iqbal’s
8 requirement of facts sufficient to support plausibility to Title VII
9 complaints falling under the McDonnell Douglas framework. We
10 conclude that Iqbal’s requirement applies to Title VII complaints of
11 employment discrimination, but does not affect the benefit to
12 plaintiffs pronounced in the McDonnell Douglas quartet. To the same
13 extent that the McDonnell Douglas temporary presumption reduces
14 the facts a plaintiff would need to show to defeat a motion for
15 summary judgment prior to the defendant’s furnishing of a
30
1 non‐discriminatory motivation, that presumption also reduces the
2 facts needed to be pleaded under Iqbal.
3 The Iqbal requirement is for facts supporting “plausibility.”
4 The Supreme Court explained that “[t]he plausibility standard is not
5 akin to a ‘probability requirement,’ but it asks for more than a sheer
6 possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
7 678. The question we face is what, in the Title VII context, must be
8 plausibly supported by factual allegations when the plaintiff does
9 not have direct evidence of discriminatory intent at the outset.
10 Answering this question requires attention to the shifting content of
11 the prima facie requirements in a Title VII employment
12 discrimination suit. Recapitulating what we have spelled out above,
13 while the plaintiff ultimately will need evidence sufficient to prove
14 discriminatory motivation on the part of the employer‐defendant, at
15 the initial stage of the litigation—prior to the employer’s coming
16 forward with the claimed reason for its action—the plaintiff does not
31
need substantial evidence 1 of discriminatory intent. If she makes a
2 showing (1) that she is a member of a protected class, (2) that she
3 was qualified for the position she sought, (3) that she suffered an
4 adverse employment action, and (4) can sustain a minimal burden of
5 showing facts suggesting an inference of discriminatory motivation,
6 then she has satisfied the prima facie requirements and a
7 presumption of discriminatory intent arises in her favor, at which
8 point the burden of production shifts to the employer, requiring that
9 the employer furnish evidence of reasons for the adverse action.
10 Burdine, 450 U.S. at 253‐54; St. Mary’s Honor Ctr., 509 U.S. at 506‐07.
11 At this stage, a plaintiff seeking to defeat a defendant’s motion for
12 summary judgment would not need evidence sufficient to sustain
13 her ultimate burden of showing discriminatory motivation, but
14 could get by with the benefit of the presumption if she has shown
15 evidence of the factors entitling her to the presumption.
32
The discrimination 1 complaint, by definition, occurs in the first
2 stage of the litigation. Therefore, the complaint also benefits from
3 the temporary presumption and must be viewed in light of the
4 plaintiff’s minimal burden to show discriminatory intent. The
5 plaintiff cannot reasonably be required to allege more facts in the
6 complaint than the plaintiff would need to defeat a motion for
7 summary judgment made prior to the defendant’s furnishing of a
8 non‐discriminatory justification. Cf. Swierkiewicz, 534 U.S. at 511‐12
9 (“It . . . seems incongruous to require a plaintiff, in order to survive a
10 motion to dismiss, to plead more facts than he may ultimately need
11 to prove to succeed on the merits if direct evidence of discrimination
12 is discovered.”).
13 In other words, absent direct evidence of discrimination, what
14 must be plausibly supported by facts alleged in the complaint is that
15 the plaintiff is a member of a protected class, was qualified, suffered
16 an adverse employment action, and has at least minimal support for
33
the proposition 1 that the employer was motivated by discriminatory
2 intent. The facts alleged must give plausible support to the reduced
3 requirements that arise under McDonnell Douglas in the initial phase
4 of a Title VII litigation.9 The facts required by Iqbal to be alleged in
5 the complaint need not give plausible support to the ultimate
6 question of whether the adverse employment action was attributable
7 to discrimination. They need only give plausible support to a
8 minimal inference of discriminatory motivation.
9 We now turn to the assessment of the sufficiency of
10 Littlejohn’s several claims.
11 II. Disparate Treatment Claim
12 Littlejohn alleges disparate treatment based on race as a result
13 of her demotion from EEO Director to a lower‐paying, non14
managerial analyst position in March 2011. Littlejohn’s disparate
9 The First Circuit perhaps intended to convey a similar understanding of the
interplay between Iqbal and the McDonnell Douglas quartet when it stated that
“the elements of a prima facie case may be used as a prism to shed light upon the
plausibility of the claim.” Rodriguez‐Reyes v. Molina‐Rodriguez, 711 F.3d 49, 54 (1st
Cir. 2013).
34
treatment claim under Title VII, 1 § 1981, and § 1983 is subject to the
2 burden‐shifting evidentiary framework set forth in McDonnell
3 Douglas. See Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir.
4 2010). As set forth above, because this appeal involves review of a
5 motion to dismiss, we focus only on whether the allegations in the
6 complaint give plausible support to the reduced prima facie
7 requirements that arise under McDonnell Douglas in the initial phase
8 of a litigation.
9 A. Littlejohn’s Disparate Treatment Allegations
10 The parties do not dispute that Littlejohn’s allegations would
11 be sufficient to establish the first three prongs of a prima facie case
12 of discrimination in the initial phase, as the complaint alleges that
13 she belongs to a protected class (black), was qualified for the EEO
14 Director position at issue, and suffered an adverse employment
15 action through her demotion.10 Rather, the parties dispute whether
10 To the extent Littlejohn attempts to point to exclusion from meetings involving
the ACS/DJJ merger as part of her disparate treatment claim, such exclusion does
35
the 1 allegations give plausible support to the conclusion that the
2 demotion occurred under circumstances giving rise to an inference
3 of discrimination.
4 An inference of discrimination can arise from circumstances
5 including, but not limited to, “the employer’s criticism of the
6 plaintiff’s performance in ethnically degrading terms; or its
7 invidious comments about others in the employee’s protected
8 group; or the more favorable treatment of employees not in the
9 protected group; or the sequence of events leading to the plaintiff’s
10 discharge.” Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)
11 (internal quotation marks omitted). As discussed previously, none
not constitute an adverse employment action within the meaning of Title VII. An
adverse employment action is “more disruptive than a mere inconvenience or an
alteration of job responsibilities.” Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640
(2d Cir. 2000) (internal quotation marks omitted). It is “a materially significant
disadvantage with respect to the terms of [the plaintiff’s] employment.” Williams
v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (emphasis added)
(internal quotation marks omitted). Examples of materially significant
disadvantages include termination, demotion, “a less distinguished title, a
material loss of benefits, [or] significantly diminished material responsibilities.”
Galabya, 202 F.3d at 640. Baker’s failure to include Littlejohn in the decisionmaking
process of the merger did not “significantly diminish[]” Littlejohn’s
responsibilities. Id.
36
of Defendants’ actions 1 directly indicates racial bias. Additionally, to
2 the extent Littlejohn attempts to rely on adverse employment actions
3 taken against other employees who worked for different agencies
4 and who had different jobs, see Compl. ¶¶ 17‐24, the district court
5 correctly concluded that adverse actions taken against employees
6 who are not similarly situated cannot establish an inference of
7 discrimination. See Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d
8 Cir. 2003) (explaining that a plaintiff attempting to “show[] that the
9 employer treated [her] less favorably than a similarly situated
10 employee outside [her] protected group . . . must show she was
11 similarly situated in all material respects to the individuals with
12 whom she seeks to compare herself.” (internal quotation marks
13 omitted)).
14 However, an inference of discrimination also arises when an
15 employer replaces a terminated or demoted employee with an
16 individual outside the employee’s protected class. See, e.g., Carlton v.
37
Mystic Transp., Inc., 202 1 F.3d 129, 135 (2d Cir. 2000) (“[A] plaintiff has
2 demonstrated an inference of age discrimination and thus
3 established a prima facie case . . . where the majority of plaintiff’s
4 responsibilities were transferred to a younger co‐worker.”); de la
5 Cruz v. N.Y.C. Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 20
6 (2d Cir. 1996) (“As a Puerto Rican, de la Cruz is a member of a
7 protected class. Because de la Cruz was replaced by a black female,
8 he also satisfies the fourth prong of the prima facie case.”); Cook v.
9 Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1239 (2d Cir. 1995) (“To
10 establish a prima facie case of gender discrimination, a female
11 plaintiff must show that she was qualified for the position, that her
12 employer discharged her, and that the employer sought or hired a
13 male to replace her.”). As we have explained, “the evidence
14 necessary to satisfy th[e] initial burden” of establishing that an
15 adverse employment action occurred under circumstances giving
16 rise to an inference of discrimination is “minimal.” Zimmermann v.
38
Assocs. First Capital Corp., 1 251 F.3d 376, 381 (2d Cir. 2001). The fact
2 that a plaintiff was replaced by someone outside the protected class
3 will ordinarily suffice for the required inference of discrimination at
4 the initial prima facie stage of the Title VII analysis, including at the
5 pleading stage. Id.
6 Littlejohn alleges that she was replaced by a white ACS
7 employee, Fredda Monn, after she was demoted from EEO Director.
8 Littlejohn also alleges that Monn was less qualified for the position.
9 According to Littlejohn’s complaint, Monn had “no prior EEO
10 experience,” as she “was previously the Director of the
11 Accountability/Review Unit that had nothing to do with EEO
12 matters” but rather “involved the comprehensive review of child
13 welfare case practices.” Compl. ¶ 78. Littlejohn’s factual allegations
14 are more than sufficient to make plausible her claim that her
15 demotion occurred under circumstances giving rise to an inference
39
1 of discrimination. See Zimmermann, 251 F.3d at 381.11 Accordingly,
2 we hold that Littlejohn’s complaint alleges sufficient facts to satisfy
3 the requirements of Iqbal. The district court therefore erred in
4 dismissing this claim.
5 B. Liability of the Individual and City Defendants
6 We must now determine, based on these allegations, which
7 Defendants must face Littlejohn’s disparate treatment claim under
8 Title VII and §§ 1981 and 1983. We first note that Title VII “does not
9 create liability in individual supervisors and co‐workers who are not
10 the plaintiffs’ actual employers.” Raspardo v. Carlone, 770 F.3d 97,
11 113 (2d Cir. 2014). Thus, Littlejohn’s disparate treatment claim
11 Defendants, citing Harding v. Wachovia Capital Markets, LLC, 541 F. App’x 9 (2d
Cir. 2013), argue that Littlejohn needed to plead factual allegations indicating
that her qualifications were “so superior” to those of Monn that no reasonable
employer could have chosen Monn over Littlejohn for the position. Defs.’ Br. 27.
Harding, however, involved a plaintiff’s failure to demonstrate that the
defendants’ non‐discriminatory reasons for not promoting him were pretextual
on a motion for summary judgment. 541 F. App’x at 12‐13. At the prima facie
stage, “the mere fact that a plaintiff was replaced by someone outside the
protected class will suffice for the required inference of discrimination.”
Zimmermann, 251 F.3d at 381.
40
under Title 1 VII fails as to Defendants Baker, Mattingly,12 and
2 Stradford, but survives as to her employer, the City.
3 Littlejohn’s disparate treatment claim under §§ 1981 and 1983
4 fails as to Mattingly and Stradford. An individual may be held
5 liable under §§ 1981 and 1983 only if that individual is “personally
6 involved in the alleged deprivation.” Back v. Hastings on Hudson
7 Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (§ 1983);
8 Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004) (§ 1981);
9 see also Raspardo, 770 F.3d at 116 (“[Section] 1983 requires individual,
10 personalized liability on the part of each government defendant. . . .
11 ‘[B]ecause vicarious liability is inapplicable to . . . § 1983 suits, a
12 plaintiff must plead that each Government‐official defendant,
13 through the official’s own individual actions, has violated the
12 Although the complaint also alleges suit against Mattingly in his official
capacity, Littlejohn does not argue on appeal that the district court erred in
dismissing her claims against Mattingly in his official capacity. We therefore
deem the argument forfeited. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
1998) (“Issues not sufficiently argued in the briefs are considered waived and
normally will not be addressed on appeal.”).
41
Constitution.’” (second 1 ellipsis in original) (quoting Iqbal, 556 U.S. at
2 676)). Personal involvement can be established by showing that:
3 (1) the defendant participated directly in the alleged
4 constitutional violation, (2) the defendant, after being
5 informed of the violation through a report or appeal,
6 failed to remedy the wrong, (3) the defendant created a
7 policy or custom under which unconstitutional
8 practices occurred, or allowed the continuance of such a
9 policy or custom, (4) the defendant was grossly
10 negligent in supervising subordinates who committed
11 the wrongful acts, or (5) the defendant exhibited
12 deliberate indifference . . . by failing to act on
13 information indicating that unconstitutional acts were
14 occurring.
15 Back, 365 F.3d at 127. In addition to fulfilling one of these
16 requirements, “a plaintiff must also establish that the supervisor’s
17 actions were the proximate cause of the plaintiff’s constitutional
18 deprivation. Finally, as with individual liability, in the § 1983
19 context, a plaintiff must establish that a supervisor’s behavior
20 constituted intentional discrimination on the basis of a protected
21 characteristic . . . .” Raspardo, 770 F.3d at 116 (citation omitted).
42
Littlejohn does not 1 allege that Mattingly or Stradford had any
2 personal involvement in Littlejohn’s demotion, as Littlejohn
3 concedes that Baker alone made the decision to demote her. In fact,
4 Littlejohn alleges that Mattingly “encouraged” Littlejohn to “be part
5 of the panel of managers that implemented the intake of DJJ.”
6 Compl. ¶ 43. Nothing in the complaint could lead to an inference
7 that Mattingly personally participated in Baker’s decision to demote
8 Littlejohn. Nor do Mattingly’s statements that Baker “was hurt” and
9 that Baker “wields a lot of power around here” create a plausible
10 inference that Mattingly was grossly negligent as Baker’s supervisor
11 in allowing Baker to demote her. Id. ¶ 51. Similarly, Stradford’s
12 alleged harassment was relevant only to Littlejohn’s sexual
13 harassment claim, not to Littlejohn’s demotion. Therefore, because
14 only Baker was personally involved in the decision to demote
15 Littlejohn, Littlejohn’s disparate treatment claim under §§ 1981 and
16 1983 survives only against Baker.
43
1 Finally, Littlejohn’s disparate treatment claim against the City
2 fails under §§ 1981 and 1983. When a defendant sued for
3 discrimination under §§ 1981 or 1983 is a municipality, “the plaintiff
4 is required to show that the challenged acts were performed
5 pursuant to a municipal policy or custom.” Patterson, 375 F.3d at 226
6 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733‐36 (1989)
7 (§ 1981); Monell, 436 U.S. at 692‐94 (§ 1983)). The plaintiff “need not
8 identify an express rule or regulation,” but can show that “a
9 discriminatory practice of municipal officials was so persistent or
10 widespread as to constitute a custom or usage with the force of law,
11 or that a discriminatory practice of subordinate employees was so
12 manifest as to imply the constructive acquiescence of senior policy13
making officials.” Id. (citation and internal quotation marks
14 omitted). Here, Littlejohn does not allege a persistent or widespread
15 municipal policy or “custom . . . with the force of law” that enabled
16 the discrimination against her—i.e., her demotion—other than her
44
general and 1 conclusory allegation that there was such a policy.
2 Littlejohn’s claim against the City is, at bottom, premised on a
3 theory of respondeat superior for Baker’s actions, which cannot be the
4 basis of municipal defendant liability under §§ 1981 or 1983. Id.
5 Additionally, Baker’s decision to demote Littlejohn cannot establish
6 that “a discriminatory practice of subordinate employees was so
7 manifest as to imply the constructive acquiescence of senior policy8
making officials.” Id. (internal quotation marks omitted). True, a
9 “single unlawful discharge, if ordered by a person whose edicts or
10 acts may fairly be said to represent official policy, can, by itself,
11 support a claim against a municipality.” Back, 365 F.3d at 128
12 (internal quotation marks omitted). But Baker was not a final
13 municipal policymaker such that her isolated personnel decision to
14 demote Littlejohn could be said to represent official City policy. See,
15 e.g., Soto v. Schembri, 960 F. Supp. 751, 759 (S.D.N.Y. 1997) (noting
16 that “[t]he New York City Charter vests final policymaking
45
authority in the Mayor 1 and the City Council” and that “[t]he Charter
2 vests policymaking authority with respect to personnel decisions
3 with the [City’s] Personnel Director”).
4 In sum, Littlejohn’s disparate treatment claim with respect to
5 her demotion survives against the City under Title VII, and against
6 Defendant Baker under §§ 1981 and 1983.13 Littlejohn’s disparate
7 treatment claim against Defendants Mattingly and Stradford was
8 properly dismissed by the district court.
9 III. Retaliation Claim
10 Littlejohn also claims she was retaliated against because of her
11 complaints about racial discrimination in the reorganization process
12 following the merger of ACS and DJJ. Retaliation claims under Title
13 It is uncontested at this stage that Baker was acting under color of state law
when she demoted Littlejohn, as is required for § 1983 liability. See, e.g., Annis v.
Cnty. of Westchester, 36 F.3d 251, 254 (2d Cir. 1994) (“There can be no question
that defendants . . . are, in their personal capacities, amenable to suit under [§
1983], inasmuch as they were conducting themselves as supervisors for a public
employer and thus were acting under color of state law [when they allegedly
discriminated against the plaintiff].”).
46
VII and § 198114 are both 1 analyzed pursuant to Title VII principles
2 and the McDonnell Douglas burden‐shifting evidentiary framework.
3 See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). Section 704(a) of
4 Title VII includes an anti‐retaliation provision that makes it
5 unlawful “for an employer to discriminate against any . . .
6 employee[] . . . because [that individual] opposed any practice”
7 made unlawful by Title VII or “made a charge, testified, assisted, or
8 participated in” a Title VII investigation or proceeding. 42 U.S.C.
9 § 2000e‐3(a). To establish a presumption of retaliation at the initial
10 stage of a Title VII litigation, a plaintiff must present evidence that
11 shows “(1) participation in a protected activity; (2) that the
12 defendant knew of the protected activity; (3) an adverse
13 employment action; and (4) a causal connection between the
14 protected activity and the adverse employment action.” Hicks, 593
14 The Equal Protection Clause does not protect against retaliation due to
complaints of racial discrimination. Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir.
1996). Littlejohn’s retaliation claim therefore fails under § 1983. Section 1981,
however, does encompass retaliation claims. See CBOCS W., Inc. v. Humphries,
553 U.S. 442, 446 (2008).
47
F.3d at 164 (internal quotation marks 1 omitted). As with our analysis
2 of the disparate treatment claim, the allegations in the complaint
3 need only give plausible support to the reduced prima facie
4 requirements that arise under McDonnell Douglas in the initial phase
5 of a Title VII litigation.
6 The parties do not dispute that Littlejohn’s allegations, taken
7 as true, would suffice to establish the second and third prongs of a
8 prima facie case of retaliation. Defendants certainly knew of
9 Littlejohn’s complaints of discrimination in the ACS/DJJ merger
10 process, and Littlejohn’s demotion constitutes an adverse
11 employment action.15 The parties dispute, however, whether
12 Littlejohn’s actions constitute protected activities, and whether
13 Littlejohn has plausibly alleged a causal connection between the
14 protected activities and the adverse employment action.
15 As described above, only Littlejohn’s demotion constitutes an adverse
employment action, not her exclusion from meetings involving the ACS/DJJ
merger. See Galabya, 202 F.3d at 640. In any case, Littlejohn was excluded from
meetings before she began complaining about discrimination in the merger
process, so that exclusion could not have been in retaliation for her complaints.
48
1 A. Protected Activities Under § 704(a)
2 We first examine whether Littlejohn participated in a
3 “protected activity” under the retaliation provisions of Title VII. For
4 purposes of determining whether an activity is protected, § 704(a)
5 includes “both an opposition clause and a participation clause.”
6 Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 48 (2d Cir. 2012). The
7 opposition clause makes it unlawful for an employer to retaliate
8 against an individual because she “opposed any practice” made
9 unlawful by Title VII, while the participation clause makes it
10 unlawful to retaliate against an individual because she “made a
11 charge, testified, assisted, or participated in any manner in an
12 investigation, proceeding, or hearing under” Title VII. Id. (quoting
13 42 U.S.C. § 2000e‐3(a)). We have recently made clear that the
14 participation clause only encompasses participation in formal EEOC
15 proceedings; it “does not include participation in an internal
49
employer investigation 1 unrelated to a formal EEOC charge.” Id. at
2 49.
3 The district court concluded that Littlejohn’s complaints of
4 racial discrimination to Mattingly and Baker during the ACS/DJJ
5 merger were not protected activities under either § 704(a)’s
6 participation clause or opposition clause. The district court was
7 correct to conclude that Littlejohn’s internal complaints of
8 discrimination prior to her EEOC proceedings, which commenced in
9 October 2011, were not protected activities under the participation
10 clause, as those complaints were “unrelated to a formal EEOC
11 charge.” Id. However, the district court erred in concluding that
12 Littlejohn’s complaints were not protected activities under the
13 opposition clause.
14 This Court has not addressed the extent to which an
15 employee’s complaints of discrimination are protected activities
16 under the opposition clause when that employee’s job
50
1 responsibilities involve preventing and investigating discrimination
2 within the company or agency by which she is employed. Several
3 district courts in this Circuit, focusing largely on the scope of an
4 employee’s job responsibilities, have held that “a supervisor’s
5 involvement, as part of his routine job duties, in reporting or
6 investigating incidents of harassment between employees under his
7 supervision does not qualify as protected activity.” Sarkis v. Ollie’s
8 Bargain Outlet, No. 10‐CV‐6382 CJS, 2013 WL 1289411, at *13
9 (W.D.N.Y. Mar. 26, 2013) (emphasis omitted); see also Adams v.
10 Northstar Location Servs., LLC, No. 09‐CV‐1063‐JTC, 2010 WL
11 3911415, at *4 (W.D.N.Y. Oct. 5, 2010) (“[P]laintiff’s actions in
12 investigating the complaint of race‐based harassment would not
13 constitute protected activity, as plaintiff was acting in the scope of
14 her employment as a human resources director by interviewing the
15 witnesses to the incident.”); Ezuma v. City Univ. of N.Y., 665 F. Supp.
16 2d 116, 123‐24 (E.D.N.Y. 2009) (“[I]f an academic chairperson is
51
required as part of his job to 1 report incidents of sexual harassment
2 that come to his attention, as is the case here, the mere performance
3 of that function is not ‘opposition’ to his employer and does not
4 constitute protected activity.”).
5 The Supreme Court, however, recently clarified in Crawford v.
6 Metropolitan Government of Nashville & Davidson County that, “[w]hen
7 an employee communicates to her employer a belief that the
8 employer has engaged in . . . a form of employment discrimination,
9 that communication virtually always constitutes the employee’s
10 opposition to the activity.” 555 U.S. 271, 276 (2009) (first emphasis
11 added) (internal quotation marks omitted). Crawford stated that any
12 activity designed “to resist or antagonize . . . ; to contend against; to
13 confront; resist; [or] withstand” discrimination prohibited by Title
14 VII constitutes a protected oppositional activity.16 Id. (internal
16 Prior to Crawford, certain Circuits had applied the so‐called “manager rule” to
retaliation claims under the Fair Labor Standards Act, which other courts, in
turn, imported to claims under Title VII. This rule provided that complaints of
discrimination within the scope of a manager’s job duties are not protected
52
quotation marks omitted). 1 Crawford is consistent with our prior
2 decisions, in which we have explained that protected activities are
3 not limited to complaints involving discrimination against the
4 complainant herself, but also extend to complaints of discrimination
5 on behalf of other employees and complaints of discriminatory
6 practices generally: “§ 704(a)’s opposition clause protects [formal] as
7 well [as] informal protests of discriminatory employment practices,
8 including making complaints to management, writing critical letters
9 to customers, protesting against discrimination by industry or by
activities, and that, in order to engage in protected activity, the employee must
“step outside his or her role of representing the company” and take action
adverse to the company. McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1486 (10th Cir.
1996); see also Brush v. Sears Holdings Corp., 466 F. App’x 781, 787 (11th Cir. 2012);
Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 627‐28 (5th Cir. 2008). It is unclear
whether Crawford superseded the manager rule. See Weeks v. Kansas, 503 F.
App’x 640, 643 (10th Cir. 2012) (explaining that “one might perhaps argue that
McKenzie’s rule itself has been superseded” by Crawford). But see Brush, 466 F.
App’x at 787 (“While Brush argues that Crawford has foreclosed the ‘manager
rule,’ we cannot agree.” (footnote omitted)); Collazo v. Bristol‐Myers Squibb Mfg.,
Inc., 617 F.3d 39, 49 (1st Cir. 2010) (“assum[ing],” post‐Crawford, that “to engage
in protected conduct under Title VII’s retaliation provision, an employee must
step outside his ordinary employment role of representing the company and take
action adverse to the company”). In any event, we decline to adopt the manager
rule here. The manager rule’s focus on an employee’s job duties, rather than the
oppositional nature of the employee’s complaints or criticisms, is inapposite in
the context of Title VII retaliation claims.
53
society in 1 general, and expressing support of co‐workers who have
2 filed formal charges.” Sumner v. U.S. Postal Serv., 899 F.2d 203, 209
3 (2d Cir. 1990).
4 Significantly, neither Crawford nor Sumner restricted their
5 holdings to non‐managers or to employees whose job
6 responsibilities are untethered to monitoring discrimination or
7 enforcing non‐discrimination policies. And for good reason: The
8 plain language of § 704(a)’s opposition clause—which prohibits
9 employers from “discriminat[ing] against any . . . employee[] . . .
10 because he has opposed any practice made an unlawful employment
11 practice by this subchapter,” 42 U.S.C. § 2000e‐3(a) (emphasis
12 added)—does not distinguish among entry‐level employees,
13 managers, and any other type of employee.
14 Defendants suggest that allowing personnel officers to bring
15 retaliation claims under the opposition clause based on complaints
16 lodged in connection with their official duties would create an
54
automatic prima facie 1 case of retaliation for any terminated human
2 resources or EEO employee. Since such employees’ daily work
3 involves reporting on claims of discrimination in ways that could be
4 construed as “opposing” discrimination, Defendants reason that any
5 adverse action taken against those employees would likely be in
6 close proximity to such opposition and could consequently risk
7 embroiling an employer in gratuitous litigation.
8 Whatever the merits of that argument, we are not empowered
9 to create exceptions to § 704(a) inconsistent with the statutory
10 language. In any event, we do not believe that our interpretation
11 will have any such dire effect. There is a significant distinction
12 between merely reporting or investigating other employees’
13 complaints of discrimination, which simply fulfills a personnel
14 manager’s daily duties, and communicating to the employer the
15 manager’s own “belief that the employer has engaged in . . . a form
16 of employment discrimination,” which “virtually always
55
1 constitutes” opposition notwithstanding the employee’s underlying
2 job responsibilities. Crawford, 555 U.S. at 276 (internal quotation
3 marks omitted). Where the officer merely transmits or investigates a
4 discrimination claim without expressing her own support for that
5 claim, “the mere passing on of [a complainant’s] statements by a
6 supervisor or human resources manager is not inherently
7 ‘oppositional’ in the same way as the victim’s own report of that
8 misconduct.” Ezuma, 665 F. Supp. 2d at 123.
9 Accordingly, consistent with Crawford, Sumner, and the plain
10 language of § 704(a), we hold as follows: To the extent an employee
11 is required as part of her job duties to report or investigate other
12 employees’ complaints of discrimination, such reporting or
13 investigating by itself is not a protected activity under § 704(a)’s
14 opposition clause, because merely to convey others’ complaints of
15 discrimination is not to oppose practices made unlawful by Title VII.
16 But if an employee—even one whose job responsibilities involve
56
1 investigating complaints of discrimination—actively “support[s]”
2 other employees in asserting their Title VII rights or personally
3 “complain[s]” or is “critical” about the “discriminatory employment
4 practices” of her employer, that employee has engaged in a
5 protected activity under § 704(a)’s opposition clause. Sumner, 899
6 F.2d at 209.
7 Here, Littlejohn alleges that she, “in her capacity as Director of
8 EEO[,] repeatedly objected and complained to defendants Mattingly
9 and Baker about defendants’ selection process and failure to abide
10 by proper anti‐discrimination policies and procedures.” Compl.
11 ¶ 64. Littlejohn also alleges that she “objected to defendants
12 Mattingly and Bakers’ discriminatory policies during scheduled
13 meetings with them” over the course of more than a year. Id. ¶ 65.
14 Littlejohn argues on appeal that she stepped outside her role as EEO
15 Director when she advocated for minority DJJ employees, but
16 regardless of whether she made these complaints in her capacity as
57
1 EEO Director, “§ 704(a)’s opposition clause protects” such
2 “complaints to management” and “protest[s] against
3 discrimination.” Sumner, 899 F.2d at 209. Littlejohn was not simply
4 conveying others’ complaints of discrimination to Mattingly and
5 Baker or alerting them to Title VII’s mandates; she was complaining
6 about what she believed was unlawful discrimination in the
7 personnel decision‐making process during the ACS/DJJ merger. Her
8 complaints of discrimination were protected activities under
9 § 704(a)’s opposition clause.
10 B. Causal Connection Between the Protected Activity
11 and the Adverse Employment Action
12 We next consider whether Littlejohn pleaded a causal
13 connection between the protected activities and her demotion.
14 Although the district court cabined Littlejohn’s protected activities
15 to two discrete time periods—between January and April 2010, and
16 after October 2010—Littlejohn in fact alleges that “[d]uring the
17 above stated time period [between January 2010 and March 2011],
58
Plaintiff in her capacity as 1 Director of EEO repeatedly objected and
2 complained to defendants Mattingly and Baker about defendants’
3 selection process and failure to abide by proper policies and
4 procedures.” Compl. ¶¶ 63‐64. Littlejohn also claimed that “[f]rom
5 on or about January 2010 to March 14, 2011 Plaintiff objected to
6 defendants Mattingly and Bakers’ discriminatory policies during
7 scheduled meetings with them.” Id. ¶ 65 (emphasis added).
8 Accordingly, Littlejohn alleges that her complaints about racial
9 discrimination began around the time of the ACS/DJJ merger and
10 continued until she was demoted from EEO Director.
11 A causal connection in retaliation claims can be shown either
12 “(1) indirectly, by showing that the protected activity was followed
13 closely by discriminatory treatment, or through other circumstantial
14 evidence such as disparate treatment of fellow employees who
15 engaged in similar conduct; or (2) directly, through evidence of
16 retaliatory animus directed against the plaintiff by the defendant.”
59
Gordon v. N.Y.C. Bd. of Educ., 1 232 F.3d 111, 117 (2d Cir. 2000). As
2 discussed above, none of Defendants’ actions directly indicates
3 racial bias, nor do those actions directly establish retaliatory animus
4 based on Littlejohn’s complaints of discrimination during the
5 ACS/DJJ merger.
6 However, Littlejohn sufficiently pleaded facts that would
7 indirectly establish causation. According to Littlejohn’s complaint,
8 her demotion closely followed her protests of discrimination.
9 Although the district court concluded that Littlejohn’s complaints of
10 discrimination began over a year before her March 2011 demotion,
11 Littlejohn alleges that she “objected and complained” to Defendants
12 through March 14, 2011—the day of her demotion—and described
13 in her complaint specific instances in which she objected to
14 discrimination during the year preceding her demotion. Compl.
15 ¶¶ 48‐51, 65. At the motion to dismiss stage, we accept these
16 allegations as true and draw all inferences in Littlejohn’s favor. See
60
Ofori‐Tenkorang, 460 F.3d at 300. 1 We have “not drawn a bright line
2 to define the outer limits beyond which a temporal relationship is
3 too attenuated to establish a causal relationship between the exercise
4 of a federal constitutional right and an allegedly retaliatory action.”
5 Gorman‐Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d
6 545, 554 (2d Cir. 2001). But Littlejohn’s allegations that the demotion
7 occurred within days after her complaints of discrimination are
8 sufficient to plausibly support an indirect inference of causation.17
9 Because Littlejohn’s complaint alleges that her “protected
10 activity was followed closely by discriminatory treatment,” Gordon,
11 232 F.3d at 117, and because Littlejohn alleges facts that would be
12 sufficient to establish the other elements of a prima facie case of
13 retaliation, her allegations were more than sufficient to withstand
17 Littlejohn’s formal EEOC proceedings beginning in October 2011, however, are
not causally connected to her demotion because those proceedings began more
than six months after her demotion in March. Thus, her demotion cannot have
occurred in retaliation for them. Similarly, Littlejohn’s participation as a witness
for fellow employee Tonia Haynes in Haynes’s discrimination suit against ACS
occurred in December 2011, well after Littlejohn’s demotion.
61
the instant motion to 1 dismiss. The district court erred in dismissing
2 this claim. Littlejohn’s retaliation claim therefore survives against
3 the City under Title VII and survives against Defendant Baker under
4 § 1981. As with her disparate treatment claim, Littlejohn’s
5 retaliation claim against Defendants Mattingly and Stradford was
6 properly dismissed because they were not involved in her demotion.
7 IV. Hostile Work Environment Claim
8 Littlejohn alleges that individual Defendants Mattingly and
9 Baker created a hostile work environment based on Littlejohn’s race
10 from January 2010 to September 2012 in violation of Title VII, § 1981,
11 and § 1983. Title VII prohibits an employer from discriminating in
12 “compensation, terms, conditions, or privileges of employment,
13 because of [an] individual’s race, color, religion, sex or national
14 origin.” 42 U.S.C. § 2000e‐2(a)(1). “The phrase terms, conditions, or
15 privileges of employment evinces a congressional intent to strike at
16 the entire spectrum of disparate treatment . . . , which includes
62
requiring people to work 1 in a discriminatorily hostile or abusive
2 environment.” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 175 (2d Cir.
3 2012) (internal quotation marks omitted). Section 1981 provides that
4 “[a]ll persons within the jurisdiction of the United States shall have
5 the same right in every State . . . to the full and equal benefit of all
6 laws and proceedings for the security of persons and property as is
7 enjoyed by white citizens.” 42 U.S.C. § 1981. Section 1981 has been
8 interpreted to “provide[] a cause of action for race‐based
9 employment discrimination based on a hostile work environment.”
10 Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir.
11 2000). Finally, § 1983 provides that “[e]very person who, under
12 color of any statute, ordinance, regulation, custom, or usage, of any
13 State . . . subjects, or causes to be subjected, any citizen of the United
14 States or other person within the jurisdiction thereof to the
15 deprivation of any rights, privileges, or immunities secured by the
16 Constitution and laws, shall be liable to the party injured in an
63
action at 1 law.” 42 U.S.C. § 1983. Section 1983, through its
2 application of the Equal Protection Clause of the Fourteenth
3 Amendment, “protect[s] public employees from various forms of
4 discrimination, including hostile work environment and disparate
5 treatment” on the basis of race. Demoret v. Zegarelli, 451 F.3d 140,
6 149 (2d Cir. 2006).
7 To establish a hostile work environment under Title VII,
8 § 1981, or § 1983, a plaintiff must show that “the workplace is
9 permeated with discriminatory intimidation, ridicule, and insult that
10 is sufficiently severe or pervasive to alter the conditions of the
11 victim’s employment and create an abusive working environment.”
12 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and
13 internal quotation marks omitted). “This standard has both
14 objective and subjective components: the conduct complained of
15 must be severe or pervasive enough that a reasonable person would
16 find it hostile or abusive, and the victim must subjectively perceive
64
the work environment to 1 be abusive.” Raspardo, 770 F.3d at 114
2 (citing Harris, 510 U.S. at 21‐22). “The incidents complained of must
3 be more than episodic; they must be sufficiently continuous and
4 concerted in order to be deemed pervasive.” Id. (internal quotation
5 marks omitted). In determining whether a plaintiff suffered a
6 hostile work environment, we must consider the totality of the
7 circumstances, including “the frequency of the discriminatory
8 conduct; its severity; whether it is physically threatening or
9 humiliating, or a mere offensive utterance; and whether it
10 unreasonably interferes with an employee’s work performance.”
11 Harris, 510 U.S. at 23.
12 Littlejohn’s hostile work environment claim is predicated on
13 the following allegations18: Baker made negative statements about
18 Because there is nothing in Littlejohn’s EEOC charge that would have put the
agency on notice that she was alleging hostile work environment on the basis of
sex or sexual harassment, the EEOC cannot reasonably have been expected to
investigate whether she experienced a hostile work environment based on sex.
We therefore do not consider Littlejohn’s sexual harassment allegations against
Stradford in our analysis, as such allegations are not “reasonably related” to her
65
Littlejohn to Mattingly; Baker was 1 impatient and used harsh tones
2 with Littlejohn; Baker distanced herself from Littlejohn when she
3 was nearby; Baker declined to meet with Littlejohn; Baker required
4 Littlejohn to recreate reasonable accommodation logs; Baker
5 replaced Littlejohn at meetings; Baker wrongfully reprimanded
6 Littlejohn; and Baker increased Littlejohn’s reporting schedule.
7 Baker also sarcastically told Littlejohn “you feel like you are being
8 left out,” and that Littlejohn did not “understand the culture” at
9 ACS. Compl. ¶¶ 49, 77.
10 These allegations could not support a finding of hostile work
11 environment that is so severe or pervasive as to have altered the
12 conditions of Littlejohn’s employment. See, e.g., Fleming v. MaxMara
13 USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (concluding that no
14 hostile work environment existed even though “defendants wrongly
15 excluded [the plaintiff] from meetings, excessively criticized her
hostile work environment claim based on race and color, as discussed below.
Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (per curiam).
66
work, refused to answer 1 work‐related questions, arbitrarily imposed
2 duties outside of her responsibilities, threw books, and sent rude
3 emails to her”); see also Davis‐Molinia v. Port Auth. of N.Y. & N.J., No.
4 08 CV 7586(GBD), 2011 WL 4000997, at *11 (S.D.N.Y., Aug. 19, 2011)
5 (finding that “diminished [job] responsibilities,” “exclu[sion] from
6 staff meetings,” deliberate “avoid[ance],” “yell[ing] and talk[ing]
7 down to,” and an increased workload of menial tasks, among other
8 factors, was not enough to show that defendants’ conduct was
9 sufficiently severe or pervasive), aff’d, 488 F. App’x 530 (2d Cir.
10 2012). The claim was therefore properly dismissed.
11 V. Sexual Harassment Claim
12 Littlejohn alleges that Defendant Stradford continuously
13 sexually harassed her in violation of Title VII. The district court
14 found that Littlejohn did not exhaust her administrative remedies
15 with respect to this claim and dismissed it for lack of jurisdiction.19
19 The district court held that Littlejohn’s failure to exhaust administrative
remedies precluded the court from asserting jurisdiction. While Littlejohn’s
67
We 1 agree that Littlejohn’s sexual harassment claim was properly
2 dismissed for failure to exhaust her administrative remedies.
3 Before bringing a Title VII suit in federal court, an individual
4 must first present “the claims forming the basis of such a suit . . . in a
5 complaint to the EEOC or the equivalent state agency.” Williams v.
6 N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (per curiam) (citing
7 42 U.S.C. § 2000e‐5). The complainant must file the complaint with
8 the relevant agency “within 300 days of the alleged discriminatory
9 conduct and, before bringing suit, must receive a ‘Notice of Right to
10 Sue’ letter from the EEOC.” Id. Nevertheless, claims not raised in
11 an EEOC complaint may still be part of the complaint later filed in
12 federal court “if they are ‘reasonably related’ to the claim filed with
13 the agency.” Id. at 70. A claim is reasonably related to the filed
14 claim “if the conduct complained of would fall within the scope of
failure to exhaust her administrative remedies did justify the dismissal of the
claim, it was not for lack of jurisdiction. See Francis v. City of New York, 235 F.3d
763, 768 (2d Cir. 2000) (holding that exhaustion of administrative remedies is not
a “jurisdictional prerequisite” to a Title VII claim).
68
the EEOC 1 investigation which can reasonably be expected to grow
2 out of the charge that was made.” Deravin v. Kerik, 335 F.3d 195, 200‐
3 01 (2d Cir. 2003) (internal quotation marks omitted). In making such
4 a determination, we focus “on the factual allegations made in the
5 [EEOC] charge itself, describing the discriminatory conduct about
6 which a plaintiff is grieving.” Id. at 201 (alteration in original)
7 (internal quotation marks omitted). For instance, if the factual
8 allegations in the EEOC charge “suggest [two] forms of
9 discrimination”—even though the charge itself specifies only one—
10 “so that the agency receives adequate notice to investigate
11 discrimination on both bases,” the claims are reasonably related to
12 each other. Id. at 202. This exception to the exhaustion requirement
13 for reasonably related claims is “based on the recognition that EEOC
14 charges frequently are filled out by employees without the benefit of
15 counsel and that their primary purpose is to alert the EEOC to the
16 discrimination that a plaintiff claims [she] is suffering.” Id. at 201
69
(internal quotation 1 marks omitted); cf. Erickson v. Pardus, 551 U.S. 89,
2 94 (2007) (per curiam) (observing that “a pro se complaint, however
3 inartfully pleaded, must be held to less stringent standards than
4 formal pleadings drafted by lawyers” (internal quotation marks
5 omitted)).
6 In Littlejohn’s Intake Questionnaire and Charge of
7 Discrimination filed with the EEOC on October 21, 2011, and
8 February 2, 2012, respectively, Littlejohn claimed discrimination
9 based on race and color. In the Charge of Discrimination, Littlejohn
10 also claimed retaliation based on her complaints about such
11 discrimination. Yet on neither of these forms did Littlejohn claim
12 discrimination based on sex, even though there is a box to indicate
13 discrimination based on sex located directly next to those for race
14 and color. Nor did she reference Stradford or any of his alleged acts
15 of sexual harassment in those completed forms or in her
16 supplemental statements describing why she believed she was being
70
1 discriminated against. Indeed, Littlejohn’s Intake Questionnaire and
2 Charge of Discrimination do not include any factual allegations
3 whatsoever describing the alleged sexual harassment by Stradford,
4 even though the harassment allegedly began in March 2011, well
5 before she completed these forms.
6 We agree with the district court that Littlejohn’s sexual
7 harassment claim is not “reasonably related” to her EEOC
8 discrimination claims, which were based solely on race and color.
9 Stradford’s alleged sexual harassment does not “fall within the
10 scope of the EEOC investigation which can reasonably be expected
11 to grow out of the charge[s]” of race discrimination Littlejohn levied
12 against Baker and Mattingly, Deravin, 335 F.3d at 200‐01, as
13 Stradford had no involvement in the race discrimination that
14 allegedly occurred during the ACS/DJJ merger.
15 Littlejohn argues that the letter she sent to Kevin Berry, the
16 Director of the EEOC New York District Office, in which she
71
1 referenced an “additional charge of hostile work environment2
sexual harassment at the hands of [Stradford],” Littlejohn Aff., Ex.
3 11, itself constituted a charge of discrimination sufficient to fulfill
4 Title VII’s exhaustion requirements. However, we have made clear
5 that unsworn letters sent to the EEOC describing additional claims
6 of discrimination unrelated to the claims described in the EEOC
7 charge cannot “enlarge [the] scope [of the original charge] to include
8 new claims.” Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d Cir. 2001).
9 Although “EEOC regulations do allow ‘written statements’ of fact to
10 amend a charge,” those regulations allow such amendments “only
11 insofar as they ‘clarify and amplify allegations made’ in the original
12 charge or ‘alleg[e] additional acts which constitute unlawful
13 employment practices related to or growing out of the subject matter
14 of the original charge.’” Id. (quoting 29 C.F.R. § 1601.12(b)20)
20 Section 1601.12(b) provides, in relevant part, that “[a] charge may be amended
to cure technical defects or omissions, including failure to verify the charge, or to
clarify and amplify allegations made therein. Such amendments and amendments
alleging additional acts which constitute unlawful employment practices related
72
(alteration in original). A 1 letter sent to the EEOC regarding a charge
2 of discrimination is therefore “entitled to consideration only to the
3 extent that it could be deemed an amendment to the original charge
4 within the meaning of § 1601.12(b).” Id. It cannot “enlarge the scope
5 of the [original EEOC] charge to encompass new unlawful
6 employment practices or bases for discrimination.” Id.
7 Here, Littlejohn’s letter to Berry did not simply “clarify and
8 amplify allegations made in the original [EEOC] charge,” which
9 claimed discrimination based solely on race and color, but rather
10 included a “new unlawful employment practice[] or bas[i]s for
11 discrimination” based on sexual harassment. Id. (internal quotation
12 marks omitted).21 Littlejohn could have filed a separate charge with
to or growing out of the subject matter of the original charge will relate back to the
date the charge was first received.” 29 C.F.R. § 1601.12(b) (emphases added).
21 Furthermore, one of the purposes of an EEOC charge is to “provide[] the EEOC
with an opportunity to notify the prospective defendants and seek conciliation.”
Holowecki, 440 F.3d at 567. Littlejohn did not send Berry the letter attempting to
add a sexual harassment charge until after she received a letter from Berry
stating that her request that the EEOC grant her leave to bring a federal civil
action with respect to her race and color discrimination charges had been
73
the EEOC 1 alleging an additional basis of discrimination within the
2 appropriate limitations period, but she could not amend prior
3 unrelated charges to add this additional basis simply by sending
4 Berry an unsworn letter.22 See id.; 29 C.F.R. § 1601.12(b).
5 Accordingly, Littlejohn did not present “the claims forming the
6 basis” of her sexual harassment suit “in a complaint to the EEOC or
7 the equivalent state agency,” Williams, 458 F.3d at 69, and she
8 therefore failed to exhaust her administrative remedies as to that
9 claim. The district court properly dismissed her sexual harassment
10 claim.

* * *

22 This is hardly an unreasonable burden to impose, especially on Littlejohn,
whose previous job duties as ACS’s Director of EEO included investigating
charges of discrimination and counseling other employees on the procedures for
making such claims.
74
(1) Littlejohn’s 1 disparate treatment and retaliation claims against the
2 City under Title VII, (2) Littlejohn’s disparate treatment claim
3 against Defendant Baker under §§ 1981 and 1983, and (3) Littlejohn’s
4 retaliation claim against Baker under § 1981; AFFIRM the dismissal
5 of the other claims;23 and REMAND for proceedings consistent with
6 this opinion.
23 Littlejohn also raises, for the first time on appeal, a Monell claim against the
City for violating her First Amendment rights, as well as an equal protection
claim against Stradford for his alleged sexual harassment. Neither of these
claims were included in Littlejohn’s complaint or raised below, and we therefore
do not address them further.

Outcome: For the foregoing reasons, we VACATE the district court’s
judgment granting Defendants’ motion to dismiss with respect to
forwarded to the Department of Justice, which effectively terminated that
conciliatory process.

Plaintiff's Experts:

Defendant's Experts:

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