Claims of discrimination only need to plead facts supporting a “minimal plausible inference” of discriminatory intent

         In Doe v. Columbia University, No. 15 Civ. 01661 (July 29, 2016), the Second Circuit held that allegations supporting a “minimal plausible inference” of discriminatory intent are sufficient to plead that element because, under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), such allegations entitle the plaintiff to a temporary presumption of discrimination until the defendant give its reasons for the adverse action against the plaintiff.  Under this standard, a Columbia University student who had been suspended by the school for sexual misconduct alleged facts sufficient to support a claim sex discrimination under Title IX, 20 U.S.C. §§ 1681-1688.  In a footnote, the Second Circuit emphasized that the Second Circuit has “often vacated 12(b)(6) and 12(c) dismissals of complaints alleging discrimination” because of the temporary presumption to plaintiffs under McDonnell Douglas and its progeny.

         The last five years have seen an increasing number of lawsuits by men who have been disciplined for sexual misconduct in university proceedings.  The lawsuits have come about in the aftermath of the Department of Education’s Office for Civil Rights issuing a “Dear Colleague Letter” in 2011 stating that sexual violence in schools is a form of sexual harassment prohibited by Title IX along with additional guidance issued in 2014. This guidance focuses on the issue of student-on-student sexual harassment.

         As a result of the federal government pushing universities and colleges to change how they handle sexual assault, an increasing number of male students have being disciplined for sexual misconduct.  In turn, those men have alleged that they were discriminated against on the basis of their sex in violation of Title IX.  For example, as the Second Circuit noted in Doe, on April 24, 2014, twenty-three students filed complaints with the United States Department of Education for violations of Title IX and other laws, alleging that Columbia University mishandled incidents of sexual assault and misconduct on campus.

         After the District Court dismissed Doe’s complaint, Alison Frankel noted in an article that in only one case, Wells v. Xavier University (S.D. Ohio 2014), had a male student’s complaint not been dismissed.  Prior to the Second Circuit’s decision, the general perception has been that men faced a difficult path in pleading sex discrimination as made evident by the Title of Frankel’s article, “Men face high bar to claim discrimination by campus sex assault tribunals.” 

         Thus, the Second Circuit’s decision to vacate the dismissal is of national significance.  It is the first Court of Appeal’s decision to address the pleading requirements for men who allege sex discrimination in a university or college’s internal disciplinary process.  It is also significant that the Second Circuit emphasized the “minimal plausible inference” that plaintiff must satisfy as a result of the burden-shifting framework established in a McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and followed by Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993),  and Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000);

         These Supreme Court cases hold that, in actions alleging employment discrimination in violation of Title VII, the plaintiff needs to present only minimal evidence supporting an inference of discrimination in order to prevail unless the defendant furnishes a nondiscriminatory reason for the adverse action. Once the employer presents evidence of non-discriminatory reasons for the adverse action, the plaintiff must demonstrate that the proffered reason was not the true reason or the sole reason for the employment decision.  Plaintiff must then prove the defendant intentionally discriminated against her. In the employment context, an example of the minimal evidence supporting an inference of discriminatory motivation (sufficient to support a jury verdict) is that a job applied for by the plaintiff remained open after plaintiff’s rejection and that the employer continued to seek applicants from persons of plaintiff’s qualifications.  

         In Doe, the allegations the inference of bias against Doe (which were accepted as true because it was a motion to dismiss) supporting included that the university’s investigator and the panel (1) declined to seek out potential witnesses that Plaintiff had identified as sources of information favorable to him, (2) failed to act in accordance with university’s procedures designed to protect accused students, and (3), along with the reviewing Dean, reached conclusions that were incorrect and contrary to the weight of the evidence. 

         Other allegations gave “ample plausible support” to a bias with respect to sex.  In particular, Doe's complaint alleged that, prior to Doe’s disciplinary hearing, there was substantial criticism of the University in the student body and in the public media asserting that the university did not seriously take complaints of female students alleging sexual assault by male students.  The administration was aware of, and sensitive to, these criticisms so much that the President of the university called a University-wide open meeting with the Dean to discuss the issue.  “Against this factual background, it is entirely plausible that the University’s decision-makers and its investigator were motivated to favor the accusing female over the accused male, so as to protect themselves and the University from accusations that they had failed to protect female students from sexual assault.”