Colbert v. FSA Store, Inc.

Background

Brian Colbert sued FSA Store, Inc., Health-E Commerce, and Jeremy Miller, FSA Store’s founder and chief executive officer. Colbert alleged race discrimination under Title VII of the Civil Rights Act of 1964, Section 1981, the New York State Human Rights Law, and the New York City Human Rights Law. He also alleged that FSA Store and Health-E Commerce retaliated against him under those laws.

Colbert alleged that he is African-American and was hired in January 2017 as FSA Store’s chief revenue officer. He claimed that he performed successfully but was fired in July 2017, less than six months after he started. His allegations focused on Miller’s statements that Colbert should not act “too black,” was “culturally different,” and should adapt to the company’s “dominant” culture. Colbert also alleged that Miller made comments about his athletic abilities, told him to be less intimidating, singled him out for additional written justification before receiving a bonus, and fired him soon after Colbert raised concerns about racial diversity in senior leadership.

Motion and Legal Standard

The opinion states that the defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the federal discrimination claims under Title VII and Section 1981, as well as the aiding-and-abetting claims against Miller under the New York State and New York City laws. At the motion-to-dismiss stage, the court accepted the complaint’s factual allegations as true and asked whether they plausibly showed that the defendants were liable.

For a race-discrimination claim, the court explained that a plaintiff must plausibly allege an adverse employment action taken because of race. The court said a plaintiff may do so through direct evidence of discriminatory intent or circumstances supporting a minimal, plausible inference of discrimination. The court also explained that the New York State law claims use the same standards as federal discrimination claims, while the New York City law is interpreted more broadly.

Discrimination Claims

The court held that Colbert’s complaint adequately pleaded race-discrimination claims. The parties did not dispute that Colbert alleged he belonged to a protected racial group, was qualified for his position, and suffered an adverse employment action when he was terminated.

The court found that Miller’s alleged comments about Colbert being “too black,” “culturally different,” and needing to adapt to the company’s “dominant culture” plausibly supported an inference that the termination was because of Colbert’s race. The timing of the alleged comments and termination also supported that inference. The court further identified the alleged comments about Colbert’s athletic skills, the instruction that he be less intimidating, and the allegedly unequal bonus-related requirement as facts supporting the discrimination claims.

The defendants argued that FSA Store could not have discriminated against Colbert because it hired him while knowing his race. The court discussed this as the “same actor inference,” a permissive inference that can sometimes support an argument that the person who hired an employee was unlikely to later discriminate against that employee. The court concluded that the inference did not defeat Colbert’s claims at the pleading stage. It also noted that the complaint did not allege that Miller personally made the hiring decision and that, even if he had, the other alleged facts could still support an inference of discrimination.

Because the court found the federal and state discrimination claims adequately pleaded, it also denied the motion as to the New York City Human Rights Law claim without needing to decide whether the claim satisfied that law’s broader standard.

Aiding-and-Abetting Claims Against Miller

The court also rejected Miller’s arguments for dismissing the aiding-and-abetting claims under the New York State and New York City Human Rights Laws. The court stated that Miller did not dispute that he actually participated in the conduct underlying the discrimination claim, which is required for liability under those provisions.

The court held that an individual may potentially be liable as an aider and abettor even when that individual is alleged to have carried out the discriminatory conduct. It also held that Colbert could plead aiding-and-abetting liability in the alternative, even though the complaint might also support treating Miller as directly liable as an employer under New York law. The court did not decide whether a jury could ultimately impose both forms of liability.

Disposition

The opinion’s conclusion states: “Plaintiff’s motion to dismiss is DENIED.” The body of the opinion, however, says that the defendants moved to dismiss and analyzes the ruling as a denial of the defendants’ motion. Thus, the opinion clearly denies the motion discussed in its analysis, but its concluding reference to “Plaintiff’s motion” appears inconsistent with the rest of the text. The court did not decide the ultimate truth of the discrimination or retaliation allegations; it ruled that the identified claims could proceed past the pleading stage.