The Italian Job:  Fifth Circuit Confirms Pleading Standard for National Origin Discrimination ClaimEmployment law is full of burden-shifting, prima facie standards and evidentiary hurdles. Sometimes, even the courts apply the wrong standard at the wrong stage of a case. That appears to be what happened in the case of Cicalese v. The University of Texas Medical Branch.

“Go Back to Italy”

A married couple emigrated from Italy to the United States and began working as doctors at the University of Texas Medical Branch (UTMB). According to the complaint,they were very successful for several years until a new dean arrived in late 2012. The doctors alleged that the dean began making comments like “What are you doing here? You should go back to Italy,” and made major changes to their positions. In 2014, a new chairman of surgery arrived and, again according to the complaint, stated that he did not care about “these Italians” and that “stupidity” was an “Italian thing.” Finally, the plaintiffs alleged that the chairman of surgery further demoted and isolated them. The couple sued UTMB alleging discrimination based upon their national origin.

Lower Court Dismissal—Did It Get It Right?

UTMB filed a motion to dismiss the complaint, arguing that the doctors failed to state a plausible National Origin Discrimination Claim under Title VII. The district court agreed and dismissed the case. The doctors appealed stating that the lower court held them to a heightened pleading standard for their disparate-treatment claims. They said that the district court confused the plausibility pleading standard used in a motion to dismiss with the McDonnell Douglas evidentiary standard that is used at the summary judgment stage and later.

The Fifth Circuit first noted that the two standards are markedly different. At the motion to dismiss stage, it is not required that a plaintiff show each prong of the prima facie test for disparate treatment. However, the pleading does have to include “sufficient facts on all the ultimate elements of a disparate treatment claim to make their case plausible.” The court went on to define the ultimate elements: 1) an adverse employment action 2) taken against the plaintiff because of his or her protected status. That’s it. A court that requires more than that, such as a McDonnell Douglas analysis, at the motion to dismiss stage is wrong.

The lower court had held that the doctors failed to provide proof of a similarly situated non-Italian employee who was treated differently and also found that the derogatory statements were merely “stray remarks” that didn’t prove discriminatory motive. The Fifth Circuit disagreed. They stated that “although a close call,” the plaintiffs did allege sufficient facts to “nudge” their claims of anti-Italian bias over the line from “conceivable to plausible.” The Fifth Circuit reversed the granting of the motion to dismiss, holding that an analysis of the similarly situated fellow employee and “stray remarks” were more suited to the summary judgment phase.

What Does This Mean?

First, this case is a good reminder that national origin is an alive and well-protected class. Employers should be mindful that comments about where someone is from are as actionable as comments about race, sex or age. Even if they are just kidding around.

Second, this case shows that, at least in the Fifth Circuit, a plaintiff’s burden to survive a motion to dismiss is not that heavy. Even if a complaint is filled with (what an employer considers) lies and untruths, if it pleads allegations that at least meet the ultimate elements, you may have to go through discovery to get to a motion for summary judgment.