October 02, 2019

Considering Title VII complaints based on the Continuing Violation Doctrine and allegations of Disparate Treatment

Plaintiff-Appellant [Plaintiff] sued his current employer, the New York State Department of Taxation and Finance [NYSTF] pursuant to Title VII of the Civil Rights Act of 1964 alleging that NYSTF discriminated against him on the basis of race and retaliated against him when it failed to promote him on various occasions from 1997 to 2017.

The District Court properly concluded that Plaintiff’s Title VII claims based on acts alleged to have occurred on or before July 15, 2016 were time-barred as Title VII requires individuals aggrieved by acts of discrimination in states like New York that have state or local employment discrimination enforcement mechanisms to file a charge with the Equal Employment Opportunity Commission [EEOC] within 300 days “after the alleged unlawful employment practice occurred.”*

The majority of the alleged discriminatory acts that Plaintiff alleges in his complaint and supporting documents occurred years before this date. Notwithstanding Plaintiff's argument to the contrary, the district court correctly found that the continuing violation doctrine did not revive the claims based on these acts.

The Circuit Court explained that under the continuing violation doctrine, “if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.” However, said the court, the continuing violation doctrine does not apply to discrete unlawful acts, even if the discrete acts were undertaken “pursuant to a general policy that results in other discrete acts occurring within the limitations period.”

Holding that “[A]n employer’s failure to promote is by its very nature a discrete act,” the Circuit Court ruled that the District Court correctly concluded that Plaintiff’s complaint, which focused on multiple failures to promote, alleged only a series of discrete acts of retaliation and discrimination, occurring over the course of more than twenty years and often separated by years. Thus the continuing violation doctrine did not revive Plaintiff's time-barred claims.

Considering Plaintiff's "disparate treatment claims based on the NYSTF’s failure to promote him between June 2, 2016 and May 10, 2017," the Circuit Court indicated that at the pleadings stage, Title VII “requires a plaintiff asserting a discrimination claim to allege two elements: (1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin.”

Although a plaintiff may adequately plead this second element “by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination,” the Circuit Court found that the District Court correctly ruled that Plaintiff failed to make this showing because he made only conclusory allegations that he was denied promotions due to racial animus.

Finally, the Circuit Court held that the District Court did not err in dismissing Plaintiff’s retaliation claim for failure to state a claim, explaining that to establish a prima facie case of retaliation, an employee must show:

(1) participation in a protected activity;

(2) that the defendant knew of the protected activity;

(3) an adverse employment action; and

(4) a causal connection between the protected activity and the adverse employment action.”

The District Court, said the Circuit Court, correctly held that allegations that Plaintiff was passed over for promotions in 2016 and 2017 were too attenuated from the protected activity to plausibly allege a causal connection between the two.

* 42 USC §2000e-5(e)(1) claims falling outside this statute of limitations are time-barred unless they are subject to waiver, estoppel, or equitable tolling, or fall within the continuing violation exception to the 300-day rule.

The decision if posted on the Internet at:


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