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A white male portfolio manager who claims he was fired because of his race is not required to allege any “special circumstances” to support his claim of reverse discrimination, a Southern District of New York judge has ruled. Deciding an issue that has yet to be addressed directly by the 2nd U.S. Circuit Court of Appeals, federal Judge Shira A. Scheindlin said fired portfolio manager Wayne Tappe established that he was a member of a protected group under Title VII, and should not be held to a higher pleading standard. The decision did little to help Tappe, however, as the judge went on to find he failed to allege facts in support of his claims of sex and race discrimination in Tappe v. Alliance Capital Management, 01 Civ. 2068. Tappe, 38, was fired from his job as a Senior Portfolio Manager of Alliance’s High Yield Group on Dec. 8, 1999, the day that the firm was to pay bonus compensation to its employees. Because four other members of the High Yield Group included three women, one of whom was black, and a 55-year-old man, Mr. Tappe alleged that he was singled out because he was the only one in the group who was not a member of a protected class. Alliance argued that the discrimination claims must be dismissed because Tappe did not allege “background circumstances”: that the firm was “an unusual employer who discriminates against the majority.” “The Second Circuit has not yet squarely decided whether a plaintiff in a ‘reverse discrimination’ lawsuit must allege special circumstances to qualify as a member of a protected group, and circuit courts have split on the issue,” Judge Scheindlin said. “Moreover, courts in this district have split in deciding whether Title VII requires reverse-discrimination plaintiffs to meet a higher pleading standard.” But Scheindlin said the U.S. Supreme Court has indicated that “Title VII does not distinguish between traditional and non-traditional plaintiffs,” and the high court “has also steadfastly held male plaintiffs to the same standard as female plaintiffs – no more or less.” Scheindlin also noted as “instructive, if not determinative” the 2nd Circuit case of McGuinness v. Lincoln Hall, 263 F.3d 49 (2001), which involved white women alleging that a fellow employee who was a black male received a better severance package. In McGuinness, Judge Scheindlin said, “[t]he Second Circuit did not find it significant that the plaintiff was a white plaintiff bringing a race discrimination suit, and it did not require her to allege any special circumstances to establish a prima facie claim.” Finally, Scheindlin noted, there was another important reason why Tappe had satisfied the first prong of the four-prong test required for a prima facie showing of discrimination. “No one doubts that the ‘background circumstances’ test, if adopted, would place a higher burden on Tappe than a ‘traditional’ plaintiff — after all, if Tappe were black, for example, he would not be required to allege any background circumstances,” she said. “Such differential treatment, if adopted, would raise a serious question because treating plaintiffs differently because of their race or sex triggers heightened constitutional scrutiny.” CLAIM STILL FAILED In the end, however, Tappe’s claim failed because it did not meet the “minimal” burden of alleging facts to support his claims of age and race discrimination. His complaint had charged only that he was fired, that he was told by a superior that he did not fit the profile of the High Yield Group and its strategy for the future, and that every “other portfolio manager is a member of a protected class by virtue of his or her gender, race and/or age.” “These allegations, however, only show that Tappe worked in a diverse workforce and he was fired,” Scheindlin said. “To hold that these circumstances alone give rise to an inference of race or sex discrimination would mean that employees would always have a prima facie case of employment discrimination whenever they lost their jobs.” Though she dismissed the discrimination claims, Scheindlin gave Tappe leave to amend his complaint within 20 days. Jeffrey L. Liddle of Liddle & Robinson represented Tappe. Frances Mary Maloney and Gerald Spada of Epstein Becker & Green represented Alliance Capital Management.

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