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United States Court of Appeals, Second Circuit.

Gloree SAPIO, Plaintiff-Appellant, v. SELUX CORPORATION, Yvonne Rivera, Individually and as employees of the Selux Corporation, and Ed Wolf, Individually and as employees of the Selux Corporation, Defendants-Appellees.*


Decided: April 22, 2021

PRESENT: José A. Cabranes, Rosemary S. Pooler, Joseph F. Bianco, Circuit Judges. FOR PLAINTIFF-APPELLANT: Ryanne Konan, Ryanne Konan Law Office and Legal Services, Wappingers Falls, NY. FOR DEFENDANTS-APPELLEES: Robert F. Manfredo, Bond, Schoeneck & King, PLLC, Albany, NY.


Plaintiff-Appellant Gloree Sapio (“Sapio”) appeals a May 6, 2020 judgment of the District Court dismissing her Amended Complaint (“Complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(6). Sapio's Complaint asserted claims of racial discrimination under 42 U.S.C. § 1981 (“Section 1981”) and the New York Human Rights Law, N.Y. Exec. Law §§ 290-301, and state-law claims for fraud and misrepresentation against Defendants-Appellees Selux Corporation (“Selux”) and its employees Yvonne Rivera and Ed Wolf (“Defendants”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

The District Court dismissed Sapio's Section 1981 claim on the ground that the Complaint failed to plausibly allege that circumstances surrounding her termination from Selux raised an inference of race discrimination. The District Court held that Sapio's general and conclusory allegations of discriminatory animus—e.g., that her termination “was motivated by [Sapio's] race” or occurred “because [Sapio] was Asian” or because Defendants “wanted to replace [Sapio] with a Caucasian employee”1 —did not suffice to raise an inference of discriminatory animus.2 The District Court rejected Sapio's argument that her alleged replacement by a Caucasian employee created a presumption of racial discrimination. Having dismissed Sapio's only federal claim, the District Court declined to exercise jurisdiction over Sapio's state-law claims and dismissed the Complaint in its entirety. The District Court did not reach the issue of whether, as Defendants contend, Sapio released her claims pursuant to a waiver provision in her separation agreement with Selux.

We review de novo a District Court's dismissal of a complaint under Rule 12(b)(6).3 It is settled that an employment discrimination plaintiff will ordinarily satisfy her “minimal” burden to allege facts supporting an inference of discrimination by alleging her replacement by someone outside her protected class.4 Sapio has made this allegation here. Moreover, Sapio has alleged an additional basis to infer discrimination—i.e., that Selux gave her false, pretextual reasons for her termination. The District Court therefore erred in holding that Sapio's Complaint failed to raise an inference of discriminatory animus and we accordingly vacate the judgment of May 6, 2020 and remand the case to the District Court for further proceedings. Defendants are free on remand to renew their contention that Sapio has released her claims.


We have considered Defendants’ other arguments on appeal and find them to be without merit. For the foregoing reasons, we VACATE the May 6, 2020 judgment of the District Court and REMAND the case to the District Court for further proceedings consistent with this order.


1.   Complaint ¶¶ 25, 32, 33.

2.   The District Court appeared to hold that Sapio had otherwise satisfied her pleading burden. Sapio v. Selux Corp., 1:19-cv-11 (GLS/CFH), 2020 WL 2200224, at *2 (N.D.N.Y. May 6, 2020) (“Sapio has arguably met the first three prongs [of her discrimination claim]: (1) she is an Asian-American female from the Philippines, and thus is a member of a protected class,․ (2) she worked for Selux prior to her termination, which is sufficient to satisfy that she was qualified for the position, ․ and (3) she was terminated from her position at Selux․” (internal citations omitted)).

3.   Simmons v. Roundup Funding, LLC, 622 F.3d 93, 95 (2d Cir. 2010).

4.   Littlejohn v. City of New York, 795 F.3d 297, 312-13 (2d Cir. 2015) (quoting Zimmermann v. Assocs. First Cap. Corp., 251 F.3d 376, 381 (2d Cir. 2001); see also Zimmermann, 251 F.3d at 381 (“[T]he mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis․”) (citation omitted)).

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