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What is Required to Properly Plead a National Origin Discrimination Case?


Before you can present your employment discrimination claims to a jury you have to file them with the court. But doing that is not always as straightforward as it seems. The law requires that certain requirements be met when it comes to pleading discrimination claims in the written complaint you file with the court. If those requirements are not met, then your case could be dismissed before it ever reaches a jury. A recent case involving a complaint alleging national origin discrimination demonstrates the level of specificity required to properly plead this type of case and survive dismissal.

Italian Professors Allege Discrimination

In the case, Cicalese v. University of Texas Medical Branch, an Italian married couple were both employed with the University of Texas Medical Branch at Galveston (“UTMB”). Both were medical doctors in their own country but were not licensed in the U.S. when they came to work at UTMB. Nevertheless, the university granted them each with a faculty medical license that would be renewed throughout their tenure.

Luca Cicalese, M.D. was employed as a tenured professor and director of UTMB’s Transplant and Organ Failure Center. Cristiana Rastellini, M.D. was employed as a tenure-track faculty member and director of UTMB’s Transplant and Cellular Transplantation research.

Issues Arise Under New Management

For several years, the couple did not have any issues. Then in late 2012, Dr. Danny Jacobs came on board as Dean. He allegedly said to the couple “What are you doing here? You should go back to Italy.” It is further alleged that Dr. Jacobs changed the criteria for job performance so that Rastellini would be unable to earn positive evaluations without obtaining funding from the National Institutes of Health (NIH). Consequently, Rastellini’s negative performance evaluations led to her being moved to an “inadequate” lab so that another researcher could use hers. The Transplant and Organ Failure Center for which Cicalese served as Director was suspended and an investigation was started into his handling of liver cancer surgeries, purportedly to discredit him.

Dr. Jacobs later hired Dr. Douglas Tyler as chairman of surgery in 2014. At that point, Tyler also made disparaging comments about Italians, referring to “stupidity” and failure to “understand[] a situation” as an “Italian thing.” Tyler began excluding Rastellini from departmental activities and making demeaning comments about her performance. She was ultimately demoted. Cicalese’s salary was reduced, his work was limited and he was given unfavorable references. Most detrimental was Tyler’s recension of the permanent faculty licensure waivers that were provided to the Italian couple, who were the “[o]nly two physicians” at UTMB who benefited from the former policy.

Evidentiary Standards that Apply in Employment Discrimination Cases.

In this particular case, the plaintiffs are claiming that they were being discriminated against based on their national origin (Italian) in violation of Title VII. There are two well-known evidentiary standards that apply in employment discrimination cases: the Twombly/Iqbal standard and the McDonnell Douglas standard. However, these two standards apply at two very distinct phases of litigation. The Twombly/Iqbal standard applies when the court is reviewing the Complaint before evidence has been gathered. That means the court reviews the Complaint as it is written without considering whether the facts alleged can actually be proven. On the other hand, the McDonnell Douglas standard applies after discovery has been completed and the parties have testimony and documentary evidence to support their claims and defenses. At that point, the court will determine whether there is sufficient evidence to send the claims to a jury to decide.

The Fifth Circuit Decides the Wrong Standard was Applied

In this case, the Fifth Circuit Court of Appeals determined that the trial court dismissed the plaintiffs’ claims improperly because it applied the wrong evidentiary standard. The employer, in that case, filed a motion to dismiss the Complaint as it was pled before discovery had been completed. As such, the Twombly/Iqbal pleading standard applied, which requires that a complaint “state a claim to relief that is plausible on its face.”

However, the trial court dismissed the case because it found the Plaintiffs did not allege with sufficient specificity that any “similarly situated” non-Italian employee was treated differently under nearly identical circumstances. The court trial court also found that the alleged derogatory statements about Italians were mere “stray remarks” and did not constitute direct evidence of discriminatory motive. This analysis was improper at this stage of litigation.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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