Reaffirming Statistical Specificity and Comparator Consistency in Discrimination Pleadings

Commentary on Moss v. Board of Education of the Sachem Central School District, 24-2096-cv (2d Cir. Mar. 28 2025) (Summary Order)

Introduction

In Moss v. Board of Education of the Sachem Central School District, the United States Court of Appeals for the Second Circuit affirmed the Eastern District of New York’s dismissal of a pro se plaintiff’s wide-ranging discrimination suit. Though issued as a “summary order” and therefore non-precedential, the decision further crystallises two critical pleading principles in employment-discrimination litigation:

The plaintiff must identify comparators who are “similarly situated in all material respects” when pursuing a disparate-treatment theory.
When alleging a disparate-impact theory, plaintiffs must supply statistical data tied to the qualified labor pool, not merely to the general population.

William King Moss III—an African-American educator—applied for an elementary-school principalship in the Sachem Central School District on Long Island, New York. After he was not granted a first-round interview, Moss sued under Title VII, 42 U.S.C. §§ 1981, 1983, and 1985, alleging both intentional and unintentional race discrimination alongside constitutional claims. The district court dismissed his second amended complaint under Fed. R. Civ. P. 12(b)(6), and the Second Circuit affirmed in full.

Summary of the Judgment

Applying de novo review, the Court held that Moss:

Failed to state a Title VII disparate-treatment claim because his identified comparators (seven interviewees) possessed assistant-principal experience he lacked, meaning they were not “similarly situated.”
Failed to state a Title VII disparate-impact claim because he relied on raw census figures rather than statistics reflecting the pool of qualified applicants.
Consequently failed to state derivative claims under §§ 1983, 1981, and 1985 because each theory requires, directly or indirectly, a plausible showing of discriminatory intent or impact that was absent.
Could not raise new sex-discrimination or retaliation theories for the first time on appeal.
Offered no factual allegations establishing “meeting of the minds” for a § 1985 conspiracy.

Accordingly, the district court’s dismissal without prejudice was affirmed.

Analysis

Precedents Cited

Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) — anchor the plausibility standard under Rule 12(b)(6).
Vega v. Hempstead Union Free School District, 801 F.3d 72 (2d Cir. 2015) and Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) — articulate the “minimal plausible inference” test for discrimination pleadings.
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981) — holds that courts do not second-guess an employer’s assessment of qualifications absent evidence of discrimination.
Mandala v. NTT Data, Inc., 975 F.3d 202 (2d Cir. 2020) and Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977) — instruct that disparate-impact plaintiffs must use statistics tailored to the qualified labor market.
Burgis v. NYC Dep’t of Sanitation, 798 F.3d 63 (2d Cir. 2015) — reiterates the need for “particularized” comparators and robust statistics in § 1981 claims.
Webb v. Goord, 340 F.3d 105 (2d Cir. 2003) and Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085 (2d Cir. 1993) — govern § 1985 conspiracy standards, requiring a “meeting of the minds” and invidious animus.

These precedents collectively shaped the analytical framework: plausibility, comparator consistency, statistical rigour, and intent.

Legal Reasoning

Disparate Treatment (Intentional Discrimination)
The Court examined whether Moss pled facts giving rise to an inference of race-based intent. The seven interviewees all held assistant-principal experience—an undisputed hiring criterion—whereas Moss did not. Because comparators must be “similarly situated in all material respects,” any differential treatment here could plausibly stem from the qualification gap rather than race. Under Burdine, even a “misjudgment” of qualifications cannot, standing alone, create Title VII liability.
Disparate Impact (Unintentional Discrimination)
Moss’s statistical allegations—District staff was 0.7%–0.8% Black while the local population was 4% Black—were deemed insufficient. Citing Mandala, the Court stressed that population data including children and retirees does not reflect the qualified applicant pool (e.g., certified teachers or administrators). Absent such tailored data (number of openings, applicant race, credentialed labor market composition), the pleadings could not “nudge” the claim into plausibility.
Derivative Statutory and Constitutional Claims
• § 1983: Requires the same discrimination showing as Title VII plus state action. Failure on Title VII grounds doomed this claim.
• § 1981: Demands intentional discrimination in contracting. Again, inadequate comparator or statistical pleading defeated the claim.
• § 1985(3): Requires both race-based animus and an agreement among conspirators. The complaint alleged no “meeting of the minds.”
Waiver of New Theories on Appeal
Moss argued sex discrimination and retaliation for the first time before the Second Circuit. The Court applied its settled rule that issues not raised below need not be entertained on appeal, especially in pro se cases (Green v. DOE NYC, 16 F.4th 1070 (2d Cir. 2021)).

Impact

Although summary orders lack precedential value under 2d Cir. R. 32.1.1, they are often studied by district courts and practitioners for guidance. Moss is likely to:

Reinforce heightened scrutiny of comparator allegations: Plaintiffs must plead facts demonstrating parity on key job qualifications.
Elevate the statistical pleading bar in disparate-impact suits: General census statistics—common in pro se filings—are insufficient where special credentials are required.
Bolster early-stage dismissal of derivative § 1983/1981/1985 claims if the foundational discrimination theory is implausible.
Guide counsel advising school districts and public employers on documentation of hiring criteria and candidate qualifications to pre-empt inference of bias.
Inform pro se litigants that Title VII claims require more than perceived unfairness; they require comparators and/or statistics meeting specific legal thresholds.

Complex Concepts Simplified

Title VII Disparate Treatment: Claims that an employer intentionally treated the plaintiff less favorably due to race, sex, etc. Requires showing that similarly-qualified individuals of a different race were treated better.
Title VII Disparate Impact: Focuses on facially neutral policies that disproportionately harm a protected group. Proof is almost always statistical.
“Similarly Situated in All Material Respects”: A comparator must match the plaintiff on job title, experience, duties, and other key factors so that any difference in treatment can be attributed to discrimination rather than legitimate distinctions.
Qualified Labor Pool: The subset of the population actually eligible for the job—e.g., certified teachers for a teaching post—not the entire local population.
§ 1983: Allows suits against state actors for constitutional or federal-law violations. In employment cases, discrimination standards mirror Title VII.
§ 1981: Protects the right to “make and enforce contracts” free of race discrimination, covering employment contracts.
§ 1985(3): Creates liability for conspiracies motivated by race-based animus that aim to deprive individuals of equal protection. Requires an actual agreement among conspirators.
Summary Order: A form of appellate disposition without full opinion; in the Second Circuit, it has no precedential effect but may be cited under Fed. R. App. P. 32.1.

Conclusion

Moss v. Board of Education of the Sachem Central School District may not appear in the Federal Reporter, yet its clear reaffirmation of pleading standards reverberates. The decision underscores that:

Pleading comparator evidence requires near-identical qualifications.
Statistical allegations must correlate with the job’s qualified applicant pool.
Derivative civil-rights claims rise or fall with the viability of the core discrimination theory.
New theories cannot be salvaged for the first time on appeal.

Collectively, these principles fortify the gatekeeping role of Rule 12(b)(6) in discrimination litigation. For employers, the case affirms the protective value of well-documented objective hiring criteria. For plaintiffs—especially those proceeding pro se—it serves as a roadmap illustrating both the pitfalls of conclusory allegations and the evidentiary foundations necessary to advance past the pleading stage.

“Reaffirming Statistical Specificity and Comparator Consistency in Discrimination Pleadings” – A Commentary on Moss v. Board of Education of the Sachem Central School District (2d Cir. 2025)