Fay v. Barbera: Recognizing Personal §1983 Liability for Gender-Based Disparate Treatment by Supervisory Officials

Introduction

Fay v. Barbera, decided June 2, 2025 by the Second Circuit, clarifies the standards for pleading and proving individual liability under 42 U.S.C. § 1983 in a gender‐discrimination context. Megan Fay, a part‐time transport officer with the Rockland County Sheriff’s Department, sued Undersheriff Mary Barbera, Chief Theodore Brovarski, and Rockland County for violating her Equal Protection rights by denying her promotions and shift accommodations because she is a woman. After the District Court dismissed her complaint for failure to state a viable claim, Fay appealed. The Second Circuit affirmed in part, vacated in part, and remanded—upholding dismissal of claims against Brovarski and the County, but reinstating her claim against Barbera. This decision articulates how personal involvement and plausibly pleaded factual allegations can support an individual § 1983 suit for employment discrimination.

Summary of the Judgment

The Second Circuit conducted a de novo review of the District Court’s Rule 12(b)(6) dismissal. Key holdings:

The § 1983 claim against Undersheriff Barbera was incorrectly dismissed. Fay’s allegations—that Barbera’s subordinates relayed Barbera’s sexist remarks in 2021 and Barbera personally chose a less‐qualified male candidate in 2022—plausibly show personal involvement in adverse employment actions motivated by sex.
The § 1983 claim against Chief Brovarski was properly dismissed. Fay’s pleadings contained only conclusory allegations about disparate treatment in shift assignment without identifying a similarly situated male comparator in sufficient detail.
The § 1983 claim against Rockland County was properly dismissed. Fay failed to allege a policy, custom, or final‐policy‐maker action that caused the discrimination, and municipal liability cannot rest solely on delegation of discretionary authority.
The case was remanded for further proceedings against Barbera alone.

Analysis

Precedents Cited

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007): Established the “plausibility” pleading standard under Rule 12(b)(6).
Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010): Reiterates de novo review and the requirement to accept well‐pleaded facts as true.
Naumovski v. Norris, 934 F.3d 200 (2d Cir. 2019): Confirms that sex‐discrimination in public employment can proceed under § 1983 against individuals.
Brandon v. Kinter, 938 F.3d 21 (2d Cir. 2019): Defines personal involvement in § 1983 claims.
Pembaur v. City of Cincinnati, 475 U.S. 469 (1986): Sets the standard for municipal liability—final policymaker requirement.

These authorities guided the court’s identification of the difference between conclusory and fact‐based pleadings, the necessity of showing each defendant’s personal role in the constitutional violation, and the bar against holding municipalities liable absent an official policy or custom.

Legal Reasoning

1. Pleading Standard: The court reaffirmed that to survive a Rule 12(b)(6) motion, a complaint must allege enough factual content to render a claim for relief plausible (Twombly).

2. Individual Liability under § 1983: Building on Naumovski and Brandon, the court required two elements—(a) a violation of a protected right (here, Equal Protection regarding sex discrimination) and (b) that the individual acted under color of state law with personal involvement. Mere delegation of authority or isolated, unexplained adverse actions are insufficient.

3. Application to Barbera: Fay’s complaint alleged direct antipathy toward female appointments—her superiors reported Barbera’s “too pretty” remark and refusal to promote qualified women. Her appointment of a male candidate in 2022, despite Fay’s superior qualifications, allowed a reasonable inference of sex‐based intent. These specific factual allegations overcame the “conclusory statement” hurdle and demonstrated Barbera’s personal involvement and discriminatory motive.

4. Application to Brovarski: Fay failed to allege who the comparator male was, his qualifications, or why the shift‐assignment rule applied only to her. The court held these allegations too vague to draw an inference of sex discrimination.

5. Municipal Liability: Under Pembaur, isolated actions by non‐policymakers cannot establish municipal custom or policy. Fay did not allege a County‐level directive or widespread practice of discrimination. Delegation of discretion to Barbera and Brovarski, alone, did not convert them into final policymakers for countywide employment policy.

Impact

This decision reaffirms lower courts’ gatekeeping role under Twombly and illustrates:

How plaintiffs must plead facts showing each individual defendant’s direct or supervisory role in discriminatory employment decisions.
The strict boundaries on municipal liability under § 1983, emphasizing the requirement of an official policy or final policymaker’s directive.
That discriminatory remarks conveyed by subordinates, when attributed to a supervisor and coupled with adverse decisions, can suffice to allege personal involvement.

Future litigants will likely refine their complaints to identify comparators in detail and to attribute precise decision‐making authority to named supervisors.

Complex Concepts Simplified

“Plausible on its face” (Twombly): A claim that, if its factual allegations are accepted as true, could logically lead a court to infer unlawful conduct, not merely guesswork or legal conclusions unsupported by facts.
“Personal involvement” (Brandon v. Kinter): A § 1983 defendant must have directly participated in the wrongdoing, failed to remedy it, or created a policy or custom that led to it.
“Final policymaker” (Pembaur): Only those officials with the ultimate authority to set municipal policy on a particular subject can bind a city or county to § 1983 liability.
“Comparator” in discrimination cases: A similarly situated person of a different class (e.g., gender) who was treated more favorably; essential to show disparate treatment.

Conclusion

Fay v. Barbera sharpens the roadmap for § 1983 claims in public‐employment discrimination:

Plaintiffs must allege facts that support a reasonable inference of discriminatory intent by each individual defendant.
Generalized assertions or isolated remarks without linkage to concrete adverse actions will be dismissed.
Municipal liability remains confined to actions taken pursuant to established policy by duly authorized final policymakers.

By vacating the dismissal of Barbera and affirming dismissal of the other defendants, the Second Circuit both reinforces rigorous pleading standards and recognizes the viability of individual § 1983 suits against supervisors whose own decisions reflect unconstitutional discrimination.