Dawnn McCleary-Evans v. Maryland Department of Trans , 780 F.3d 582 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2488
DAWNN MCCLEARY-EVANS,
Plaintiff - Appellant,
v.
MARYLAND DEPARTMENT OF TRANSPORTATION, STATE HIGHWAY
ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:13-cv-00990-CCB)
Argued: December 9, 2014 Decided: March 13, 2015
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
majority opinion, in which Judge Diaz joined. Judge Wynn wrote
a separate opinion dissenting in part.
ARGUED: John Henry Morris, Jr., LAW OFFICE OF JOHN H. MORRIS,
JR., Baltimore, Maryland, for Appellant. DeNisha A. Watson,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee. ON BRIEF: Douglas F. Gansler, Attorney General
of Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellee.
NIEMEYER, Circuit Judge:
Dawnn McCleary-Evans commenced this action against the
Maryland Department of Transportation’s State Highway
Administration, alleging that the Highway Administration failed
or refused to hire her for two positions for which she applied
because of her race (African American) and her sex (female), in
violation of Title VII of the Civil Rights Act of 1964,
specifically 42 U.S.C. § 2000e-2(a)(1). In her complaint, she
alleged that she was highly qualified for the positions, but
that the decisionmakers were biased and had “predetermined” that
they would select white candidates to fill the positions.
The district court granted the Highway Administration’s
motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), concluding that the complaint failed to
allege facts that plausibly support a claim of discrimination.
Because we agree that McCleary-Evans failed to include adequate
factual allegations to support a claim that the Highway
Administration discriminated against her because she was African
American or female, we accordingly affirm. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face’” (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007))).
2
I
McCleary-Evans worked for over 20 years as a project
manager on environmental regulatory compliance projects while
employed at the Maryland Department of Natural Resources and the
Maryland Transit Administration. In late 2009 and early 2010,
she applied for two open positions in the Highway
Administration’s Environmental Compliance Division, interviewing
first for a position as an assistant division chief and later
for a position as an environmental compliance program manager.
Despite her prior work experience and education, which she
alleged made her “more than qualified” for the two positions,
she was not selected for either position. Instead, as the
complaint asserted, “The positions in question were filled by
non-Black candidates.”
McCleary-Evans’ claim that the Highway Administration did
not hire her “because of the combination of her race and gender”
relies essentially on two paragraphs of her complaint. In one,
she alleged that her applications were “subject to a review
panel significantly influenced and controlled by . . . Gregory
Keenan, a White male in the Office of Environmental Design
(‘OED’) who worked under the supervision of OED Director, Sonal
Sangahvi, a non-Black woman,” and that “[d]uring the course of
her interview, and based upon the history of hires within
OED, . . . both Keenan and Sangahvi predetermined to select for
3
both positions a White male or female candidate.” In the other
paragraph, she similarly alleged that, “although African
American candidates had been among the selection pool,” “Keenan
and Sangahvi, for reasons of race and gender, overlooked the
African American candidates to select White male, preferably,
and White female candidates.” In short, she claimed in
conclusory fashion that the decisionmakers were biased when
making the decision. And the complaint did not include any
allegations regarding the qualifications or suitability of the
persons hired to fill the two positions.
In dismissing her claim, the district court concluded that
McCleary-Evans had failed to “allege facts that plausibly
support a claim of discrimination.” The court reasoned that
because this was a case with “no direct evidence of
discrimination,” McCleary-Evans needed to allege facts
sufficient to “state a prima facie case of discrimination for
failure to hire by showing: (1) that she is a member of the
protected class; (2) that the employer had an open position for
which she applied or sought to apply; (3) that she was qualified
for the position; and (4) that she was rejected under
circumstances giving rise to an inference of unlawful
discrimination.” It noted that, while McCleary-Evans had
sufficiently alleged the first three prongs of the prima facie
case, she had not “stated facts sufficient to meet the pleading
4
requirements as to the fourth prong.” Her complaint, the court
said, “offer[ed] nothing to support her conclusory assertions
[of discrimination] beyond an unsubstantiated mention of ‘a
history of hires’ within the division[] and statements
identifying her race, the races of the two members of the hiring
review panel, and the races of the two applicants hired for the
positions.” The court concluded that, “[b]ecause discrimination
cannot be presumed simply because one candidate is selected over
another candidate, McCleary-Evans ha[d] not pled adequate facts
to give rise to a reasonable inference of discrimination.”
From the district court’s order dismissing her complaint,
McCleary-Evans filed this appeal.
II
McCleary-Evans contends that the district court imposed on
her a pleading standard “more rigorous” than Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002), allows, by analyzing her claim
under the standard set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), for proving a prima facie case of
discrimination. She maintains that the “District Court’s
decision fails to demonstrate the deficiency of the Complaint as
a pleading, but rather offers authority that only works as a
challenge to demonstrate deficiency as evidentiary proof.”
(Emphasis added).
5
In Swierkiewicz, the Supreme Court held that “an employment
discrimination plaintiff need not plead a prima facie case of
discrimination . . . to survive [a] motion to dismiss,” 534 U.S.
at 515, because “[t]he prima facie case . . . is an evidentiary
standard, not a pleading requirement,” id. at 510, that may
require demonstrating more elements than are otherwise required
to state a claim for relief, id. at 511-12. The Court stated
that requiring a plaintiff to plead a prima facie case would
amount to a “heightened pleading standard” that would conflict
with Federal Rule of Civil Procedure 8(a)(2). Id. at 512. As
the Court explained:
[I]t is not appropriate to require a plaintiff to
plead facts establishing a prima facie case because
the McDonnell Douglas framework does not apply in
every employment discrimination case. For instance,
if a plaintiff is able to produce direct evidence of
discrimination, he may prevail without proving all the
elements of a prima facie case.
Id. at 511. Accordingly, the Court concluded that “the ordinary
rules for assessing the sufficiency of a complaint apply,”
referring to Federal Rule of Civil Procedure 8(a)(2). Id.In light of Swierkiewicz, McCleary-Evans appropriately
argues that the district court erred in its analysis by
requiring her to plead facts establishing a prima facie case of
discrimination to survive a motion to dismiss. But the district
court’s erroneous analysis in this case will not save the
complaint if, under the “ordinary rules for assessing the
6
sufficiency of a complaint,” Swierkiewicz, 534 U.S. at 511, it
fails to state a plausible claim for relief under Title VII.
See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.
2010) (“[W]hile a plaintiff is not required to plead facts that
constitute a prima facie case in order to survive a motion to
dismiss, see Swierkiewicz, ‘[f]actual allegations must be enough
to raise a right to relief above the speculative level’”
(citation omitted) (quoting Twombly, 550 U.S. at 555)).
Federal Rule of Civil Procedure 8(a)(2) “requires only a
short and plain statement of the claim showing that the pleader
is entitled to relief, in order to give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.” Twombly, 550 U.S. at 555 (internal quotation marks and
citation omitted). But this rule for pleading “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. Instead, a
complaint must contain “[f]actual allegations [sufficient] to
raise a right to relief above the speculative level.” Id.; see
also Iqbal, 556 U.S. at 678 (holding that a complaint
“tender[ing] ‘naked assertion[s]’ devoid of ‘further factual
enhancement’” does not “suffice” (quoting Twombly, 550 U.S.
at 557)). The Supreme Court has accordingly held that
Rule 8(a)(2) requires that “a complaint . . . contain[]
sufficient factual matter, accepted as true, to ‘state a claim
7
to relief that is plausible on its face’” in the sense that the
complaint’s factual allegations must allow a “court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis added)
(quoting Twombly, 550 U.S. at 570); see also Coleman, 626 F.3d
at 191 (finding a complaint inadequate because its allegations
“fail[ed] to establish a plausible basis for believing . . .
that race was the true basis for [the adverse employment
action]”).
In her complaint, McCleary-Evans purported to state a claim
under Title VII, which means that she was required to allege
facts to satisfy the elements of a cause of action created by
that statute -- i.e., in this case, that the Highway
Administration “fail[ed] or refus[ed] to hire” her “because of
[her] race . . . [or] sex.” 42 U.S.C. § 2000e-2(a)(1) (emphasis
added). While she did allege that the Highway Administration
failed to hire her, she did not allege facts sufficient to claim
that the reason it failed to hire her was because of her race or
sex. To be sure, she repeatedly alleged that the Highway
Administration did not select her because of the relevant
decisionmakers’ bias against African American women. But those
“naked” allegations -- a “formulaic recitation” of the necessary
elements -- “are no more than conclusions” and therefore do not
suffice. Iqbal, 556 U.S. at 678-79 (quoting Twombly, 550 U.S.
8
at 555, 557) (internal quotation marks omitted). For example,
she alleged that “[d]uring the course of her interview, and
based upon the history of hires within [the Office of
Environmental Design], . . . both Keenan and Sangahvi
predetermined to select for both positions a White male or
female candidate.” But she alleged no factual basis for what
happened “during the course of her interview” to support the
alleged conclusion. The allegation that the Highway
Administration did not hire her because its decisonmakers were
biased is simply too conclusory. Only speculation can fill the
gaps in her complaint -- speculation as to why two “non-Black
candidates” were selected to fill the positions instead of her.
While the allegation that non-Black decisionmakers hired non-
Black applicants instead of the plaintiff is consistent with
discrimination, it does not alone support a reasonable inference
that the decisionmakers were motivated by bias. See id. at 678.
McCleary-Evans can only speculate that the persons hired were
not better qualified, or did not perform better during their
interviews, or were not better suited based on experience and
personality for the positions. In short, McCleary-Evans’
complaint “stop[ped] short of the line between possibility and
plausibility of entitlement to relief.” Id. (quoting Twombly,
550 U.S. at 557) (internal quotation marks omitted).
9
In his dissent, Judge Wynn asserts that our holding
“ignores the factual underpinnings” of Swierkiewicz, post,
at 19, which approved an employment discrimination complaint
that, he claims, contained allegations less detailed than those
made by McCleary-Evans in this case, post, at 23. A closer look
at Swierkiewicz, however, reveals that it does not support this
position. Swierkiewicz claimed that he had been subject to
discrimination based on his age and national origin, alleging
that he had been employed by a reinsurance company that was
“principally owned and controlled by a French parent
corporation” for about six years as the chief underwriting
officer when the company’s CEO demoted him and “transferred the
bulk of his underwriting responsibilities” to an employee who,
like the CEO, was a French national and who was also
significantly younger than Swierkiewicz. Swierkiewicz, 534 U.S.
at 508. He alleged further that, about a year later, the CEO
“stated that he wanted to ‘energize’ the underwriting
department” and appointed the younger French national to serve
as the company’s new chief underwriting officer. Id. Finally,
Swierkiewicz alleged specifically that the new chief
underwriting officer was “less experienced and less qualified”
for the position because he “had only one year of underwriting
experience at the time he was promoted,” whereas Swierkiewicz
“had 26 years of experience in the insurance industry.” Id. As
10
this last detail is precisely the kind of allegation that is
missing from McCleary-Evans’ complaint, the fact that the
Supreme Court found Swierkiewicz’s allegations sufficient to
state a claim ultimately says little about the sufficiency of
McCleary-Evans’ complaint.
Moreover, in finding the complaint sufficient, the Supreme
Court in Swierkiewicz applied a different pleading standard than
that which it now requires under Iqbal and Twombly. See
Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th
Cir. 2012) (noting that Iqbal and Twombly “require more
specificity from complaints in federal civil cases than was
heretofore the case”). To be sure, those cases did not overrule
Swierkiewicz’s holding that a plaintiff need not plead the
evidentiary standard for proving a Title VII claim -- indeed,
Twombly expressly reaffirmed Swierkiewicz’s holding that the
“‘use of a heightened pleading standard for Title VII cases was
contrary to the Federal Rules’ structure of liberal pleading
requirements.’” Twombly, 550 U.S. at 570 (quoting Twombly v.
Bell Atl. Corp., 313 F. Supp. 2d 174, 181 (S.D.N.Y. 2003)); see,
e.g., Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st
Cir. 2013) (joining “[s]everal other courts of appeals” in
concluding “that the Swierkiewicz Court’s treatment of the prima
facie case in the pleading context remains” good law). But
Twombly and Iqbal did alter the criteria for assessing the
11
sufficiency of a complaint in at least two respects. First, the
Twombly Court explicitly overruled the earlier standard
articulated in Conley v. Gibson, 355 U.S. 41 (1957) -- and
repeated in Swierkiewicz, see 534 U.S. at 514 -- that “‘a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief.’” Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at
45-46); see also Iqbal, 556 U.S. at 670 (acknowledging that
Twombly “retired the Conley no-set-of-facts test”); Francis v.
Giacomelli, 588 F.3d 186, 192 n.1 (4th Cir. 2009) (same).
Moreover, Iqbal and Twombly articulated a new requirement that a
complaint must allege a plausible claim for relief, thus
rejecting a standard that would allow a complaint to “survive a
motion to dismiss whenever the pleadings left open the
possibility that a plaintiff might later establish some ‘set of
[undisclosed] facts’ to support recovery.” Twombly, 550 U.S. at
561 (alteration in original) (emphasis added).
In short, in addition to the fact that the Swierkiewicz
complaint contained more relevant factual allegations for
stating a Title VII claim than does McCleary-Evans’ complaint,
the Swierkiewicz Court also applied a pleading standard more
relaxed than the plausible-claim standard required by Iqbal and
Twombly. At bottom, therefore, the Supreme Court has, with
12
Iqbal and Twombly, rejected the sufficiency of complaints that
merely allege the possibility of entitlement to relief,
requiring plausibility for obtaining such relief and thus
rejecting a complaint in which the plaintiff relies on
speculation. See Twombly, 550 U.S. at 555 (“Factual allegations
must be enough to raise a right to relief above the speculative
level” (emphasis added)).
Thus, contrary to Judge Wynn’s assertions about the
applicability of Swierkiewicz, it is clear that that decision
does not control the outcome here because: (1) the complaint in
Swierkiewicz alleged that the plaintiff was more qualified than
the younger French person appointed to replace him -- an
allegation that McCleary-Evans has not made; and
(2) Swierkiewicz in any event applied a more lenient pleading
standard than the plausible-claim standard now required by
Twombly and Iqubal.
Applying the Twombly/Iqbal standard here reveals that
McClearly-Evans’ complaint suffers from the same deficiencies
that defeated the complaint in Iqbal. In Iqbal, the plaintiff,
a Muslim citizen of Pakistan who was detained after 9/11,
alleged in a conclusory fashion that he was treated harshly
pursuant to a policy adopted by the Attorney General and the
Director of the FBI solely on account of his race, religion, or
national origin. See 556 U.S. at 680-81. The Supreme Court
13
found the complaint insufficient because it had “not ‘nudged
[his] claims’ of invidious discrimination ‘across the line from
conceivable to plausible,’” id. at 680 (alteration in original)
(quoting Twombly, 550 U.S. at 570), explaining that his factual
allegations did not “plausibly suggest” that the Attorney
General and the FBI Director had acted with a “discriminatory
state of mind,” id. at 683.
Similarly, McCleary-Evans’ complaint leaves open to
speculation the cause for the defendant’s decision to select
someone other than her, and the cause that she asks us to infer
(i.e., invidious discrimination) is not plausible in light of
the “‘obvious alternative explanation’” that the decisionmakers
simply judged those hired to be more qualified and better suited
for the positions. Iqbal, 556 U.S. at 682 (quoting Twombly, 550
U.S. at 567). Indeed, the consequence of allowing McCleary-
Evans’ claim to proceed on her complaint as stated would be that
any qualified member of a protected class who alleges nothing
more than that she was denied a position or promotion in favor
of someone outside her protected class would be able to survive
a Rule 12(b)(6) motion. Such a result cannot be squared with
the Supreme Court’s command that a complaint must allege “more
than a sheer possibility that a defendant has acted unlawfully.”
Id. at 678.
14
In sum, while the district court improperly applied the
McDonnell Douglas evidentiary standard in analyzing the
sufficiency of McCleary-Evans’ complaint, contrary to
Swierkiewicz, the court nonetheless reached the correct
conclusion under Twombly and Iqbal because the complaint failed
to state a plausible claim for relief, as required by Federal
Rule of Civil Procedure 8(a)(2). Accordingly, we affirm.
AFFIRMED
15
Wynn, Circuit Judge, dissenting in part.
I do not agree with that part of the majority’s opinion
that affirms the dismissal of Dawnn McCleary-Evans’s claim that
she was discriminated against because of her race. This case
brings into stark relief the tension embedded in the Supreme
Court’s recent jurisprudence regarding Rule 8 pleading
requirements. It requires us to reconcile the Supreme Court’s
decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009), with its decision
in Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002)—no small
task as the inconsistent case law in this area shows.
The Supreme Court’s decisions in Twombly and Iqbal, which
underpin the majority’s holding, each speak to the proper
application of Rule 8(a)(2) of the Federal Rules of Civil
Procedure. That rule continues to be the yardstick by which
courts measure the sufficiency of civil complaints. The
language of the rule thus makes for a good starting point for
any court’s consideration of a motion to dismiss for failure to
state a claim. The rule provides:
(a) Claim for Relief. A pleading that states a claim
for relief must contain:
(2) a short and plain statement of the claim
showing that the pleader is entitled to
relief . . . .
Fed. R. Civ. P. 8(a)(2).
16
Time and again the Supreme Court has reiterated that Rule
8(a)(2) sets forth a “liberal pleading standard[],” one which
does not contemplate the pleading of “specific facts.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007). And the Supreme Court’s
recent jurisprudence has not extinguished what has been the
guiding star of 12(b)(6) jurisprudence for the last forty years—
“fair notice to the defendant.” Id. at 93 (internal quotation
marks and citations omitted). Indeed, the Court stated in
Twombly and reiterated less than a year later in Erickson that
the short and plain statement required under Rule 8(a)(2) “need
only ‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’” Id. (quoting Twombly,
550 U.S. at 555). Nor has the Court abandoned the longstanding
requirement that judges “accept as true all of the factual
allegations contained in the complaint.” Id. at 04.
What the Court’s recent cases have done, however, is
require that a plaintiff do more than raise a remote possibility
of relief. The now familiar moniker for the plaintiff’s burden
is “plausibility.” While the Court’s delineation of the
plausibility requirement may be somewhat “opaque,” Swanson v.
Citibank, N.A., 614 F.3d 400, 411 (7th Cir. 2010) (Posner,
dissenting), the Court has given lower courts a few signposts to
travel by. We know, for instance, that more is required than “a
sheer possibility that a defendant has acted unlawfully.”
17
Iqbal, 556 U.S. at 678. A plaintiff must allege sufficient
factual content to “‘nudg[e]’ his claim of purposeful
discrimination ‘across the line from conceivable to plausible.’”
Id. at 683 (quoting Twombly, 550 U.S. at 570).
Yet we also know that “[t]he plausibility standard is not
akin to a ‘probability requirement.’” Id. at 678. In other
words, it need not appear from the complaint that the
plaintiff’s claims are likely to succeed. As this Court
recently recognized, “[a]lthough . . . the factual allegations
in a complaint must make entitlement to relief plausible and not
merely possible, what Rule 12(b)(6) does not countenance are
dismissals based on a judge’s disbelief of a complaint’s factual
allegations.” McLean v. United States, 566 F.3d 391, 399 (4th
Cir. 2009) (internal quotation marks, alterations and citations
omitted). Further, plausibility will not look the same in every
case; assessing plausibility is “a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
In evaluating the allegations in McCleary-Evans’s
complaint, however, we are not limited to the sparse guidance to
be gleaned from Twombly and Iqbal. In 2002 the Supreme Court
decided Swierkiewicz, a case involving the sufficiency of a
wrongful termination claim under Title VII. 534 U.S. 506. In a
unanimous opinion authored by Justice Thomas, the Court held
18
that “a complaint in an employment discrimination lawsuit [need]
not contain specific facts establishing a prima facie case of
discrimination under the framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).” Id. at 508. To
the contrary, the plaintiff “easily satisfie[d]” Rule 8(a)(2)
when he “detailed the events leading to his termination,
provided relevant dates, and included the ages and nationalities
of at least some of the relevant persons involved with his
termination.” Id. at 514 (emphasis added). The Court held that
such allegations “give respondent fair notice of what
petitioner’s claims are and the grounds upon which they rest.”
Id. Five years later, the Court told us that Swierkiewicz
remains good law, specifically referencing the factual
allegations that the Swierkiewcz Court deemed sufficient to
state “grounds showing entitlement to relief.” Twombly, 550
U.S. at 569-70.
While the majority pays lip service to Swierkiewicz,
acknowledging that a plaintiff need not plead a prima facie case
of discrimination under the McDonnell Douglas framework to
comply with Rule 8(a)(2), see supra at 5-6, it entirely ignores
the factual underpinnings of the Swierkiewicz holding, looking
solely to the Supreme Court’s 2009 decision in Iqbal to guide
its decision. In Iqbal, a Pakistani man who had been detained
during the weeks following the September 11th attacks alleged
19
that United States Attorney General John Ashcroft and Federal
Bureau of Investigations Director Robert Mueller had “adopted an
unconstitutional policy that subjected [him] to harsh conditions
of confinement on account of his race, religion, or national
origin.” Id. at 666. In a five-four decision, the Court held
that Iqbal’s claims against Ashcroft and Mueller did not satisfy
federal pleading requirements. While acknowledging that Rule 9
of the Federal Rules of Civil Procedure “excuses a party from
pleading discriminatory intent under an elevated pleading
standard,” id. at 686, the Court held that Iqbal’s bare
assertions of Ashcroft and Mueller’s discriminatory purpose were
not entitled to the assumption of truth and that the remainder
of his complaint failed to state a plausible claim. Id. at 697.
The apparent tension between the Court’s decisions in Iqbal
and Swierkiewicz is well-documented. 1 Despite this tension,
however, “we have no authority to overrule a Supreme Court
decision no matter . . . how out of touch with the Supreme
1
See, e.g., McCauley v. City of Chicago, 671 F.3d 611, 623
(7th Cir. 2011) (Hamilton, dissenting) (“Iqbal . . . created
tension with Swierkiewicz by endorsing its holding while
simultaneously appearing to require the same sort of fact-
specific pleading of discriminatory intent that the Swierkiewicz
Court rejected.”); Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir.
2011) (“The juxtaposition of Swierkiewicz . . . on the one hand,
and . . . Iqbal, on the other, is perplexing”); Arthur R.
Miller, From Conley to Twombly to Iqbal: A Double Play on the
Federal Rules of Civil Procedure, 60 Duke L.J. 1, 31 (2010)
(noting that the tension between Iqbal and Swierkiewicz has
“caus[ed] confusion and disarray among judges and lawyers”).
20
Court’s current thinking the decision seems.” Scheiber v. Dolby
Labs., Inc., 293 F.3d 1014, 1018 (7th Cir. 2002) (Posner, J.).
See also Columbia Union College v. Clarke, 159 F.3d 151, 158
(4th Cir. 1998) (recognizing that “lower courts are not to
conclude that the Court’s more recent cases have, by
implication, overruled its earlier precedent” (alterations and
internal quotation marks omitted)). This is particularly true
where, as here, the Supreme Court has said loud and clear that
its prior decision has not been overruled.
We are therefore confronted with two Supreme Court cases
having apparent relevance to the case before us. One of these
cases, Swierkiewicz, involves a Title VII plaintiff who alleged
that his employer wrongfully terminated him due to his national
origin. The other, Iqbal, involves a suspected terrorist who
alleged that he was mistreated pursuant to an unconstitutional
policy instituted by the United States Attorney General in
conjunction with the Director of the Federal Bureau of
Investigations. I have little difficulty deciding which case
has greater applicability to the run-of-the-mill employment
discrimination case before us. 2
2
Further, I agree with Judge Hamilton’s view that “we must
take care not to expand Iqbal too aggressively beyond its highly
unusual context—allegations aimed at the nation’s highest-
ranking law enforcement officials based on their response to
unprecedented terrorist attacks on the United States homeland—to
21
The Seventh Circuit adopts the view that Swierkiewicz
should continue to guide courts’ application of federal pleading
requirements in straightforward discrimination cases. In
Swanson v. Citibank, N.A., the plaintiff alleged that Citibank
denied her loan application because she was African-American in
violation of the Fair Housing Act. 614 F.3d at 402-03. The
court concluded that the complaint satisfied the Twombly/Iqbal
plausibility standard where the plaintiff identified “the type
of discrimination that she thinks occur[ed] (racial), by whom
(Citibank, through Skertich, the manager, and the outside
appraisers it used), and when (in connection with her effort in
early 2009 to obtain a home-equity loan).” Id. at 617. The
court held that the plausibility standard must be viewed through
the lens of Swierkiewicz in most straightforward discrimination
cases. Id. at 404. In reaching this holding, the court offered
the following illustration:
A plaintiff who believes that she has been passed over
for a promotion because of her sex will be able to
plead that she was employed by Company X, that a
promotion was offered, that she applied and was
qualified for it, and that the job went to someone
else. That is an entirely plausible scenario, whether
or not it describes what “really” went on in this
plaintiff’s case.
cut off potentially viable claims.” McCauley v. City of
Chicago, 671 F.3d 611, 628-29 (7th Cir. 2011) (Hamilton, J.,
dissenting).
22
Id. at 404-405 (emphasis added). Even Judge Posner, who
dissented in Swanson, acknowledged that Swierkiewicz—though
distinguishable in his view—remains good law, recognizing that
“lower-court judges are not to deem a Supreme Court decision
overruled even if it is plainly inconsistent with a subsequent
decision.” Id. at 410.
Turning to McCleary-Evans’s complaint, it is clear that her
allegations go beyond what Swierkiewicz (and well-beyond what
Swanson) found sufficient to satisfy Rule 8(a)(2). McCleary-
Evans contends that she applied for two positions with the
Maryland Department of Transportation’s State Highway
Administration. She lays out in immense detail her
qualifications for these positions. She identifies the Highway
Administration employees responsible for denying her
applications, and states that both were non–African American.
She alleges that she and other African Americans who applied for
positions with the Highway Administration were denied employment
in favor of non–African American applicants. Finally, she
alleges that based on her interview experience and what she
apparently perceived as a discriminatory history of hires within
the Highway Administration, her race played a role in the
decision to hire non-African-American candidates over her. In
this particular context, drawing on “judicial experience and
23
common sense,” Iqbal, 556 U.S. at 679, McCleary-Evans’s claim of
race discrimination is eminently plausible.
I am not unmindful of the policy concerns that underlie the
Supreme Court’s decisions in Twombly and Iqbal. As Judge Posner
pointed out in his Swanson dissent, the Court quite clearly
aimed to curb the rising costs of discovery born by defendants
facing meritless lawsuits and to quell the tide of “extortionate
litigation” in this country. Swanson, 614 F.3d at 411 (Posner,
dissenting) (citing Frank H. Easterbrook, “Discovery as Abuse,”
69 B.U. L. Rev. 635, 639 (1989)). Indeed, the Twombly/Iqbal
standard incentivizes plaintiffs to be more diligent in their
pre-litigation investigations, thereby bringing greater balance
to the asymmetric discovery burdens that may arise in
litigation.
Yet if we are to consider litigation costs in the
application of federal pleading standards, we must take care not
to ignore the costs borne by plaintiffs and society as a whole
when meritorious discrimination lawsuits are prematurely
dismissed. See Miller, supra at 61. We ought not forget that
asymmetric discovery burdens are often the byproduct of
asymmetric information. The district court’s decision below
exemplifies the risks posed by an overly broad reading of
Twombly and Iqbal. The district court faulted McCleary-Evans
for failing to allege how much control the Highway
24
Administration employees named in the complaint “wield[ed]” over
other members of the hiring committee and failing to identify
the qualifications of the selected candidates. J.A. 27-28. It
is simply unrealistic to expect McCleary-Evans to allege such
facts without the benefit of at least some limited discovery.
When we impose unrealistic expectations on plaintiffs at the
pleading stage of a lawsuit, we fail to apply our “judicial
experience and common sense” to the highly “context-specific
task” of deciding whether to permit a lawsuit to proceed to
discovery. Iqbal, 556 U.S. at 679. At the early stages of
Title VII litigation, borderline conclusory allegations may be
all that is available to even the most diligent of plaintiffs.
The requisite proof of the defendant’s discriminatory intent is
often in the exclusive control of the defendant, behind doors
slammed shut by an unlawful termination. 3
Finally, I must take issue with the majority’s suggestion
that by “retiring” the Conley v. Gibson, 355 U.S. 41 (1957), “no
set of facts” standard in Twombly, 550 U.S. at 563, the Supreme
Court all but retired Swierkiewicz. Under the majority’s view,
what remains of Swierkiewicz after Twombly is the bare holding
3
This state of affairs has led some commentators to argue
for a broadened use of pre-dismissal discovery, a tool that is
within the discretion of district courts. See, e.g., Suzette M.
Malveaux, Front Loading and Heavy Lifting: How Pre–Dismissal
Discovery Can Address the Detrimental Effect of Iqbal on Civil
Rights Cases, 14 Lewis & Clark L. Rev. 65 (2010)).
25
that courts should not use the magic words of McDonnell Douglas
to assess the sufficiency of Title VII claims at the 12(b)(6)
stage. Thus, the majority would render Swierkiewicz a hollow
shell and mute its primary thrust – namely, that discriminatory
intent need not be pled with specific facts. 4 But the Supreme
Court in Swierkiewicz specifically forbade using judicial
interpretation to limit the scope of its holding. Indeed, in
Swierkiewicz, in response to the argument that the Court’s
holding would “burden the courts” by “allowing lawsuits based on
conclusory allegations of discrimination to go forward,”
Swierkiewicz, 534 U.S. at 514, Justice Thomas, writing for a
unanimous Court, stated that “[a] requirement of greater
specificity for particular claims is a result that ‘must be
obtained by the process of amending the Federal Rules, and not
by judicial interpretation.’” Id. (emphasis added) (quoting
Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 168–169 (1993)). As far as I
4
Indeed, in affirming dismissal of Swierkiewicz’s national
origin discrimination claim, the Second Circuit stated, “the
only circumstances Swierkiewicz pled are that he is Hungarian,
others at Sorema are French, and the conclusory allegation that
his termination was motivated by national origin discrimination.
. . . .[T]hese allegations are insufficient as a matter of law
to raise an inference of discrimination.” Swierkiewicz v.
Sorema, N.A., 5 F. App'x 63, 64 (2d Cir. 2001) rev'd, 534 U.S.
506. That a unanimous Supreme Court explicitly rejected the
Second Circuit’s demand for greater specificity cannot be
ignored.
26
am aware, no amendment to the Federal Rules has taken effect
since the Court’s ruling in Swierkiewicz that would require the
level of specificity that the majority by its own “judicial
interpretation” demands from McCleary-Evans.
Because McCleary-Evans’s complaint states a plausible claim
of discrimination on the basis of race, I respectfully dissent.
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