Kathryn Sheppard v. David Evans and Assoc. , 694 F.3d 1045 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHRYN SHEPPARD, 
Plaintiff-Appellant, No. 11-35164
v.
 D.C. No.
3:10-cv-00276-BR
DAVID EVANS AND ASSOC., an
Oregon corporation, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
July 11, 2012—Portland, Oregon
Filed September 12, 2012
Before: Betty B. Fletcher and Harry Pregerson,
Circuit Judges, and Donald E. Walter,
Senior District Judge.*
Opinion by Judge Pregerson
*The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for Western Louisiana, sitting by designation.
11167
SHEPPARD v. EVANS AND ASSOC. 11169
COUNSEL
Glenn N. Solomon, Portland, Oregon, for the plaintiff-
appellant.
Victor Kisch, P.K. Runkles-Pearson, Stoel Rives LLP, Port-
land, Oregon, for the defendant-appellee.
P. David Lopez, General Counsel, Lorraine C. Davis, Acting
Associate General Counsel, Daniel T. Vail, Attorney, United
11170 SHEPPARD v. EVANS AND ASSOC.
States Equal Employment Opportunity Commission, Office of
General Counsel, Washington, D.C., for amicus curiae United
States Equal Employment Opportunity Commission.
Todd A. Hanchett, Brenda K. Baumgart, Barran Liebman
LLP, Portland, Oregon, for amicus curiae Oregon Association
of Defense Counsel.
OPINION
PREGERSON, Circuit Judge:
In 2010 Plaintiff-Appellant Kathryn Sheppard
(“Sheppard”) filed a complaint in federal district court against
her former employer, David Evans and Associates (“Evans”).
The complaint alleged causes of action for: (1) employment
discrimination under the Age Discrimination in Employment
Act (“ADEA”); and (2) “wrongful discharge” under Oregon
law. The district court dismissed Sheppard’s complaint, with
leave to amend, for failure to state a claim under Federal Rule
of Civil Procedure 8(a)(2). Sheppard then filed an amended
complaint alleging the same causes of action and adding some
factual details. The district court dismissed Sheppard’s
amended complaint with prejudice concluding she had “failed
to plead any cause of action with sufficient factual detail to
state a claim,” and therefore failed to satisfy the pleading
requirements of Federal Rule of Civil Procedure 8(a)(2).
Sheppard appeals the district court’s ruling.
As discussed below, we conclude that Sheppard’s amended
complaint, while brief, nonetheless satisfies Rule 8(a)(2)’s
pleading standard. Accordingly, we reverse the district court’s
dismissal of Sheppard’s amended complaint.
BACKGROUND
The allegations in Sheppard’s amended complaint are
recounted verbatim below:
SHEPPARD v. EVANS AND ASSOC. 11171
1. Plaintiff, (Sheppard) is an adult female citizen in
the federally protected age group under the ADEA,
29 USC 621 et seq. She is over the age of forty.
2. Defendant, (Evans) is an Oregon corporation that
does business in Portland, Oregon.
3. Sheppard worked for Evans as an Executive
Administrative Assistant from 11/28/05 to 2/2/09.
4. Sheppard was involuntarily terminated from her
position by Evans.
5. At all material times her performance was satis-
factory or better. She received consistently good per-
formance reviews.
6. At the time of her termination there were five
comparators employed by Evans in Oregon of which
Sheppard was the oldest.
7. [Sheppard’s] younger comparators kept their jobs.
8. Age was a determining factor in the decision to
terminate Shepard.
9. Prior to her termination, Sheppard requested Fam-
ily Medical Leave for a serious illness. She qualified
for both Oregon Family Medical Leave and federal
Family Medical Leave.
10. In so doing Shepard was [pursuing] a right of
public importance that belonged to her as an
employee.
11. Sheppard was terminated immediately after she
scheduled the surgery for which she requested Fam-
ily Medical Leave.
11172 SHEPPARD v. EVANS AND ASSOC.
12. [Sheppard’s] attempt to use Family Medical
Leave was a substantial motivating factor for her ter-
mination.
13. Sheppard was terminated because she pursued a
right of public importance, Family Medical Leave,
that belonged to her as an employee.
14. Sheppard’s termination was therefore a wrongful
act in violation of public policy under Oregon law.
15. [Sheppard] has met all administrative exhaustion
requirements under the Age Discrimination in
Employment Act, and this complaint is timely filed.
16. As a result of her termination Sheppard lost and
continues to lose wages and benefits.
17. As a result of her termination Sheppard suffered
and continues to suffer emotional pain and a sense of
degradation.
STANDARD OF REVIEW
We review de novo a district court’s dismissal of a com-
plaint for failure to state a claim. Starr v. Baca, 652 F.3d
1202, 1205 (9th Cir. 2011). The facts in the complaint are
accepted as true and are construed in the light most favorable
to the plaintiff. AE ex rel. Hernandez v. Cnty. of Tulare, 666
F.3d 631, 636 (9th Cir. 2012).
DISCUSSION
[1] Federal Rule of Civil Procedure 8(a)(2) requires that
each claim in a pleading be supported by “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Under this rule, a claim must contain “more than
labels and conclusions” or a “formulaic recitation of the ele-
SHEPPARD v. EVANS AND ASSOC. 11173
ments of a cause of action.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). Instead, to satisfy Rule 8(a)(2), a
“complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quota-
tion marks omitted). Although this standard requires that a
claim be “plausible on its face,” it does not require that a
complaint contain “detailed factual allegations.” Iqbal, 556
U.S. at 678 (internal quotation marks omitted). As the text of
Rule 8(a)(2) itself makes clear, even a “short and plain” state-
ment can state a claim for relief. See Fed. R. Civ. P. 8(a)(2).
Here, as discussed below, Sheppard’s two-and-one-half page
complaint, while brief, nonetheless satisfies Rule 8(a)(2)’s
pleading standard.
I. Sheppard’s Amended Complaint Contains a Plausible
Claim of Age Discrimination under the ADEA
[2] The ADEA prohibits an employer from, among other
things, “discharging” an employee who is over forty years of
age “because of” the employee’s age. 29 U.S.C. §§ 623(a)(1),
631(a). Under a “disparate treatment”1 theory of discrimina-
tion, a plaintiff in an ADEA case can establish age discrimi-
nation based on: (1) “circumstantial evidence” of age
1
A plaintiff in an employment discrimination case can proceed under
two theories of employment discrimination: “disparate treatment and dis-
parate impact.” Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d
802, 811 (9th Cir. 2004) (citing Hazen Paper Co. v. Biggins, 507 U.S.
604, 609 (1993)). “Disparate treatment is demonstrated when the
employer simply treats some people less favorably than others because of
[a protected characteristic].” Id. (internal marks and quotation marks omit-
ted). “Disparate impact” is demonstrated when “employment practices that
are facially neutral in their treatment of different groups . . . fall more
harshly on one group than another and cannot be justified by business
necessity.” Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003)
(internal quotation marks omitted). Because Sheppard’s amended com-
plaint does not contain any allegation regarding a “facially neutral”
employment practice, we analyze Sheppard’s claim under a “disparate
treatment” theory of discrimination.
11174 SHEPPARD v. EVANS AND ASSOC.
discrimination; or (2) “direct evidence” of age discrimination.
See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207
(9th Cir. 2008) (discussing circumstantial evidence of age dis-
crimination); Enlow v. Salem-Keizer Yellow Cab Co., Inc.,
389 F.3d 802, 811 (9th Cir. 2004) (discussing direct evidence
of age discrimination). Here, Sheppard’s two-and-a-half page
amended complaint, while brief, alleges a plausible claim of
age discrimination based on circumstantial evidence of dis-
crimination.
Claims of age discrimination based on circumstantial evi-
dence are analyzed under the “three-stage burden shifting
framework laid out in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).” Diaz, 521 F.3d at 1207. Under the
McDonnell Douglas framework:
[T]he employee must first establish a prima facie
case of age discrimination. If the employee has justi-
fied a presumption of discrimination, the burden
shifts to the employer to articulate a legitimate, non-
discriminatory reason for its adverse employment
action. If the employer satisfies its burden, the
employee must then prove that the reason advanced
by the employer constitutes mere pretext for unlaw-
ful discrimination.
Diaz, 521 F.3d at 1207. To establish a prima facie case of dis-
crimination, a plaintiff must allege in her complaint that: (1)
she was at least forty years old; (2) she was performing her
job satisfactorily; (3) discharged; and (4) “either replaced by
[a] substantially younger [employee] with equal or inferior
qualifications or discharged under circumstances otherwise
giving rise to an inference of age discrimination.” Id. (empha-
sis added) (internal quotation marks omitted). “An inference
of discrimination can be established by showing the employer
had a continuing need for the employee[’s] skills and services
in that their various duties were still being performed . . . or
by showing that others not in their protected class were
SHEPPARD v. EVANS AND ASSOC. 11175
treated more favorably.” Id. at 1207-08 (internal marks and
quotation marks omitted).
[3] Here, Sheppard’s amended complaint alleges a “plausi-
ble” prima facie case of age discrimination. Her complaint
alleges that: (1) she was at least forty years old; (2) “her per-
formance was satisfactory or better” and that “she received
consistently good performance reviews”; (3) she was dis-
charged; and (4) her five younger comparators kept their jobs.
Sheppard’s allegation that her five younger comparators
kept their jobs gives rise to an “inference of age discrimina-
tion” because it plausibly suggests that Evans “had a continu-
ing need for [Sheppard’s] skills and services [because her]
various duties were still being performed.” See Diaz, 521 F.3d
at 1207 (internal marks and quotation marks omitted). It also
plausibly suggests that employees outside her protected class
“were treated more favorably” than Sheppard. See id.
[4] Although Sheppard’s complaint is brief, her allegations
are sufficient to state a prima facie case of discrimination. As
the Seventh Circuit has explained:
[I]n many straightforward cases, it will not be any
more difficult today for a plaintiff to meet [her] bur-
den than it was before the [Supreme] Court’s recent
decisions [in Iqbal and Twombly]. A plaintiff who
believes that she has been passed over for a promo-
tion 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 [the] plaintiff’s case.
Swanson v. Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir.
2010). Like the Seventh Circuit’s hypothetical, Sheppard’s
complaint puts forward a “straightforward” case of discrimi-
11176 SHEPPARD v. EVANS AND ASSOC.
nation. She alleges that she was over forty and “received con-
sistently good performance reviews,” but was nevertheless
terminated from employment while younger workers in the
same position kept their jobs. This is an “entirely plausible
scenario” of employment discrimination. Swanson, 614 F.3d
at 404-05.2
II. Sheppard’s Amended Complaint Contains a
Plausible Claim for Wrongful Discharge
A. “Wrongful Discharge” Under Oregon Law
Under Oregon law “an employer may discharge an
employee at any time, for any reason, unless doing so violates
a contractual, statutory or constitutional requirement.” Yeager
v. Providence Health Sys. Oregon, 96 P.3d 862, 865 (Or. Ct.
App. 2004) (internal quotation marks omitted). The tort of
wrongful discharge provides an exception to this general rule.
Estes v. Lewis & Clark Coll., 954 P.2d 792, 796 (Or. Ct. App.
1998). An employee may bring a claim for wrongful dis-
charge “when the discharge is for exercising a job-related
right that reflects an important public policy.” Yeager, 96 P.3d
at 865 (internal citations omitted).3 Examples of “exercising
a job-related right that reflects an important public policy,”
include an employee filing for workers compensation, see
2
A plaintiff in an ADEA case is not required to plead a prima facie case
of discrimination in order to survive a motion to dismiss. See Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 508-11 (2002). Nevertheless, in situations
such as this, where a plaintiff pleads a plausible prima facie case of dis-
crimination, the plaintiff’s complaint will be sufficient to survive a motion
to dismiss. See Swanson, 614 F.3d at 404-05.
3
An employee may also bring a claim for wrongful discharge when she
was discharged “for fulfilling some important public duty.” Babick v. Ore-
gon Arena Corp., 40 P.3d 1059, 1062 (Or. 2002). Examples of a “public
duty” wrongful discharge include discharge for refusing to defame another
employee, see Delaney v. Taco Time Int’l, 618 P.2d 114 (Or. 1984), or
discharge for serving on jury duty, see Nees v. Hocks, 536 P.2d 512 (Or.
1975). Id. This type of wrongful discharge is not at issue in this appeal.
SHEPPARD v. EVANS AND ASSOC. 11177
Brown v. Transcon Lines, 588 P.2d 1087 (Or. 1978), or an
employee taking leave under the Oregon Family Leave Act,
see Yeager, 96 P.3d 862.
[5] To prevail on a claim of wrongful discharge, a plaintiff
“must establish a ‘causal connection’ between a protected
activity and the discharge.” Estes, 954 P.2d at 796-97 (quot-
ing Shockey v. City of Portland, 837 P.2d 505, 507 (Or.
1992)). A “causal connection” requires a showing that “the
employee’s protected activity [was] a substantial factor in the
motivation to discharge the employee.” Id. at 797 (internal
quotation marks omitted). “[T]o be a substantial factor, the
employer’s wrongful purpose must have been a factor that
made a difference in the discharge decision.” Id. (internal
quotation marks omitted).
B. Sheppard’s Amended Complaint Includes Sufficient Facts
to Plausibly Suggest that She Was Terminated for
Requesting Medical Leave
Sheppard alleges in her amended complaint that, “[p]rior to
her termination, [she] requested Family Medical Leave for a
serious illness.” Her amended complaint further alleges that
she was “terminated immediately after she scheduled the sur-
gery for which she requested Family Medical Leave” and that,
prior to her termination, Sheppard had “received consistently
good performance reviews.” These allegations are sufficient
to state a claim for wrongful discharge.
[6] The Supreme Court has emphasized that analyzing the
sufficiency of a complaint’s allegations 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
Sheppard’s case, “common sense” suggests that there is a
“causal connection” between Sheppard’s request for medical
leave and her termination. Significantly, Sheppard’s amended
complaint alleges that she was terminated “immediately” after
she scheduled her surgery. This allegation, in conjunction
11178 SHEPPARD v. EVANS AND ASSOC.
with Sheppard’s allegation that she “received consistently
good performance reviews” gives rise to an inference that
Sheppard was performing her job well but was nonetheless
terminated for requesting medical leave.
CONCLUSION
[7] We REVERSE the district court’s dismissal of Shep-
pard’s amended complaint and REMAND for further pro-
ceedings consistent with this opinion.