The Sixth and Third Circuits both hold today that the “plausibility” pleading standard of Ashcroft v. Iqbal, 129 S. Ct. 1955 (2009), applies to garden-variety employment discrimination cases. In the same opinion, the Third Circuit declares a four-year limitations period for a Rehabilitation Act failure-to-transfer claim under 29 U.S.C. § 794(d).
Up until recently, the governing standard for judging the fitness of a federal complaint under Rule 8 was Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which permitted district courts to dismiss a complaint for failure to state a claim only if “it appear[ed] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. With the advent of Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007), the standard has shifted, as the decisions below demonstrate.
Courie v. Alcoa Wheel & Forged Products, No. 07-4440 (6th Cir. Aug. 18, 2009): Here’s the incident that launched two lawsuits —
“In 2003, someone left an inappropriate note on an Alcoa cafeteria table where African-American employees tended to sit. In its investigation into the incident, an employee of Alcoa’s human resources department spoke with Courie, who denied leaving the note. Recalling who he did sit with at lunch that day, Courie, unable to recall the employee’s name, said he sat with ‘Jew Boy,’ among others. Alcoa later sent Courie a warning stating that it considered that term “racially offensive.” In response, Courie filed a grievance with his union, stating it was not racist and that other Alcoa employees of various races had also used the term. Courie also claimed the warning constituted a breach of the collective bargaining agreement because Alcoa reprimanded him only.”
Believing that he’d been set up, Courie brought an individual state-court tort lawsuit against Alco and the human-resources employee, which he eventually lost. Meanwhile, the plaintiff alleges, his union and employer resolved the original dispute under the collective bargaining agreement, but a manner that left the employee’s remark branded as “inappropriate.” (Whether there was a settlement is a disputed issue.) He brought a federal court suit against Alco and the union, claiming state tort, hybrid §301/duty or fair representation and state civil rights violations. His spouse was also a plaintiff on a loss of consortium theory. The case was dismissed on the pleadings.
On appeal, The Sixth Circuit has its first occasion since Iqbal to address the proper pleadings standard under Fed. R. Civ. P. 8 for an employment discrimination case. The Court holds:
“The [Supreme] Court has now explained, however, that a civil complaint only survives a motion to dismiss if it ‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ Iqbal, 129 S. Ct. at 1949. . . . Exactly how implausible is ‘implausible’ remains to be seen, as such a malleable standard will have to be worked out in practice. . . .
“The Couries’ legal arguments rest wholly upon the existence of a ‘settlement agreement’ that possibly does not exist: all we have is an unsigned proposal from the UAW to Alcoa. Yet a complaint need only ‘contain sufficient factual matter’ to be ‘plausible,’ Iqbal, 129 S. Ct. at 1949, and we cannot dismiss for factual implausibility ‘even if it [would] strike a savvy judge that . . . recovery is very remote and unlikely,’ Twombly, 550 U.S. at 556 (internal quotation marks and citation omitted); see also Iqbal, 129 S. Ct. at 1950 (‘Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’). Here, Courie has alleged that this settlement agreement exists and has provided an unsigned settlement proposal as an exhibit to his complaint in support. For purposes of his motion to dismiss, that is ‘sufficient’ detail for us to assume that the agreement existed. But, as explained below, even assuming the agreement exists, Courie’s complaint does not state claims upon which relief may be granted.”
The panel affirms dismissal of the employment discrimination claim both on the ground that Courie failed to identify in the complaint any employee similarly situated who was treated better, and that even assuming that the settlement agreement was genuine, it did not constitute an “adverse action.”
Fowler v. UPMC Shadyside, No. 07-4285 (3d Cir. Aug. 18, 2009): The panel summarizes the facts —
“The relevant facts underlying this appeal are not complicated and we take them directly from Fowler’s complaint. Fowler was injured on the job while employed by UPMC as a janitor/housekeeper at Shadyside Hospital. She was injured on April 22, 2002 and was placed on Family/Medical Leave and short-term disability. After she was released by her doctor to perform sedentary work, UPMC provided Fowler with a light-duty clerical position. However, UPMC eliminated this position on August 29, 2003. Fowler avers in her complaint that before UPMC eliminated her clerical position she applied for a similar job but was never contacted by UPMC about that position. UPMC terminated her employment on September 24, 2003.”
Plaintiff brought her claim under the Rehabilitation Act, 29 U.S.C. § 794(d). The district court dismissed the complaint, finding that it was barred by the two-year statute of limitations borrowed from state law, and that it failed to set forth allegations sufficient to establish that she suffered a “disability.”
On appeal, the panel reverses. It, too, confronts Iqbal and holds that it applies to federal employment discrimination claims. The panel declares that Iqbal requires a two-step analysis of a complaint:
“[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions. Id. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’ Id. at 15. In other words, a complaint must do more than allege the plaintiff’s entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts. See Phillips, 515 F.3d at 234-35.”
The panel then holds that Iqbal supersedes the Supreme Court’s decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002):
“Swierkiewicz and Iqbal both dealt with the question of what sort of factual allegations of discrimination suffice for a civil lawsuit to survive a motion to dismiss, but Swierkiewicz is based, in part, on Conley, which the Supreme Court cited for the proposition that Rule 8 ‘relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.’ 534 U.S. at 512. We have to conclude, therefore, that because Conley has been specifically repudiated by both Twombly and Iqbal, so too has Swierkiewicz, at least insofar as it concerns pleading requirements and relies on Conley.”
Nevertheless, the panel in this case holds that the district court was premature in dismissing the complaint, finding it sufficient to establish a plausible claim:
“The complaint pleads how, when, and where UPMC allegedly discriminated against Fowler. She avers that she was injured on the job and that her doctor eventually released her to perform ‘sedentary work.’ She pleads that UPMC gave her a light-duty clerical position. She also avers that before the elimination of her light duty clerical position, she applied for a telephone operator position, but ‘was never contacted by UPMC regarding that position.’ Fowler further alleges that she contacted ‘Susan Gaber, a Senior Human Resources Consultant with the Defendant, UPMC Shadyside, regarding [a] number of vacant sedentary jobs,’ but that she was ‘never contacted by UPMC regarding any open positions.’ Fowler’s complaint alleges that UPMC ‘failed to transfer’ her to another position in September of 2003.”
Moreover, the Third Circuit resolves an intra-circuit split and holds that failure-to-transfer claims have a four-year limitations period. The act does not have a general limitations period and so borrows the state-law (here, Pennsylvania) personal injury period of two years. Though the Rehabilitation Act has generally been in existence since 1973, Congress expanded the scope of the act in 1992 by incorporating the ADA standards of liability (29 U.S.C. § 794(d)). Thus, for claims that did not exist under the Rehabilitation Act until that amendment (such as the failure-to-transfer claim here), the four-year catch-all period of 28 U.S.C. § 1658 applies instead. Good to know when you have a covered employer, such as the public university hospital in this case.