The Ninth Circuit reminds courts that the notice pleading standard for garden-variety employment discrimination cases remains low under Fed. R. Civ. P. 8, and that a simple three-page complaint can suffice.
Sheppard v. Evans And Assoc., No. 11-35164 (9th Cir. Sept. 12, 2012): Since the advent of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), defense counsel and some federal courts have concluded that employees have a higher burden of pleading facts in support of their employment discrimination complaints under Federal Rule of Civil Procedure 8. One circuit, the Third Circuit, has even gone so far as to hold that the prior controlling authority – Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) – was impliedly overruled by Iqbal. Fowler v. UPMC Shadyside, 578 F.3d 203, 22 A.D. Cases 353 (3d Cir. 2009).
But the Ninth Circuit has rejected that path. In its brief decision in this case, the panel holds that even a very short complaint can be sufficient.
Here, the complaint – alleging ADEA, FMLA and state law claims – ran just 17 lines long. The panel reverses a decision that the complaint somehow “failed to plead any cause of action with sufficient factual detail to state a claim,” and therefore failed to satisfy the pleading requirements of Rule 8(a)(2).
Holds the panel, with respect to the ADEA claim, even the barest claims can be enough:
“Here, Sheppard’s amended complaint alleges a ‘plausible’ prima facie case of age discrimination. Her complaint alleges that: (1) she was at least forty years old; (2) ‘her performance was satisfactory or better’ and that ‘she received consistently good performance reviews’; (3) she was discharged; and (4) her five younger comparators kept their jobs.”
The panel, in contrast to the Third Circuit, applies the Swierkiewicz decision:
“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 (2002). Nevertheless, in situations such as this, where a plaintiff pleads a plausible prima facie case of discrimination, the plaintiff’s complaint will be sufficient to survive a motion to dismiss.”
The court cites and quotes favorably the Seventh Circuit standard in Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010):
“[I]n many straightforward cases, it will not be any more difficult today for a plaintiff to meet [her] burden 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 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 [the] plaintiff’s case.”
The panel reverses dismissal of the complaint (the ADEA, FMLA and state law claims), and remands.