The U.S. Supreme Court in recent terms has encouraged federal courts to weed out supposedly meritless civil claims by use of the Rule 12(b)(6) motion to dismiss for failure to state a claim. Yet the Seventh Circuit reaffirms this week that this method is often not appropriate for Title VII discrimination and retaliation claims. The panel vacates and remands dismissal of a Title VII complaint, holding that the district court was too quick to demand facts and evidence in support of the class before discovery commenced. The court also reverses a decision holding that some of the claims were allegedly preempted by the Railway Labor Act.
Carlson v. CSX Transportation, Inc., No. 13-1944 (7th Cir. July 10, 2014): The plaintiff originally brought suit in 2007, alleging a failure to promote on the basis of sex. When she was eventually promoted after filing the original action, according to her complaint, "her superiors at CSX then made the training program intolerable by belittling her, assigning her extra work, and giving her unjustifiably poor evaluations, leaving her no viable choice but to drop out."
plaintiff also claimed that she was later denied an opportunity to return to her substitute yardmaster role, and the proffered reasons (lack of a vacancy and not meeting minimum requirements) turned out to be false. As vacancies opened up for that title, CSX continued to hire men, while allegedly offering untruthful explanations (such as allowing a man to transfer across districts to accept employement , an opportunity that was denied to her). Carlson filed addition al charges of discrimination to cover these instances of alleged discrimination and retaliation.
The district court dismissed most of the complaint, finding insufficient facts in the complaint to support each of the claims. And for the claims based on CSX's refusal to return her to the substitute yardmaster position in Birmingham, the court held that they were prempted by the federal Railway Labor Act (RLA) because they were grounded in a collective bargaining agreement and thus had to be arbitrated.
The Seventh Circuit vacates and remands. While acknowledging the recent Supreme Court decisions boosting the use of Rule 12(b)(6) motions to dismiss as a screen for implausible claims (Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)), the panel holds that the district court went too far in demanding the pleading of evidence. "The court repeatedly faulted her for not providing 'evidence' in support of her claims, ... though of course evidence is not required at the pleading stage. ... The judicial pen may sometimes slip inadvertently in these ways, but in this case the slips signaled accurately that the court had applied too demanding a standard."
Concerning the discrimination claims of repeated denials of substitute yardmaster jobs, the panel holds that a Title VII complaint is governed directly by the Supreme Court's decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Thus, a "plaintiff is not required to include allegations-such as the existence of a similarly situated comparator-that would establish a prima facie case of discrimination under the 'indirect' method of proof." Because "she alleged which positions she sought and was denied, and she attributed the denial to sex discrimination," she satisfied the standard for pleading a Title VII case. Carlson even alleged, though not strictly necessary to survive a Rule 12 motion, that men were allowed to become substitute yardmasters without meeting the same conditions imposed on her, and that CSX offered shifting explanations for her failure to obtain transfer to a vacancy.
On the retaliation claims, the panel restates that in spite of Univ. of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534 (2013), "[t]he requirement of but-for causation in retaliation claims does not mean that the protected activity must have been the only cause of the adverse action. Rather, it means that the adverse action would not have happened without the activity."
The panel rejects the contention that a long gap between the protected activity and adverse action renders retaliation implausible as a matter of law: "no bright-line timing rule can be used to decide whether a retaliation claim is plausible or whether it should go to a jury. Other factors can always be relevant." Thus, the facts of this case might support causation notwithstanding a gap in time:
"In this case, Carlson has alleged that the resolution of her 2007 lawsuit in 2009 sparked animosity right away and that all of her attempts to advance at CSX since then have been thwarted. She has described an ongoing campaign of retaliation, and her claims must be viewed through that lens."
Concerning the allegation that she was constructively demoted by being hounded out of the training program, the district court erred by finding Carlson's allegations too conclusory:
"Even if a claim might theoretically be too 'conclusory'-a theory hard to square with Swierkiewicz and Swanson [v. Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir. 2010)], at least where the situation is identified and unlawful motivation alleged-Carlson included specific examples of poor treatment. ... The conditions Carlson described in her complaint may not ultimately qualify as intolerable, but we cannot say so definitively at the pleading stage, which (we stress again) is before any evidence is required. And although 'constructive demotion' (what Carlson has actually asserted) is an unusual claim, it is nonetheless a viable legal theory."
As the panel sums up, it notes that "district court simply demanded too much at the pleading stage here, resulting in further efforts at pleading to reach a standard that is rarely realistic before discovery. This case therefore illustrates well the important distinction the Supreme Court drew in Swierkiewicz between pleading requirements and evidentiary requirements." The panel echoes the call to reconsider, in any event, the weedy proof standards for Title VII cases, "to collapse the different methods of proof into one test: whether a rational jury could find that the employer took action against the plaintiff for an unlawful reason." (The panel also reversed dismissal of an interrelated state contract claim.)
On the RLA preemption issue, the panel by-passes the question (which presents a split in the circuits) about whether preemption presents a jurisdictional issue. It rejects CSX's argument that it was entitled to preemption on the ground that its legitimate, non-discriminatory basis for refusing to reinstate Carlson as a substitute yardmaster was compliance with a collective bargaining agreement. Yet the panel holds under the standard set by Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994), that the Title VII claims were not preempted:
"Carlson does not claim that she was entitled to a particular job under the collective bargaining agreement. She alleges that her applications were rejected because of her sex and in retaliation for protected activity, in violation of Title VII. Her claims thus depend on a 'factual inquiry into any retaliatory [or discriminatory] motive of the employer' rather than on an interpretation of the collective bargaining agreement. See Hawaiian Airlines, 512 U.S. at 266 (finding such claims are not precluded or preempted by RLA)."
The opinion stands as a useful milestone in the recent response in Seventh Circuit case law to obstacles and pitfalls that have befallen Title VII plaintiffs over the decades. It is a measured reaction to the overuse of procedural tools and judge-made standards of proof that have too often choke potentially meritorious claims before they could be tried to a jury.