The Supreme Court takes on another employment-discrimination case (adding to Hulteen, Pyatt and Crawford). The Fifth Circuit, meanwhile, issues a perplexing unpublished decision on pleading employment discrimination under Fed. R. Civ. P. 8.
As reported last week (while I was out) at both SCOTUS blog and Workplace Prof Blog, the Supreme Court returned to the scene of a 20-year-old crime by accepting cert in Gross v. FBL Financial Services, Inc. (8th Cir. May 14, 2008), cert granted December 5, 2008.
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a majority of the Supreme Court agreed that an employee could make out its burden of proof under Title VII by establishing that sex (or any other protected classification) was a motivating factor in the adverse action, while also providing an affirmative defense for employers to prove that the employee would have been terminated anyway (“same decision” defense). Yet the majority could not decide what kind of evidence was required to prove a motivating factor, with influential concurring opinions by Justices White and O’Connor pointing in different directions. So courts in the intervening decades enforced a “direct evidence” standard, suggested by Justice O’Connor — which in some courts, was tantamount to requiring a confession of guilt by the employer to trigger the burden shift.
Congress amended the so-called “mixed motive” standard in the CRA 1991 for Title VII discrimination claims, per the amendment § 703(m) (42 U.S.C. § 2000e-2(m)), which was subsequently construed by the Supreme Court in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), to abolish the “direct evidence” standard. But beyond Title VII discrimination claims, confusion reigns. For ADEA, section 1981 and even for Title VII retaliation claims (left out of § 703(m)), we still do not have a definitive ruling about what quality of evidence is required to the turn the tables on employers. The courts apply Price Waterhouse but do not agree whether that case in fact requires “direct evidence.”
The Gross case — tried under the ADEA — tests a jury charge which stated that “Gross had the burden to prove that (1) FBL demoted Gross to Claims Project Coordinator on January 1, 2003, and (2) that Gross’s age was ‘a motivating factor’ in FBL’s decision to demote Gross.” The charge did not require the jury to come to any conclusion about whether the evidence was “direct” or otherwise. The Eighth Circuit panel held that the charge was erroneous and constituted reversible error. In so holding, the panel acknowledged that the Fifth Circuit had previously ruled the other way, holding that circumstantial evidence alone could support the finding of a motivating factor.
The formal question presented is “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” Given the Supreme Court’s pointed 9-0 denunciation of the direct-evidence standard in Desert Palace (even Justice O’Connor appeared to disown it), and the Supreme Court’s 9-0 decision last year in Sprint/United Management v. Mendelsohn casting doubt on the creation of special evidence rules for employment-discrimination cases, the court is poised once again to rule for plaintiffs (well, one can hope anyway).
Landavazo v. The Toro Co., No. 08-50227 (5th Cir. Dec. 5, 2008): The Fifth Circuit issues an unpublished decision that affirms dismissal of the following complaint under Fed. R. Civ. P. 8:
“Mr. Landavazo was a Production Manager with Defendant.
“Mr. Landavazo was terminated on or about December 9, 2004. Defendant purportedly terminated his employment because Plaintiff supposedly claimed unworked overtime. This purported reason is false, pretextual and a mere excuse for unlawful motivations. The real reasons Mr. Landavazo was discriminated and retaliated against in the terms, conditions and privileges of his employment is because of his race, color, national origin and or ethnicity and or in violation of the Fair Labor Standards Act, Title 29, United States Code, Section 201, et seq., 29 U.S.C. § 201 et seq.”
The Court holds, simply, that this language by itself does not make out a “short and plain statement of the claim showing that the pleader is entitled to relief” under Rule 8.
“We set out the entire factual allegations of Landavazo’s original pleading above. The only factual allegations in the entire pleading are Landavazo’s job title, the date of termination, and the purported reason for termination. The remaining allegations either deny the purported reason for the termination without any affirmative allegations or state legal conclusions. Specifically, Landavazo’s allegation that the ‘purported reason is false, pretextual and a mere excuse for unlawful motivations’ is, at most, a conclusory allegation and provides no notice of Toro’s acts that gives rise to this action.”
Here’s the headscratcher: the case was already a year along, and summary judgment had already been briefed, before the district court ruled on pleadings grounds. Why not just rule on the merits, then? Why doesn’t the filing of answer bring down the curtain on Rule 8 (considering that the defendant demonstrated that it could respond to the complaint)? Truly strange.