Lead Opinion
¶ 1. In this suit for wrongful termination, plaintiff Kerri Colby appeals the superior court order denying her motion to amend the complaint and dismissing her claims against defendant State of Vermont. We reverse and remand.
¶ 2. Defendant Umbrella, Inc. is a Vermont corporation that provides support services to domestic violence victims and operates a state-sponsored childcare resource center. Plaintiff was employed by Umbrella’s child-care-resouree center from February 2000 to October 2002. In October 2002, her employment with the center was terminated. Plaintiff alleges that she was wrongfully terminated as a result of: (1) expressing concerns about what she considered to be a discriminatory new mission statement, and (2) her qualifying disability under the Vermont Fair Employment Practices Act (FEPA).
¶ 8. On May 6, 2005, plaintiff filed a complaint in Essex Superior Court naming the following as defendants: Umbrella, Inc.; Umbrella’s executive director, Michelle Fay; plaintiffs direct supervisor, Jennifer Townsend; and the Department for Children and Families (DCF) Child Development Division. Plaintiff claimed that she was wrongfully terminated in violation of 42 U.S.C. § 1983, FEPA, and public policy. On May 9, 2005, the State moved to dismiss the claims against it pursuant to Vermont Rule of Civil Procedure 12(b)(6). In response, plaintiff filed a memorandum in opposition and a motion to amend the complaint. The amended complaint: (1) added Kimberly Keiser, Director of DCF’s Child
¶ 4. We begin with plaintiffs argument that the court’s denial of her motion to amend the complaint was an abuse of discretion. Under the rules of civil procedure, leave to amend the complaint “shall be freely given when justice so requires.” V.R.C.P. 15(a); Lillicrap v. Martin,
¶ 5. The trial court denied plaintiffs motion to amend the complaint, reasoning that despite plaintiffs amendments, the complaint failed to state any claim against the State for which relief could be granted and was therefore futile. See V.R.C.P. 12(b)(6). In determining whether a complaint can survive a motion to dismiss under Rule 12(b)(6), courts must take the factual allegations in the complaint as true, and consider whether “it appears beyond doubt that there exist no facts or circumstances that
¶ 6. Keeping in mind the generous standard governing Rule 15(a) motions to amend, we first consider plaintiff’s addition of Keiser, director of the Child Care Services Division, as a defendant in her proposed amended complaint. As the trial court noted, under Vermont law, claims based on the actions of a state employee must generally lie against the state, not the individual employee who allegedly committed the harm. 12 V.S.A. § 5602(a); Amy’s Enters. v. Sorrell,
¶ 8. In its order denying the motion to amend, the trial court failed to address plaintiffs proposed amendments to her FEPA claim. Plaintiff argues that the amended complaint stated a legally cognizable claim under FEPA and thereby met notice-pleading requirements under Rule 8(a). Plaintiff alleged in her amended complaint that she had a “qualified disability” under FEPA at all times relevant to her claims, that the defendants failed to reasonably accommodate that disability, and that plaintiffs termination was a “direct and proximate result of [her] disability.” Furthermore, she asserted that the State “is an employer under the definition of employer under 21 V.S.A. § 495,” and that it was therefore “liable for the wrongful actions of Defendants ... in the termination of Plaintiff.” Again, in considering whether the court erred in denying plaintiffs motion
¶ 9. Under FEPA, it is unlawful for “any employer . . . to discriminate . . . against a qualified disabled individual.” 21 V.S.A. § 495(a)(1). While plaintiff did not prove her “qualified disability” in her amended complaint, she was not required to at the pleading stage. Instead, she set out a plain, generalized statement that she had a disability, requested accommodation from her employer, and was fired as a result of the disability. Taking these allegations and all reasonable inferences therefrom as true, plaintiff adequately pleaded a FEPA claim. Although the court ultimately dismissed plaintiffs FEPA claim against the State, concluding that the State was not plaintiffs employer as defined by 21 V.S.A. § 495, it did so prematurely and with disregard for the amendments in plaintiffs proposed complaint. The standards for establishing a prima facie case under FEPA are the same as those required by Title VII of the Civil Rights Act of 1964. Robertson v. Mylan Labs., Inc.,
¶ 10. Finally, the trial court rejected plaintiff’s amendment adding an intentional infliction of emotional distress claim, reasoning that plaintiff had failed to allege any facts that could support such a claim against the State. An IIED claim can be sustained only where the plaintiff demonstrates “outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct.” Boulton v. CLD Consulting Eng’rs, Inc.,
¶ 11. Because we have analyzed the claims in plaintiffs amended complaint under the 12(b)(6) standard for dismissal for failure to state a claim, we need not repeat that analysis with regard to the trial court’s decision to dismiss all claims against the State. The amended complaint adequately stated a § 1983 claim against defendant Reiser and a FEPA claim against the State, and therefore, we reverse the court’s decision with respect to those claims. As to any IIED claim against the State, it did not survive plaintiffs motion to amend the complaint.
¶ 12. As a final matter, we respond to the dissent’s concerns. The dissent reasons that plaintiffs statement regarding Reiser’s “personal involvement” in her termination is a legal conclusion, rather than a factual allegation, and is thereby insufficient to make out the elements of a § 1983 claim. This reasoning, however, is in direct conflict with Vermont Rule of Civil Procedure 84, which incorporates appended forms as “sufficient under the rules” and “intended to indicate the simplicity and brevity of statement which the rules contemplate.” Among the forms is a complaint for negligence which provides the following illustration:
1. On June 1, 1970, in a public highway called Church Street in Burlington, Vermont, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.
2. As a result plaintiff was thrown down and had plaintiffs leg broken and was otherwise injured, was prevented from transacting plaintiff’s business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars.
Where plaintiff demands judgment against defendant in the sum of ten thousand dollars and costs.
V.R.C.P. Form 9. By the dissent’s reasoning, this complaint, incorporated into our rules of civil procedure, would be insufficient
¶ 13. Furthermore, the beauty of our rules of civil procedure is that they strike a fair balance, at the early stages of litigation, between encouraging valid, but as yet underdeveloped, causes of action and discouraging baseless or legally insufficient ones. The complaint is a bare bones statement that merely provides the defendant with notice of the claims against it. See Lane v. Town of Grafton,
¶ 14. Here, the State attempted to force a merits determination in the early stages of litigation. It used the wrong procedural vehicle for doing so. A motion to dismiss serves to identify an insufficient cause of action, like the IIED claim here, where essential elements are not alleged. There were other procedural tools at the State’s disposal, however, that it chose not to employ. In a motion for summary judgment, the defendant can present facts establishing that the plaintiff cannot prevail on its claims, so that the court may dismiss the case with confidence if the plaintiff fails to show that those facts are either disputed or have no force with respect to the legal claims. See V.R.C.P. 56. If, as the State alleges, plaintiff’s claims are not supported by the facts, the State easily could have moved for summary judgment at little expense after conducting limited discovery — namely, taking plaintiffs deposition. See V.R.C.P. 26(f) (authorizing court on its own motion or on motion by either party to set limitations on discovery); Iqbal,
Reversed and remanded.
Notes
The dissent argues that the United States Supreme Court’s recent decision in Bell Atlantic Corp. v. Twombly,
Dissenting Opinion
¶ 15. dissenting in part. Surely plaintiff does not depend on pretrial discovery to discover her own disability. Yet plaintiff fails, after two tries, to allege what disables her, why she should be entitled to a workplace accommodation for an affliction she does not identify, or why it was unreasonable not to accommodate her unknown disability. Nevertheless, the majority endorses this empty pleading, along with the rest of plaintiffs FEPA and § 1983 complaints equally devoid of any alleged grounds for such claims, as exemplifying the “beauty” of “underdeveloped” pleading supposedly allowed under our rules of civil procedure. Ante, ¶ 13. Not so enraptured by plaintiffs factless complaint, I respectfully dissent from the majority’s acceptance of claims based on labels in lieu of substance.
¶ 16. Plaintiffs amended complaint on these counts is not just underdeveloped, but is so starved for substantive allegations that it barely amounts to a spectre. Plaintiff shrouds her complaint with litigation labels, or catch-phrases, such as “wrongful termination” and “qualified disability,” and a defendant’s “personal involvement” and failure to make “reasonable accommodation,” but sets forth no facts leading to her conclusions. Like plaintiffs IIED complaint, correctly found here to lack a description of facts necessary to state the claim, ante, ¶ 10, her FEPA and civil rights complaints are nothing more than wishful thinking that fail to satisfy even the minimal requirement of Rule 8(a) to present “a statement of circumstances, occurrences, and events in support of the claim being presented.” 5 C. Wright & A. Miller, Federal Practice & Procedure § 1215, at 194 (3d ed. 2004).
¶ 17. The majority misperceives this criticism of the pleadings as a premature rush to summary judgment on lack of evidence, but the problem with plaintiffs pleading is not evidentiary. Rather,
¶ 18. Instead of plaintiffs conclusions, our rules require “a short and plain statement of the claim showing that the pleader is entitled to relief.” V.R.C.P. 8(a) (emphasis added). While a party need not provide “a specific and detailed statement of the facts which constitute a cause of action,” he or she must provide “a statement clear enough ‘to give the defendant fair notice of what the plaintiffs claim is and the grounds on which it rests.’ ” Reporter’s Notes, V.R.C.P. 8 (emphasis added) (citing the United States Supreme Court applying the same standard under Federal Rule of Civil Procedure 8(a) in Conley v. Gibson,
¶ 19. Recognizing the degradation in the substance of complaints, the United States Supreme Court recently “retired” this “no set of facts” language, concluding that it had “been questioned, criticized, and explained away long enough.” Bell Atl. Corp. v. Twombly,
¶20. Just as an antitrust complaint in Twombly was properly dismissed when it furnished “no clue” as to the participants in, and the time and location of, an alleged “conspiracy” in restraint of trade,
¶ 21. In Count I of her amended complaint, plaintiff alleged that Ms. Reiser, among others, maliciously and wrongfully terminated her employment in violation of 42 U.S.C. § 1983.
¶ 23. Indeed, we note that even in her brief, plaintiff cannot say how, or even if, Ms. Keiser was personally involved in her termination. According to plaintiff, there is “some indication that Ms. Keiser may have been involved,” and she believes that further
¶ 24. Plaintiff misunderstands the requirements of Rule 8(a). “The need at the pleading stage for allegations plausibly suggesting” that the elements of a claim have been met “reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’ ” Twombly, 550 U.S. at 557,
[The] concept of “the pleading threshold” is critical. The complaint should include “a short and plain statement” of the claim showing that the pleader is entitled to relief, so it need not include evidentiary detail. On the other hand, the price of entry, even to discovery, is for the plaintiff to allege a factual predicate concrete enough to warrant further proceedings, which may be costly and burdensome. Conelusory allegations in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing expedition.
DM Research,
¶25. The decision in DM Research is instructive. In that case, the plaintiffs alleged in their complaint that the two defendants had “conspired” with one another, and they argued that for purposes of a motion to dismiss, the court must accept this allegation as true, however implausible it might be. Id. The court rejected this notion, finding that terms like “conspiracy,” or even “agreement,” were “border-line: they might well be sufficient in conjunction with a more specific allegation — for example, identifying a written agreement or even a basis for inferring a tacit agreement — but a court is not required to accept such terms as a sufficient basis for a complaint.” Id. at 56. Far from being a “technical mouse-trap for an unduly terse plaintiff,” the court explained, the ongoing nature of the litigation process, even at the pleading stage, provides plaintiffs with ample opportunity to
¶ 26. This reasoning applies with equal force here. Plaintiff had several opportunities to allege sufficient facts to support her § 1983 claim. Put on notice about the factual shortcomings of her allegations by defendants’ motion to dismiss, plaintiff failed to remedy her pleading deficiencies, and her conclusory allegations simply do not suffice to state a claim under Rule 8(a). As recently reiterated in Twombly, Rule 8 “still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.”
¶ 27. Plaintiff’s FEPA claim is equally deficient. To establish a claim under FEPA, a plaintiff must allege that she was a qualified disabled individual and that she was discharged because of her disability. See 21 V.S.A. § 495; Lowell v. Int’l Bus. Machs. Corp.,
¶ 28. As with plaintiff’s proposed § 1983 claim, her FEPA claim consists of nothing but conclusions and labels. Such allegations do not provide defendant with notice as to the particular nature of plaintiff’s claim; they merely restate, or attempt to restate, legal elements required for any FEPA claim. Plaintiff does not, or cannot, identify the nature of her alleged disability. Plaintiff is not required to prove that she has a disability to get past a motion to dismiss, but Rule 8(a) still requires that she allege a disability so that the State can formulate a response to her allegation. See Twombly,
¶ 29. Indeed, plaintiff fails to allege any facts at all. She does not describe the reasonable accommodation allegedly asked for, nor does she describe the circumstances of the State’s alleged refusal to accommodate her. Plaintiff similarly fails to state how, why, or when the State allegedly used her disability as the basis — “pretextual” or not — for terminating her. Seeking to respond to such allegations, a defendant “would have little idea where to begin.” Twombly,
¶ 30. Plaintiff further fails to allege any grounds by which to claim that the State was her employer. Indeed, contrary to the
¶ 31. The only other allegations in plaintiff’s amended complaint relevant to her identification of an employer liable to her under FEPA might be her assertions that (1) “Defendant Umbrella claimed Plaintiff was an at-will employee and therefore could be terminated at will”; (2) plaintiff’s direct supervisor was an Umbrella employee; (3) Ms. Reiser “had supervisory and managerial control over Defendant Umbrella’s child care resource center”; and (4) “Defendant State of Vermont Agency of Human Services Department for Children and Families, Child Development Division (‘CDD’) is an agency of the State of Vermont with supervisory and managerial control over Umbrella’s child care resource center.” None of these allegations, taken separately or as a whole, provide a sufficient factual predicate of state employment to support plaintiff’s FEPA claim against the State.
¶ 32. It is unclear how the majority concludes that plaintiff sufficiently alleges that the State was her employer under 21 V.S.A. § 495. Ante, ¶ 9. Assuming, as claimed in the amended complaint, that DCF or its employee had supervisory and managerial control over plaintiff’s Umbrella worksite, those facts simply do not describe an employment relationship between the State and plaintiff. Clearly plaintiff does not allege any hiring or payment by the State, both factors recognized by the majority as threshold elements for establishing an employment relationship. Ante, ¶ 9 (citing United States v. City of New York,
¶ 33. It is no answer to say that plaintiffs claim should survive, regardless of its lack of asserted facts, merely because it does not appear beyond a doubt that there exist no facts or circumstances that plaintiff could prove entitling her to relief under FEPA. Ante, ¶ 8. As pointed out above, this purported standard, borrowed from Conley and since disavowed by its propounding authority in Twombly, was never intended to be a substitute for substantial pleadings. It was for empty pleadings such as plaintiffs that Twombly disowned the “no possible facts” passage in Conley still mistakenly relied on by the majority to sustain plaintiffs complaint. Allowing such complaints, explains Twombly, would simply settle for “Mr. Micawber’s optimism” in place of substance, and “would dispense with any showing of a ‘reasonably founded hope’ ” that a plaintiff would be able to make a case.
¶ 34. Contrary to the expectations of plaintiff and the majority, Rule 8(a) does not purport to offer a passport to pretrial discovery in return for simply claiming the possibility of a cause of action. That evidence exists or might later be discovered from defendant to support plaintiff’s cause of action is immaterial to the question of whether the factual allegations in her complaint were sufficient to state a claim under the rule. Id. at 561,
¶ 35. I would affirm the trial court’s dismissal of all counts, and am authorized to state that Justice Skoglund joins in this dissent.
Having fully considered, and finding futile, the content of plaintiffs amended allegations, the trial court’s refusal to formally accept the amended complaint as filed was immaterial.
Contrary to the majority’s assertion, Twombly is not read to overrule Conley, or to impose a “new and heightened pleading standard.” Cf. ante, ¶ 5 n.l. Nor must Twombly be read to interject a “flexible ‘plausibility standard’ ” of amplified factual pleadings for some complaints, but not for others, as interpreted in Iqbal v. Hasty, cited by the majority as an example of uncertainty in the meaning of Twombly. See Iqbal,
Plaintiff originally alleged that she was an at-will employee of Umbrella and that Umbrella was a “state actor” for purposes of 42 U.S.C. § 1983 by virtue of being subject to state regulation, but concedes in her brief that state regulation does not a state actor make. In her amended complaint, plaintiff no longer claimed to be an employee of Umbrella, although she did not identify any other employer.
The majority’s reference to Rule of Civil Procedure Form 9, ante, ¶ 12, as a rule-sanctioned example of adequate notice pleading is facially inapposite to plaintiff’s pleadings. Form 9 expressly complains that a defendant carelessly drove a car into a pedestrian. No such clear declaration of wrongdoing appears in the instant complaint where plaintiff generally claims, but refuses to describe, “personal involvement” by Ms. Keiser in her termination. “Involvement” could suppose, among other inferences, that Ms. Keiser somehow ordered, or authoritatively advised or approved the firing, some of which conduct might, but not necessarily, be culpable. “Involvement” could just as easily be that Ms. Keiser was merely told about, was advised, or suggested or even agreed that plaintiff should be fired, none of which, without more, would necessarily render the defendant liable. Plaintiff fails to plead any wrongful act on Ms. Keiser’s part.
To the extent that plaintiff seeks to challenge the dismissal of her § 1983 claim against the State or DCF’s Child Development Division (CDD), she waived such arguments by failing to raise them on appeal. We note, however, that it is well settled that the State is not a “person” subject to suit under § 1983, and that to the extent plaintiff sought damages from the CDD due to Ms. Reiser’s alleged actions, “respondeat superior cannot form the basis for a § 1983 claim.” Hemmings v. Gorczyk,
The statute speaks of a “qualified disabled individual,” 21 V.S.A. § 495, and it appears that this is what plaintiff is referencing when she refers to her “qualified disability.”
Exemplary of Wilkins Micawber’s manic optimism in Charles Dickens’ novel “David Copperfield,” he famously declares in Chapter 52: “Now, welcome poverty! . . . Welcome misery, welcome houselessness, welcome hunger, rags, tempest, and beggary! Mutual confidence will sustain us to the end!” Applying the actual pleading requirements of Rule 8(a), rather than the majority’s dilution, plaintiffs
It is also noteworthy that the majority’s view effectively undoes more than Rule 8(a). Since no informed answer can ever be filed in response to complaints like plaintiff’s FEPA and § 1983 claims, denials need be merely automatic. Automatic denial obviates the need for much of Rule 8(b) that promotes answers to “meet the substance of the averments” and particularly respond to particular averments, since the need for particularity in a complaint is read out of Rule 8(a) by the majority. No longer recognizing Rule 12(b)(6) motions to dismiss except for legal impossibility, and not for inadequate grounds, the majority justifies denials in all instances as “without knowledge or information sufficient to form a belief as to the truth of an averment.” V.R.C.P. 8(b). What had expressly been a defendant’s option under Rule 12(e) to request a more definite statement in response to a vague complaint, the majority now mandates as a remedy instead of a motion to dismiss. The imagined remedy of a more definite statement is, of course, rendered a nullity by the majority’s holding that a vaporific complaint, like plaintiffs, is already definite enough. Thus, the majority sends Rule 12(e) to join its companions 8(a), 8(b) and 12(b)(6) in the repository of written, but no longer observed, rules of civil procedure.