JOHN DOE v. SAMFORD UNIVERSITY, MALLORY KRUNTORAD, ED.D. TIM S. HEBSON
No. 21-12592
United States Court of Appeals for the Eleventh Circuit
March 24, 2022
D.C. Docket No. 2:21-cv-00871-ACA
[PUBLISH]
Appeal from the United States District Court for the Northern District of Alabama
JOHN DOE v. SAMFORD UNIVERSITY, MALLORY KRUNTORAD, Ed.D. TIM S. HEBSON
No. 21-12840
Appeal from the United States District Court for the Northern District of Alabama
Before WILLIAM PRYOR, Chief Judge, JORDAN, Circuit Judge, and
WILLIAM PRYOR, Chief Judge:
This consolidated appeal presents two questions: first, whether John Doe, a pseudonymous student at Samford University, has stated a claim against the university
I. BACKGROUND
Because one of the consolidated appeals “is from the dismissal of a complaint, we accept the allegations of the complaint as true. We recount the facts as alleged in the complaint. And we construe them in the light most favorable to the plaintiff.” Darrisaw v. Pa. Higher Educ. Assistance Agency, 949 F.3d 1302, 1303 (11th Cir. 2020) (citation omitted).
John Doe, the pseudonymous plaintiff, was a senior at Samford University, a private Christian university. On the evening of Halloween 2020, he attended a party located at an off-campus apartment. He brought with him two pitchers of an alcoholic beverage he concocted. “[T]he drink was, at most, seven percent . . . alcohol.”
Jane Roe, another pseudonymous student, arrived at the apartment sometime later. Doe and Roe had never met before. After trying some of the beverage Doe brought to the party, Roe struck up a conversation with him. “Jane Roe commented to [Doe] about the loud noise level at the [p]arty. [Doe] suggested that they go to [a] . . . [f]riend‘s [a]partment [nearby] where it was quieter so they could talk.” Roe agreed and the two left together. “Jane Roe did not appear intoxicated” and “[n]o one stopped [her] from leaving the [p]arty with [Doe].” “From the time Jane Roe met [Doe] to the time she left the [p]arty with [him], approximately twelve minutes passed.”
At the friend‘s apartment, after engaging in small talk, “Jane Roe asked [Doe] if he wanted to hook up.” “John asked Jane if she was sure she wanted to engage in sexual activity with him, and she confirmed that she did.” “Several times before and during their consensual sexual intercourse, [Doe] asked Jane Roe for her consent, and Jane Roe expressed consent.” “At all times during the consensual sexual intercourse, Jane Roe had control over her speech and bodily movements.” And “[a]t all times during the consensual sexual intercourse,” Doe believed, based on “Jane Roe‘s words and actions,” that Roe “understood the who, what, where, when, why, and/or how of the sexual interaction.” “After the sexual intercourse ended, Jane Roe re-dressed on her own, left the [f]riend‘s [a]partment, descended a staircase, and returned to the [p]arty, all without any assistance from [Doe].”
“Upon her return to the [p]arty, Jane Roe told [one witness] that she was sexually assaulted by [Doe].” Roe then walked outside. “Jane Roe‘s sister . . . arrived at the outside location where Jane was and asked what was going on.” By then, Doe had also returned to the party, and he went outside at the request of another partygoer. “A female outside asked [Doe] what he put in Jane Roe‘s drink. [Doe] responded that he put everything in her drink.” Doe states that he “mean[t] that he [had] made the [alcoholic beverage].”
After “Jane Roe‘s sister . . . took [Roe] back to [Roe]‘s dorm,” Roe stated that Doe “raped her, gave her hickeys, and bit her lip and breast.” The sister “took photos of Jane‘s alleged injuries.” Roe filed a police report against Doe the next day. “Jane‘s blood was drawn to test for the presence
Four days later, “Jane Roe filed a Title IX complaint . . . against [Doe,] alleging that [Doe]” had violated the university‘s Title IX policy. Specifically, “Jane Roe alleged that [Doe] had raped her on the night of October 31, 2020, when she was incapacitated.”
Doe asserts that the initial steps of the investigation were “[i]n clear violation of [the university‘s Title IX] [p]olicy.” The policy provides that “the [university‘s] Title IX Coordinator must provide a written notice of allegations [of sexual misconduct] to the parties.” It also provides that, “[w]hen the Title IX Coordinator receives a formal complaint of [s]exual [m]isconduct, the Title IX Coordinator will attempt to schedule an initial meeting with the respondent.” But, according to Doe, Tim Hebson, the Title IX Coordinator, “did not provide [Doe] with a written notice of the allegations made against him by Jane Roe before [he] was interviewed.” And Hebson “never conducted an initial meeting with [Doe] to notify him of Jane Roe‘s complaint and the alleged policy violations in issue.” Doe does not mention whether he received a written notice or met with Hebson at a later date.
Hebson “assigned [Mallory] Kruntorad as the Title IX Investigator to investigate the allegations of [Roe‘s] [c]omplaint.” This investigation was Kruntorad‘s “first Title IX investigation.” Kruntorad “received little to no training about conducting unbiased and impartial Title IX investigations,” and “lacked the experience necessary to conduct a Title IX investigation on her own in accordance with the [p]olicy.” After emailing Doe about the investigation in early November, Kruntorad “met with [Doe] to take his statement” in mid-November. “Kruntorad never advised [Doe] of the specifics of Jane Roe‘s allegations against him aside from a claim that [he] raped Jane Roe.”
Kruntorad interviewed Roe several days later. “Jane Roe told . . . Kruntorad that she was drugged at the [p]arty and could not consent to the sexual interaction with [Doe].” Roe also stated “that when [Doe] got her a drink at the party, [Doe]‘s back was to her and she ‘could not see what was being put in it.‘” And she stated that “she started to feel ‘fuzzy’ when walking to the [f]riend‘s [a]partment with [Doe].” On an audio recording of Kruntorad‘s interview with Jane Roe, “Kruntorad can be heard stating, ‘I still think, regardless, you couldn‘t give consent.‘”
Doe asserts that the interview was deficient because Kruntorad failed to ask Roe certain questions. Kruntorad “failed to question Jane Roe about whether Jane Roe consumed any alcoholic beverages prior to the [p]arty.” She “never questioned Jane Roe about whether she obtained hickeys from sexual activity on another night.” And she did not “conduct[] follow-up interviews with Jane Roe or [Doe] during the course of the investigation.”
At the end of an eleven-day-long investigation, Kruntorad wrote and provided to Doe and Roe a preliminary investigation report. Doe asserts that it “contained highly prejudicial hearsay statements purportedly made by law enforcement about [his] alleged attack of [Roe] and [his] suspected prior sexual history,” and “highly prejudicial and inflammatory statements about [Doe]‘s mental health.” Still, one witness had “expressed disbelief that [Roe] was drugged.” The same witness had “reported that Jane Roe‘s sister . . . stated that Jane Roe may have received the hickeys on a prior evening.” That witness had also reported that “Jane Roe told [a third party] that she consented to sex with [Doe].” But “several witnesses . . . attested to [Roe‘s] incapacitation.” And Kruntorad “found
Doe and Roe both responded to the report, as the Title IX policy permits. Roe reiterated “that she believed she was drugged by [Doe] and that she never got physically sick from excess alcohol.” And she “was critical of [the witness] who expressed disbelief that she was drugged.” Doe “submitted evidence about his [Attention-Deficit/Hyperactivity Disorder] and [Pervasive Developmental Disorder-Not Otherwise Specified], which is high functioning autism.” “This evidence was submitted to explain [Doe]‘s rigid communication style.” According to the complaint, a revised report “found [Doe] to be less credible than Jane Roe based on statements that [Doe] made about immaterial facts.”
Separately, Doe lodged objections with Hebson about the investigation. Doe contested the jurisdiction of the university over the complaint. He “questioned the incompleteness and lack of impartiality of [the] investigation.” He “express[ed] concern” that Kruntorad failed to do more “to uncover exculpatory evidence.” He “requested the full names of all witnesses interviewed in the investigation,” “the photographs of Jane Roe‘s alleged injuries,” and “Jane Roe‘s medical . . . records.” He “objected to the inclusion of the recordings in the materials to be provided to the Title IX [h]earing panel” because the report “did not identify . . . the names of the speakers heard on the recording.” And he asked that the interview summaries of statements made by parties “who would not be testifying at the hearing be redacted from the investigative report.” The Title IX policy does not appear to require the disclosure of the names of witnesses, but it does prohibit the hearing panel from “rely[ing] on any statement of [a] party or witness” who does not submit to cross-examination at the live hearing.
Doe was not satisfied with Hebson‘s response. “Hebson refused to provide the names of the witnesses interviewed by . . . Kruntorad,” and did not address Doe‘s request for access to photographs of Roe‘s injuries and Roe‘s medical records. Hebson also told Doe that “decisions related to presented information will be decided upon at the hearing,” a statement that is consistent with a provision in the policy that the power to determine the admissibility of evidence resides with the hearing panel.
A live hearing took place before a hearing panel over two days in early 2021. Roe and her sister testified. “[F]or the first time, Jane Roe claimed that she consumed alcohol prior to arriving at the [p]arty.” And “for the first time, Jane Roe suggested that her incapacitation was the result of drinking too much alcohol, rather than being drugged by [Doe].” Roe‘s sister testified about “purported injuries that Jane Roe sustained” and “testified that Jane Roe passed out and had no pulse at times outside of the [p]arty.” Doe does not mention what evidence he presented or whether he testified, but he alleges that the hearing panel “refused to hear testimony from” the individual who had written a report on Doe‘s behalf about Doe‘s autism. He also alleges that “the Title IX Hearing Panel received an un-redacted copy of the Title IX [i]nvestigation [r]eport” that contained statements from non-testifying witnesses.
The hearing panel issued a notice of determination “finding [Doe] responsible for engaging in prohibited conduct” and suspending him for five years. Doe does not describe the notice of determination in much detail, but he alleges that the “[p]anel found that Jane Roe‘s ability to consent to intercourse with John was impaired by
Doe appealed the notice of determination to a university appeal panel. Doe argued that there was “a biased, impartial, [sic] and prejudicial investigation process,” and that there were “several procedural irregularities.” He also submitted “newly discovered evidence“—a letter from a doctor “opin[ing] that many of Jane Roe‘s claims were not medically supportable” because “she could not pass out and then awaken and be able to text or have lucid conversations with other students, and [because] [Roe]‘s explanation about bruising on her chest could be attributed to prior trauma to the skin.”
The appeal panel dismissed Doe‘s appeal. The “[a]ppeal [p]anel conceded that there were procedural irregularities during the investigation process that were inconsistent with the [p]olicy, largely attributing these [irregularities] to ‘inexperience’ and ‘adjustment’ to a new policy.” The appeal panel “did not address why [the doctor‘s] report” would not “affect the outcome of the matter.” The appeal panel “determined the [proffered] testimony [regarding Doe‘s autism] was not relevant but failed to explain the basis of this determination.” And the appeal panel “acknowledged that the [h]earing [p]anel received a copy of the full Title IX [i]nvestigative [r]eport but found that those statements were not considered by the [h]earing [p]anel.”
Doe sued the university, Kruntorad, and Hebson. The complaint alleges that the university violated Title IX,
Immediately after filing his complaint, Doe filed a motion to proceed under a pseudonym. The university “d[id] not object to [the motion], [and] contend[ed]” that the district court should “seal the record in this case pending the opportunity for counsel to confer regarding entry of an appropriate protective order.” The district court denied the motion to seal the entire record and denied Doe‘s request to proceed under a pseudonym. Doe appealed the order. And the district court stayed the order pending appeal.
The university moved to dismiss for failure to state a claim. See
The district court granted the motion to dismiss. It agreed with the university that Doe‘s theories of harm were at odds with the text of Title IX, but it “analyze[d] his claim[] under those theories” anyway because “Doe framed both his complaint and his argument in response to the motion to dismiss under [those] theories.” The district court concluded that Doe had “adequately allege[d] that he was innocent and wrongly found to have committed the offense.” But it explained that the complaint fell short under the erroneous outcome theory because the allegations, taken together, did not “support[] a reasonable inference that anti-male bias caused the erroneous outcome.”
The Title IX claim fared no better under the selective enforcement theory. The district court explained that “Doe‘s statements that a female would be treated more favorably than he was treated are utterly conclusory.” And “[e]ven taking all of John Doe‘s non-conclusory allegations as true, he cannot show that [the university] treats sexual assault complaints against female respondents any differently than it treats sexual assault complaints against male respondents if he cannot point to a female respondent.”
The district court dismissed the Title IX claim without prejudice. And it declined to exercise supplemental jurisdiction over the remaining claims, which were all premised on violations of state law. It dismissed those claims without prejudice, too. Doe timely appealed and we consolidated his two appeals.
II. STANDARD OF REVIEW
“We review de novo the dismissal of a complaint under
III. DISCUSSION
We divide our discussion in two parts. We first explain why Doe failed to state a claim for a violation of Title IX. Second, we explain why the appeal from the order denying the motion to proceed under a pseudonym is moot.
A. Doe Failed to State a Claim for a Violation of Title IX.
Familiar principles govern a motion to dismiss for failure to state a claim. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Because the presumption of truth applies only to facts, the court may disregard “labels and conclusions . . . couched as . . . factual allegation[s].” Id. (internal quotation marks omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Factual allegations that are merely consistent with a defendant‘s liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012)
Before applying these principles to Doe‘s complaint, we address a threshold question: the appropriate framework for establishing a violation of Title IX. Title IX provides that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Doe advances two tests for establishing liability for a university disciplinary proceeding, both derived from Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994)—the “erroneous outcome” test and the “selective enforcement” test. “Under [the erroneous outcome] test, a student must show both that he was ‘innocent and wrongly found to have committed an offense’ and that there is ‘a causal connection between the flawed outcome and [sex] bias.‘” Valencia Coll., 903 F.3d at 1236 (quoting Yusuf, 35 F.3d at 715). Under the selective enforcement test, a student must allege and ultimately prove “that, regardless of the student‘s guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student‘s [sex].” Yusuf, 35 F.3d at 715.
The university, by contrast, urges the Court to apply a test first developed by the Seventh Circuit: “do the alleged facts, if true, raise a plausible inference that the university discriminated against [the plaintiff] ‘on the basis of sex‘?” Doe v. Purdue Univ., 928 F.3d 652, 667-68 (7th Cir. 2019). This test has been adopted by at least a plurality of our sister circuits. See, e.g., Doe v. Univ. of Scis., 961 F.3d 203, 209 (3d Cir. 2020); Sheppard v. Visitors of Va. State Univ., 993 F.3d 230, 236 (4th Cir. 2021); Doe v. Univ. of Ark. - Fayetteville, 974 F.3d 858, 864-65 (8th Cir. 2020); Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 947 (9th Cir. 2020); see also Doe v. Univ. of Denver, 1 F.4th 822, 830 (10th Cir. 2021) (agreeing with this approach and modifying it to suit review of a motion for summary judgment).
The Seventh Circuit test hews more closely to “the text of the statute and binding precedent” than does Yusuf. Cf. Ring v. Boca Ciega Yacht Club Inc., 4 F.4th 1149, 1158 (11th Cir. 2021) (in the context of another anti-discrimination statute, preferring a text-based rule). It mirrors the statutory prohibition of adverse action “on the basis of sex.”
“We agree with the Seventh[] Circuit‘s approach,” with one modification, “and see no need to deviate from the text of Title IX.” Sheppard, 993 F.3d at 236. The Seventh Circuit test asks whether the facts “raise a plausible inference” of a Title IX violation, Purdue, 928 F.3d at 668 (emphasis added). And, to be sure, the ultimate inquiry is the “facial plausibility” of the complaint. But facial plausibility is determined by asking whether the facts alleged “allow[] the court to draw the reasonable inference that the defendant is liable.” Iqbal, 556 U.S. at 678 (emphasis added). We ask whether the alleged facts, if true, permit a reasonable inference that the university discriminated against Doe on the basis of sex.
1. The Alleged Facts Do Not Permit a Reasonable Inference that the University Discriminated against Doe on the Basis of Sex.
Doe contends that he has pleaded sufficient facts to permit a reasonable inference of sex discrimination, but we disagree. He asserts that the inference is warranted because of the allegations about procedural irregularities at the investigation and hearing stages, “public pressure[] to comply with Title IX,” public statements by university officials, and “statistics revealing numerous allegations against male students” raise a reasonable inference of sex discrimination. But, viewed in isolation or collectively, these allegations do not make it plausible that Doe was suspended on the basis of sex. We address each set of allegations in turn.
a. The Alleged Procedural Irregularities Do Not Make Sex Discrimination Plausible.
Doe‘s argument that “gross procedural deviations” permit a reasonable inference of sex discrimination fails for two reasons. First, some of the alleged deviations are either conclusory or incomplete. Second, the remaining allegations do not permit a reasonable inference of sex discrimination.
Some of Doe‘s allegations of procedural irregularities are assertions unsupported by facts. For example, Doe alleges that “[t]he [i]nvestigation [r]eport contained highly prejudicial hearsay statements purportedly made by law enforcement about [Doe]‘s alleged attack of [Roe] and [Doe]‘s suspected prior sexual history.” And he alleges that the report also “contained highly prejudicial and inflammatory statements about John‘s mental health.” But Doe‘s allegations that the statements were “prejudicial” and “inflammatory” are “not entitled to the assumption
Doe also counts among the procedural irregularities the decision of “[t]he appellate board . . . [to] reject[] all medical evidence showing the falsity of [Roe‘s] claims,” but Doe does not allege sufficient facts for the Court to suppose that this decision was improper. Under the university‘s Title IX policy, “new evidence” may supply the basis for an appeal if that evidence “was not reasonably available at the time of the determination regarding responsibility” and “could affect the outcome of the matter.” Doe has not alleged that the evidence he submitted to the appeal board—a letter from a doctor—satisfies these requirements. The letter “opined . . . that [Roe] could not pass out and then awaken and be able to text or have lucid conversations[,] . . . and that [Roe‘s] explanation about bruising on her chest could be attributed to prior trauma to the skin.” But Doe has not alleged that this evidence “was not reasonably available at the time of the determination regarding responsibility.” For example, he did not allege that he was unaware, prior to the hearing, of the evidence concerning Roe‘s injuries or her sister‘s statement about Roe‘s lapse of consciousness. Doe alleges only that “[t]he [a]ppeal [d]ecision did not address why [the letter] did not rise to the level that would affect the outcome of the matter“—omitting any discussion of the reasonable availability of the letter and of the appeal board‘s consideration of that requirement.
Doe‘s remaining allegations of procedural irregularities do not support a reasonable inference that the university acted “on the basis of sex.” See
short of the line between possibility and plausibility.” See id. at 557. And Doe‘s “bare assertion” that the procedural irregularities are attributable to his sex does not make his speculation plausible. See id. at 555–56; Austin v. Univ. of Or., 925 F.3d 1133, 1138 (9th Cir. 2019) (explaining that the plaintiffs had failed to state a Title IX claim “because the [plaintiffs] d[id] not articulate any basis to discern that the administration or outcomes of the disciplinary proceedings were flawed due to the [plaintiffs]’ sex”); Columbia Coll., 933 F.3d at 856 (explaining that alleged restrictions on a respondent‘s “access to documents relevant to the investigation” did not “demonstrate[] an anti-male bias” in part because “th[e] allegation [was] divorced from [sex]—Doe d[id] not allege that females accused of sexual assault were allowed to review materials or that only female victims were allowed to review them”); Yusuf, 35 F.3d at 715 (“[A]llegations of a procedurally or otherwise flawed proceeding ... combined with a conclusory allegation of [sex] discrimination [are] not sufficient to survive a motion to dismiss.”).
Doe‘s allegations permit “obvious alternative explanations [that] suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental, 605 F.3d at 1290 (alteration adopted) (internal quotation marks omitted). Those lawful explanations include ineptitude, inexperience, and pro-complainant bias. For example, Doe seeks an inference of sex discrimination from the university‘s failure to redact the portions of the investigative report containing statements from witnesses who did not testify at the hearing, as the Title IX policy requires. But this failure is “just as much”—if not more—“in line,” see Twombly, 550 U.S. at 554, with the appeal board‘s explanation that the hearing panel was still adjusting to the three-month-old Title IX policy. See
Similarly, the allegations about deficiencies in the investigation are more in line with the appeal board‘s explanation that the deficiencies are attributable to the investigator‘s “inexperience.” Doe alleges that “Jane Roe‘s complaint against [him] was [Kruntorad‘s] first Title IX investigation.” He alleges that, “prior to leading the investigation of the [Title IX] [c]omplaint, [Kruntorad] received little to no training about conducting ... Title IX investigations.” And he alleges that Kruntorad “lacked the experience necessary to conduct a Title IX investigation on her own in accordance with the [p]olicy.” So, ineptitude—a sex-neutral explanation that does not violate Title IX, see Davis, 526 U.S. at 642—is the likelier, more “obvious ... explanation” for the investigator‘s departures from the policy, see Twombly, 550 U.S. at 567.
Moreover, even if evidence of an investigation and hearing that are “inconsistent with ordinary practice ... may give rise to an inference of bias,” Univ. of Ark., 974 F.3d at 865, there is no reason to suppose that this bias concerned Doe‘s sex. To the contrary, Doe states throughout his complaint that the university favors all complainants and disfavors all respondents in Title IX proceedings. For example, he argues that Samford and other universities have “institutionize[d] unfair procedures that lead to unfair and unreasonable punishments of students accused of misconduct.” (Emphasis added.) He alleges that Samford “announced to its constituency”
Doe counters that discrimination on the basis of sex may be inferred from the “arguably inexplicable” outcome of the hearing. See Doe v. Oberlin Coll., 963 F.3d 580, 588 (6th Cir. 2020). Under this theory, “the merits of the decision itself ... can support an inference of sex bias” “when the degree of doubt” in “the accuracy of the disciplinary proceeding‘s outcome ... passes from articulable to grave.” Id. (internal quotation marks omitted); see also id. (drawing that inference because the hearing panel‘s decision, as alleged, was without an “apparent basis”); Univ. of Ark., 974 F.3d at 865 (holding that the plaintiff stated a Title IX claim in part because “the allegations in the complaint support[ed] an inference that the hearing panel reached an outcome that was against the substantial weight of the evidence”). Doe does not explain why this inference would be “reasonable,” see Iqbal, 556 U.S. at 678, but presumably the rationale is that the more outrageous the decision is, the less likely it is that any errors were made in good faith. And when the erroneous decision ceases to be consistent with good-faith mistake, the explanation of improper bias becomes sufficiently likely to cross “the line between possibility and plausibility.” See Twombly, 550 U.S. at 557. Doe asserts that he is entitled to this inference because “the underlying investigation was completed in just ten ... days,” the investigator “failed to even attempt to gather potentially exculpatory evidence,” and “[n]either [Roe] nor the hearing panel commented on the flat contradiction between [Roe]‘s theories of intoxication.” We disagree.
Doe‘s assertions are either irrelevant to his theory or unsupported by the factual allegations in his complaint. The duration and quality of the investigation are irrelevant because they relate to the pre-hearing procedure, not “the merits of the decision itself.” Oberlin, 963 F.3d at 588. And the complaint establishes that the investigator did in fact uncover and disclose to Doe “potentially exculpatory evidence,” including the statement of a witness “who expressed disbelief that [Roe] was drugged,” “reported” that “Roe told [a third party] that she consented to sex with [Doe],” and “reported that Jane Roe‘s sister ... stated that Jane Roe may have received the hickeys on a prior evening.”
Doe‘s allegations also do not cast “grave” doubt on “the merits of the decision” of the university, see Oberlin, 963 F.3d at 588, that a preponderance of the evidence supported a finding of responsibility. According to the complaint, Roe testified “that she consumed alcohol prior to arriving at the [p]arty,” and she told the investigator that “she started to feel ‘fuzzy’ when walking to the [f]riend‘s [a]partment with [Doe].” Roe told others immediately after the sexual encounter “that she was sexually assaulted by [Doe],” and that he “bit her lip and breast.” Doe does not dispute that, after the incident, there was “bruising on [Roe‘s] chest.” And “several
One uncited portion of the complaint alleges that the hearing panel made no mention of Doe‘s inconsistencies in the notice of determination, but this allegation does not alter our conclusion. We regularly permit factfinders to make unstated but implicit credibility determinations in more formal settings than school disciplinary hearings, such as in criminal proceedings. See, e.g., United States v. Walker, 799 F.3d 1361, 1363 (11th Cir. 2015) (on review of the denial of a motion to suppress evidence, explaining that we “give substantial deference to the factfinder‘s credibility determinations, both explicit and implicit” (internal quotation marks omitted)). We cannot hold the hearing panel to a higher standard than we hold district courts. See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 88 (1978) (“A school is an academic institution, not a courtroom or administrative hearing room.”).
b. The Alleged Public Pressure and Public Statements Do Not Make Sex Discrimination Plausible.
Doe next argues that the complaint contains other facts from which sex discrimination may reasonably be inferred. In particular, he mentions an announcement by the university in 2019 that, during “an initial assessment” of a Title IX complaint, “the well-being of the complainant is paramount”; that the university “promoted an ‘It‘s on Us Initiative’ tout[ing] [that] ‘every 21 hours there is a rape on an American college campus‘”; and that the university “was subjected to ... pressure” from federal regulators “to comply with Title IX and appear tough on sexual assault.” Doe contends that these allegations make plausible his belief that the university yielded to “public pressures to ... appear tough on sexual assault” by discriminating on the basis of sex.
Again, Doe is mistaken. As already explained, the allegations in the complaint about the university‘s public statements at most support a reasonable inference of pro-complainant bias, not pro-female bias. And the assertion that public pressure led the university to discriminate on the basis of sex is not supported by facts.
Doe makes a passing reference in the introductory section of his complaint to the so-called “Dear Colleague Letter” issued by the United States Department of Education in 2011. That letter “instructed universities on how to investigate and resolve complaints of sexual misconduct under Title IX.” Doe asserts that “[e]ducational institutions ... continue to overreact to the threat of federal investigations, sanctions, and lawsuits, in part by discriminating against male students on the basis of their sex.”
Doe concedes that the Department of Education “formally rescinded the 2011 Dear Colleague Letter on September 22, 2017,” long before Doe‘s hearing. And it is undisputed that the Department promulgated new regulations that require greater
c. The Clery Statistics Do Not Change the Plausibility of the Title IX Claim.
The allegations about the university‘s Clery report do not assist Doe in stating a Title IX claim because the contents of the report are “factually neutral.” See Twombly, 550 U.S. at 557 n.5. In his complaint, Doe alleges that that “upon review of [the university‘s] Clery statistics it appears that there have been at least seven reported rapes and nine reported cases of fondling”; and that, “[u]pon information and belief,” “all” “the accused students were ... males.” But, as the district court explained, “[t]he Clery [r]eport provides statistics of [on-campus] crimes reported to [Samford‘s Department of Public Safety and Emergency Management], local law enforcement agencies, and Campus Security Authorities.” (Internal quotation marks omitted.) “The report does not speak to the sex of the person reporting the offense, the sex of the person accused of the offense, whether any school disciplinary proceedings occurred as a result of the report, or what the result of the school disciplinary proceedings was.” Assuming—as we must—that Doe‘s “information and belief” allegation is truthful, nothing in the Clery report supports an inference that the university opened a single investigation into one of those reported accusations, much less that the university treated a male respondent worse than it treated a female respondent or female accuser.
To be clear, our conclusion that Doe has failed to state a claim rests on an assessment of the plausibility of sex discrimination, and we “do[] not impose a probability requirement.” See Twombly, 550 U.S. at 556. Doe‘s assertion of sex discrimination is implausible because some allegations “are no more than conclusions, [and] are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Other allegations “are merely consistent with [the university‘s] liability, so they stop[] short of the line between possibility and plausibility of entitlement to relief.” See id. at 678 (internal quotation marks omitted). Still other allegations establish “more likely explanations” for the university‘s conduct, including inexperience, ineptitude, and sex-neutral pro-complainant bias. See id. at 681. And “[a]s between th[ose] obvious alternative explanation[s] for the [university‘s conduct], and the purposeful, invidious discrimination [Doe] asks us to infer, [sex] discrimination is not a plausible conclusion.” See id. at 682 (citation and internal quotation marks omitted).
2. The Title IX Claim Also Fails Under the Yusuf Tests.
Because the two Yusuf tests are no more than fact-specific applications of the Seventh Circuit test, see Purdue, 928 F.3d at 667, it follows from Doe‘s failure to satisfy the latter that Doe has failed to satisfy the former as well. Doe has not
Nor has Doe satisfied the selective enforcement test. To state a claim under that test, a plaintiff must plausibly allege “an inconsistency” between his treatment by the university and the university‘s treatment of a similarly situated member of the other sex. See id. at 716. Doe relies on the Clery report for that purpose, but that report does not contain sufficient information to identify a comparator and determine whether “the severity of the penalty and/or the decision to initiate the proceeding was affected by the student‘s [sex].” See id. at 715. “Without nonconclusory allegations that the male students were treated any differently than similarly situated female students based on sex, the selective enforcement theory fails.” Austin, 925 F.3d at 1138.
B. The Appeal from the Denial of the Motion To Proceed under a Pseudonym is Moot.
Our affirmance of the dismissal of the Title IX claim renders moot the appeal from the denial of the motion to proceed under a pseudonym. Because Doe has not argued that the district court erred by declining to exercise supplemental jurisdiction after dismissing the Title IX claim, he has forfeited any such argument. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). And with no litigation remaining in the district court, we are unable to “give [Doe] meaningful relief” with respect to the appeal from the denial of the motion to proceed under a pseudonym. See Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009) (internal quotation marks omitted). That appeal is moot.
IV. CONCLUSION
We AFFIRM the judgment in favor of the university. We DISMISS AS MOOT the appeal from the denial of the motion to proceed under a pseudonym.
JORDAN, Circuit Judge, concurring:
I join Parts I, II, III.B, and IV of the majority opinion. As to Part III.A, I concur in the judgment. I agree that Mr. Doe has failed to allege facts that would allow a court to plausibly infer that Samford University discriminated against him “on the basis of sex” in violation of Title IX,
I
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.‘” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). As the majority notes, this pleading standard is by now a familiar one. Familiarity, however, does not always mean clarity. Let me try to explain the issues as I see them, acknowledging that I am not the first to flag them. See, e.g., McCauley v. City of Chicago, 671 F.3d 611, 620–29 (7th Cir. 2011) (Hamilton, J., dissenting in part).
A
The Supreme Court has told us that plausibility means something more than
First, the word plausible connotes a level of uncertainty—and even doubt—about the truthfulness of the claim. Second, plausible and probable mean essentially the same thing. See, e.g., 2 BLACK‘S LAW DICTIONARY 1392, 1454 (11th ed. 2019) (defining plausible as “[c]onceivably true or successful” and “possibly correct or even likely[,] reasonable” and probable as “[l]ikely to exist, be true or happen”); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1346, 1397 (4th ed. 2006) (defining plausible as “[s]eemingly or apparently valid, likely, or acceptable[,] credible” and probable as “[l]ikely to happen or to be true” and “likely but uncertain, plausible”) (emphasis added); 2 SHORTER OXFORD ENGLISH DICTIONARY 2238, 2352 (5th ed. 2002) (defining plausible as “seemingly reasonable or probable (though speculative),” and probable as “demonstrable, provable...[a]lso plausible”) (emphases added). They are even treated as synonyms of each other. See BURTON‘S LEGAL THESAURUS 407, 426 (3d ed. 1998) (using “probabilis” [a Latin word meaning probable] as a synonym of plausible and using “plausible” as a synonym of probable). The Supreme Court has, unfortunately, failed to acknowledge that there is “an incredibly thin line” between plausible and probable. See Matthew Fischer, Ashcroft v. Iqbal: The Supreme Court‘s Attempt to Clarify Bell Atlantic v. Twombly 18 (No. 2) Competition, J. Anti. & Unfair Comp. L. Sec. St. B. Cal. 56, 73 (2009).
Maybe the Supreme Court thinks that any difficulties in figuring out the daylight between plausible and probable can be solved by reliance on judicial experience and common sense. See Iqbal, 556 U.S. at 679. Yet these traits—which are not objectively uniform across the federal judiciary—have their own analytical difficulties. See Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 965 n.5 (11th Cir. 2020) (en banc) (Jordan, J., dissenting).
To make things more complicated, in several cases decided after Twombly and/or Iqbal, the Supreme Court has reaffirmed that
B
Then there is the Supreme Court‘s statement in Twombly, 550 U.S. at 557, repeated in Iqbal, 556 U.S. at 678, that “[f]actual allegations
In my view, this concept is difficult to justify at the pleading stage, where proof of the claim is not required. “[O]ne cannot at the same time rationally dispense with a ‘probability requirement’ to determine ‘plausibility’ yet conclude that something is not ‘plausible’ because there are other ‘more likely explanations.’ No sense can be given of ‘more likely’ except ‘more probable.‘” Ronald J. Allen & Alan E. Guy, Conley as a Special Case of Twombly and Iqbal: Exploring the Intersection of Evidence and Procedure and the Nature of Rules, 115 Penn St. L. Rev. 1, 37 (2010). See also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[I]t is not necessary to stack up inferences side by side and allow the case to go forward only if the plaintiff‘s inferences seem more compelling than the opposing inferences.”).
As I see it, the problem is particularly acute in a case alleging discrimination, where the critical issue is often the defendant‘s intent and the proof on that issue is often circumstantial. Imagine a Title VII case where a plaintiff alleges in his racial discrimination complaint (a) that his employer, when terminating him, said that the dismissal was due to his poor job performance (his division‘s financial performance was below expected standards), and (b) that this purported reason was pretext for racial discrimination (although his division‘s performance was below par compared to other years, it was the highest (in a down year for the company) compared to all other divisions, whose supervisors remained employed). In such case, I suggest that it is virtually impossible for a court to figure out, at the pleading stage, which factual assertion is the more likely (i.e., more plausible) one. On the one hand, the plaintiff‘s division did perform poorly, as the employer asserted. On the other hand, the plaintiff‘s division was the best performer when compared to all the other divisions, and none of the other division supervisors lost their jobs. If a Title VII plaintiff is not required to plead a prima facie case of discrimination in his complaint to survive a motion to dismiss, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002), then how is a court supposed to figure out at the pleading stage which explanation is the more plausible in this hypothetical? Cf. Doe v. Univ. of Denver, 1 F. 4th 822, 830–36 (10th Cir. 2021) (addressing, at summary judgment, pretext in a Title IX discrimination case brought by a male student charged with sexual misconduct); Garrett v. Univ. of S. Fla. Bd. of Trs., 824 F. App‘x 959, 966–67 (11th Cir. 2020) (addressing, at summary judgment, pretext in a Title IX retaliation claim brought by a victim of sexual assault).1
In response to this quandary, one commentator has suggested that courts use a “confidence analysis” in cases involving circumstantial allegations. See Luke Meier, Probability, Confidence, and Twombly‘s Plausibility Standard, 68 S.M.U. L. Rev. 331, 380–81 (2016). But that metric—though analytically interesting—does not provide any practical or helpful guidance to courts on the ground. If a court uses the “merely consistent” concept, it will in essence be deciding the issue of pretext at the motion to dismiss stage, where a complaint must be allowed to proceed “even if it strikes a savvy judge that actual proof of
Given that the Supreme Court has used the “merely consistent” concept in a case involving claims of intentional discrimination, see Iqbal, 556 U.S. at 678, and that our circuit has followed suit in some cases, see, e.g., Am. Dental Ass‘n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010), I do not fault the majority for doing the same here. See Maj. Op. at 23. But that does not mean that the “merely consistent” formulation is appropriate or workable in a case like this one. For one thing, it conflicts with our obligation to draw reasonable inferences in the plaintiff‘s favor at the
Indeed, several circuits have cautioned against relying on the “merely consistent” (i.e., “alternative explanation”) concept in Title IX cases. For example, in Doe v. Columbia University, 831 F.3d 46, 57 (2d Cir. 2016), the Second Circuit rejected the district court‘s conclusion that any alleged bias in favor of the complainant “could equally have been—and more plausibly was—prompted by lawful, independent goals, such as a desire ... to take allegations of rape on campus seriously and to treat complainants with a high degree of sensitivity.” It emphasized that a court is “obligat[ed] to draw reasonable inferences in favor of the sufficiency of the complaint,” and explained that “Iqbal does not require that the inference of discriminatory intent supported by the pleaded facts be the most plausible explanation of the defendant‘s conduct. It is sufficient if the inference of discriminatory intent is plausible.” Id. The Sixth and Ninth Circuits have taken similar approaches. See Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018) (“[O]ne plausible explanation is that the Board discredited all males, including Doe, and credited all females, including Roe, because of gender bias.”); Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 948 (9th Cir. 2020) (“Sex discrimination need not be the only plausible explanation or even the most plausible explanation for a Title IX claim to proceed.”). These cases make sense to me, and I would likewise not use the “merely consistent” concept here.
II
I agree with the majority‘s articulation of the substantive Title IX standard. See Maj. Op. at 16–19. This standard is not inconsistent with the recent decision in Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020) (using but-for causation for Title VII), as some courts have noted. See Sheppard v. Visitors of Va. St. Univ., 993 F.3d 230, 236–37 (4th Cir. 2021). The more difficult question is whether Mr. Doe‘s complaint alleges a plausible claim of sex discrimination under Title IX.
A
In Twombly, 550 U.S. at 563, the Supreme Court cited its prior decision in Swierkiewicz with approval. Swierkiewicz held that a Title VII plaintiff need not allege a prima facie case of discrimination to survive a motion to dismiss, and that the complaint in that case “easily” stated a claim for relief. See id. at 514–15. In his complaint, the plaintiff in Swierkiewicz “alleged that he had been terminated on account of his
they rest[ed]. In addition, they state[d] claims upon which relief could be granted under
Aside from conclusory claims that his demotion and termination had been on account of his national origin and age, the plaintiff in Swierkiewicz alleged that he had done his job in a “satisfactory and exemplary manner;” that his replacement after the demotion was “far less experienced and less qualified;” that his supervisor had said he wanted to “energize” the department in question; that he had been “isolated” after his demotion; that there were several years of “ongoing discrimination on account of his national origin and age;” that his grievances were not addressed or responded to; that the company had “no valid basis” to fire him; and that his national origin and age were “motivating factors” in the termination decision. See Complaint at 4–6 ¶¶ 18, 22, 23, 29, 31, 36, 37, Swierkiewicz v. Sorema, N.A., 86 Fair Empl.Prac.Cas. (BNA) 1324 (S.D.N.Y. 2000). Because the complaint in Swierkiewicz—which was relatively sparse—was sufficient to state plausible discrimination claims under
In most cases, procedural irregularities in a university‘s investigation of a sexual assault claim and an alleged erroneous outcome in a subsequent disciplinary proceeding will not, by themselves, make out a plausible
Here, it seems to me that Mr. Doe‘s collective allegations of procedural irregularities fall short of the plausibility mark. See Doe v. Princeton Univ., 790 F. App‘x 379, 384 (3d Cir. 2019) (plaintiff‘s grievances about the investigative process were insufficient to make out a
Turning to the allegedly erroneous outcome, Samford‘s decision finding Mr. Doe responsible does not appear—based on the allegations in the complaint—to be glaringly wrong. Ms. Roe testified at the hearing and explained that her ability to consent to intercourse with Mr. Doe was impaired by alcohol consumption. Although Ms. Roe had initially claimed that she had been drugged by Mr. Doe, the hearing panel knew about the prior inconsistent claim and was able to judge the credibility of Ms. Roe (and, for that matter, Mr. Doe). Cf. Rossley v. Drake Univ., 979 F.3d 1184, 1193 (8th Cir. 2020) (“We conclude. . .that whatever the deficiencies in [the] investigation, they did not result in findings so devoid of substantive content as to be unworthy of credence.“).4
Finally, Mr. Doe cites to other evidence to provide background for his claim of discrimination under
B
So what is necessary to allege a plausible claim of sex discrimination in violation of
In Purdue University, the Seventh Circuit was persuaded by the plaintiff‘s allegation that the
The allegations about the hearing also suggested that the panel was biased against the plaintiff, who was male. Crediting the plaintiff‘s allegations as true, the Seventh Circuit noted that “the majority of the panel members appeared to credit [the complainant] based on her accusation alone, given that they took no other evidence into account.” See id. The plaintiff was also denied the opportunity to present any witnesses in his favor, including an alibi witness, and he was unable to present evidence of a potential source of the complainant‘s anger toward him: his reporting of her suicide attempt while they were dating. See id. These allegations, viewed within the context of financial pressure from the government and a post by a university organization seemingly blaming men as a class for the problem of sexual assault, led the Seventh Circuit to conclude that the plaintiff had pled a plausible claim of discrimination on the basis of sex. See id. at 667–670.
The Sixth Circuit in Baum was concerned, based on the allegations, that the hearing panel found the plaintiff culpable of violating the university‘s policy even though the
In Columbia University the Second Circuit spent considerable time detailing the mounting pressure the university was experiencing when it made its determination against the plaintiff. In describing the university‘s alleged “pro-female, anti-male bias,” the Second Circuit concluded that the “biased attitudes were, at least in part, adopted to refute criticisms circulating in the student body and in the public press that [the university] was turning a blind eye to female students’ charges of sexual assaults by male students.” Columbia Univ., 831 F.3d at 56. It therefore concluded
The allegations in these three cases do not set a floor for plausibility in the
III
I agree with the majority that Mr. Doe has not alleged sufficient facts to meet the plausibility standard. I do not, however, believe that Twombly and Iqbal require plaintiffs to rule out in their complaints plausible alternative reasons for the misconduct they challenge.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
| AKOS SWIERKIEWICZ, Plaintiff, | : : | |
| v. | : : | NO. 99 Civ. 12272 (LAP) |
| SOREMA, N.A., Defendant. | : : |
AMENDED COMPLAINT
Pursuant to
1. This is an employment discrimination action brought by Akos Swierkiewicz to recover damages against SOREMA N.A. (“SOREMA“) for the violation of his rights under
JURISDICTION AND VENUE
2. Jurisdiction over Mr. Swierkiewicz‘s
3. Venue is proper in this district pursuant to the general venue statute,
PARTIES
4. Plaintiff, Akos Swierkiewicz, resides at 821 Hudson Drive, Yardley, Pennsylvania 19067.
5. Defendant SOREMA is a New York corporation headquartered at 199 Water Street, 20th Floor, New York, New York 10038.
6. At all times relevant hereto, SOREMA has resided and conducted business in this judicial district.
7. At all times relevant hereto, SOREMA has been an employer within the meaning of
EXHAUSTION OF ADMINISTRATIVE REMEDIES
8. On or about July 11, 1997 Mr. Swierkiewicz filed a Charge of Discrimination against SOREMA with the Philadelphia District Office of the Equal Employment Opportunity Commission (“EEOC“), Charge No. 170971447, charging it with unlawful national origin and age discrimination in connection with his dismissal from employment.
9. By notice dated May 3, 1999 and which he received on May 5, 1999, Mr. Swierkiewicz was notified by the EEOC of his right to file a civil action against SOREMA.
10. This lawsuit has been timely filed within 90 days of Mr. Swierkiewicz‘s receipt of the EEOC‘s right-to-sue notice.
11. Pursuant to
FACTUAL ALLEGATIONS
12. Mr. Swierkiewicz is a native of Hungary. He became a United States citizen in 1970.
13. Mr. Swierkiewicz is 53 years old. His date of birth is July 25, 1946.
14. SOREMA was formed in 1989. It is a reinsurance company principally owned and controlled by a French parent corporation. At all times relevant hereto, SOREMA‘s Chief Executive Officer has been François M. Chavel, a French national.
15. From 1970 to 1986, Mr. Swierkiewicz was employed by INA which after its merger in 1982 with Connecticut General, became CIGNA Insurance Company. His last position at CIGNA was Vice President of Special Risk Facilities.
16. From 1986 to 1989, Mr. Swierkiewicz was employed by SCOR U.S., a reinsurance company, as Senior Vice President for Research and Special Risks.
17. On April 17, 1989 Mr. Swierkiewicz began his employment with SOREMA in the position of Senior Vice President and Chief Underwriting Officer (“CUO“).
18. In all respects, Mr. Swierkiewicz performed his job in a satisfactory and exemplary manner.
19. Despite plaintiff‘s stellar performance, in February 1995 Mr. Chavel demoted him from his CUO position to a marketing and services position and transferred the bulk of his underwriting responsibilities to another French national, Nicholas Papadopoulo, who was 32 years old at the time (and 16 years younger than plaintiff).
20. Mr. Chavel demoted Mr. Swierkiewicz on account of his national origin (Hungarian) and his age (he was 49 at the time).
21. A year later, in or about February 1996, Mr. Chavel formally appointed Mr. Papadopoulo as SOREMA‘s CUO.
23. At the time Mr. Papadopoulo assumed plaintiff‘s duties as CUO, Mr. Chavel stated that he wanted to “energize” the underwriting department -- clearly implying that plaintiff was too old for the job.
24. In light of Mr. Papadopoulo‘s inexperience, Mr. Chavel brought in Daniel Peed from SOREMA‘s Houston, Texas office to support him in his CUO duties. Mr. Peed, like Mr. Papadopoulo, was in his early 30s. Shortly after his transfer to SOREMA‘s office in New York City, Mr. Chavel promoted Mr. Peed to the position of Senior Vice President of Risk Property.
25. Prior to his transfer, Mr. Peed had been a Second Vice President reporting to plaintiff.
26. Not long after plaintiff‘s demotion, SOREMA hired another French national, Michel Gouze, as Vice President in charge of Marketing. Mr. Gouze, unlike plaintiff, had very little prior experience in the insurance/reinsurance business.
27. Because of his inexperience, Mr. Gouze needed to rely on Mr. Swierkiewicz to perform his marketing duties for SOREMA.
28. Mr. Gouze‘s marketing duties at times overlapped with those of plaintiff. Despite Mr. Swierkiewicz‘s requests to better coordinate their duties, Mr. Chavel refused to accommodate those requests or to have Mr. Gouze report to plaintiff.
29. Mr. Swierkiewicz was isolated by Mr. Chavel following his demotion, excluded from business decisions and meetings and denied the opportunity to reach his true potential at SOREMA.
30. Efforts by Mr. Swierkiewicz to meet with Mr. Chavel to resolve the unsatisfactory working conditions to which he was subjected following his demotion proved unsuccessful.
31. On April 14, 1997, following two years of ongoing discrimination on account of his national origin and age, Mr. Swierkiewicz sent a memo to Mr. Chavel outlining his grievances and requesting a severance package to resolve his disputes with SOREMA.
32. Mr. Chavel did not respond to Mr. Swierkiewicz‘s memo.
33. In the morning, on Tuesday April 29, 1997, Mr. Chavel and Daniel E. Schmidt, IV, SOREMA‘s General Counsel, met with Mr. Swierkiewicz and gave him two options: either resign his job (with no severance package) or be fired.
34. Mr. Swierkiewicz refused to resign his employment with SOREMA.
35. As a result, he was fired by Mr. Chavel, effective that very day (April 29, 1997).
36. SOREMA had no valid basis to fire Mr. Swierkiewicz.
37. Plaintiff‘s age and national origin were motivating factors in SOREMA‘s decision to terminate his employment.
38. Unlike plaintiff who was fired without cause and without any severance pay or benefits, SOREMA has provided generous severance packages to a number of former executives for whom it had cause to terminate their employment. These include, but are not limited to, the following individuals: Jay Kubinak, Thilo Herda,
39. As a direct and proximate cause of his being fired by SOREMA, Mr. Swierkiewicz has suffered and will continue to suffer a substantial loss of earnings to which he otherwise would have been entitled. This includes, but is not limited to, the loss of his salary, bonus, automobile allowance and pension credits as well as the loss of his medical and dental insurance, life insurance, short and long term disability insurance and the insurance he had for accidental death and dismemberment.
40. As a further direct and proximate cause of his being fired by SOREMA, Mr. Swierkiewicz has suffered damage to his reputation and harm to his career. He has also experienced physical pain and suffering, mental anguish, and the loss of enjoyment of life‘s pleasures.
41. SOREMA acted willfully and in reckless disregard of Mr. Swierkiewicz‘s rights under
STATEMENT OF CLAIMS
COUNT I: VIOLATION OF TITLE VII
42. Mr. Swierkiewicz repeats and incorporates by reference the allegations of paragraphs 1 - 41 of the Amended Complaint as if they were set forth in full.
43. SOREMA terminated Mr. Swierkiewicz‘s employment on account of his national origin and thereby violated his right to equal employment opportunity as protected by
COUNT II: VIOLATION OF THE ADEA
44. Mr. Swierkiewicz repeats and incorporates by reference the allegations of paragraphs 1 - 43 of the Amended Complaint as if they were set forth in full.
45. SOREMA terminated Mr. Swierkiewicz‘s employment on account of his age and thereby violated his right to equal employment opportunity as protected by the
COUNT III: VIOLATION OF THE HUMAN RIGHTS LAW
46. Mr. Swierkiewicz repeats and incorporates by reference the allegations of paragraph 1 - 45 of the Amended Complaint as if they were set forth in full.
47. Sorema terminated Mr. Swierkiewicz‘s employment on account of his national origin and/or age in violation of his right to equal employment opportunity as protected by the
COUNT IV: VIOLATION OF THE CITY LAW
48. Mr. Swierkiewicz repeats and incorporates by reference the allegations of paragraphs 1 - 47 of the Amended Complaint as if they were set forth in full.
49. Sorema terminated Mr. Swierkiewicz‘s employment on account of his national origin and/or age in violation of his right to equal employment opportunity as protected by the
PRAYER FOR RELIEF
WHEREFORE, Mr. Swierkiewicz respectfully requests the Court to enter judgment in his favor against SOREMA, and to accord him the following relief:
- Back pay with prejudgment interest and all the fringe benefits to which he is entitled;
- Front pay and benefits to the extent reinstatement is not feasible;
-
Compensatory damages for his non-economic injuries in an amount authorized by Title VII and by the Human Rights Law and the City Law; - Punitive damages to punish and deter SOREMA from future acts of employment discrimination in an amount authorized by
Title VII and the City Law; - Liquidated damages in an amount equal to twice Mr. Swierkiewicz‘s back pay losses as authorized by the
ADEA ; - An award of reasonable counsel fees and costs to compensate Mr. Swierkiewicz for having to prosecute this action against SOREMA; and
- Such other legal and equitable relief or may be just and proper under the circumstances.
JURY DEMAND
Mr. Swierkiewicz demands a trial by jury on all the issues in this action that are triable by law.
Respectfully submitted,
Harold I. Goodman, Esquire (HG 4895)
RAYNES, MCCARTY, BINDER, ROSS & MUNDY
1845 Walnut Street, 20th Floor
Philadelphia, PA 19103
(215)568-6190
ANNE L. CLARK, ESQUIRE (AC 6456)
VLADECK, WALDMAN, ELIAS & ENGELHARD, P.C.
1501 Broadway, Suite 800
New York, NY 10036
(212)403-7332
Counsel for Plaintiff,
Akos Swierkiewicz