Kathryn Sheppard v. David Evans and Assoc.
694 F.3d 1045
9th Cir.
2012
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Docket

Kathryn SHEPPARD, Plaintiff-Appellant, v. DAVID EVANS AND ASSOC., an Oregon corporation, Defendant-Appellee.

No. 11-35164.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2012. Filed Sept. 12, 2012.

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tion, that “a much higher sentence is appropriate.” Nielsen also argues that the district court drew “exaggerated” or “factually flawed” inferences from a psychological report, including the inference that Nielsen was not likely to learn from his experience. However, the report explicitly arrived at that conclusion based on Nielsen‘s lack of self-control, impulsivity, callousness, and lack of guilt or remorse. Finally, Nielsen asserts that his sentence is unfair because the district court made no reference to A.J.‘s conduct. That assertion is incorrect; the court considered A.J.‘s behavior, including that she actively pursued drugs and was willing to engage in sexual conduct. The district court did not abuse its discretion by concluding that Nielsen‘s encouragement of these behaviors weighed for, rather than against, a lengthy sentence.

IV. Conclusion

The record and the case law support the district court‘s finding that A.J. was an unusually vulnerable victim warranting an adjustment to Nielsen‘s sentence under Sentencing Guidelines § 3A1.1. In holding otherwise, the majority puts that adjustment out of reach in all but the rarest of cases. In addition, the district court did not err in enhancing Nielsen‘s sentence under Sentencing Guidelines § 4B1.5(a) based on a prior juvenile sexual assault adjudication. Nothing in that section limits “sex offense conviction[s]” to adult, rather than juvenile, adjudications. In any event, any error in applying this enhancement was harmless, since Nielsen was eligible for an enhancement under § 4B1.5(b). Finally, Nielsen‘s sentence is substantively reasonable. For these reasons, I would affirm the district court.

Glenn N. Solomon, Portland, OR, for the plaintiff-appellant.

Victor Kisch, P.K. Runkles-Pearson, Stoel Rives LLP, Portland, OR, for the defendant-appellee.

P. David Lopez, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, Daniel T. Vail, Attorney, United States Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C., for amicus curiae United States Equal Employment Opportunity Commission.

Todd A. Hanchett, Brenda K. Baumgart, Barran Liebman LLP, Portland, OR, for amicus curiae Oregon Association of Defense Counsel.

Before: BETTY B. FLETCHER and HARRY PREGERSON, Circuit Judges, and DONALD E. WALTER, Senior District Judge.*

OPINION

PREGERSON, Circuit Judge:

In 2010 Plaintiff-Appellant Kathryn Sheppard (“Sheppard“) filed a complaint in federal district court against her former employer, David Evans and Associates (“Evans“). The complaint alleged causes of action for: (1) employment discrimination under the Age Discrimination in Employment Act (“ADEA“); and (2) “wrongful discharge” under Oregon law. The district court dismissed Sheppard‘s complaint, with leave to amend, for failure to state a claim under Federal Rule of Civil Procedure 8(a)(2). Sheppard then filed an amended complaint alleging the same causes of action and adding some factual details. The district court dismissed Sheppard‘s amended complaint with prejudice concluding she had “failed to plead any cause of action with sufficient factual detail to state a claim,” and therefore failed to satisfy the pleading requirements of Federal Rule of Civil Procedure 8(a)(2). Sheppard appeals the district court‘s ruling.

As discussed below, we conclude that Sheppard‘s amended complaint, while brief, nonetheless satisfies Rule 8(a)(2)‘s pleading standard. Accordingly, we re-

verse the district court‘s dismissal of Sheppard‘s amended complaint.

BACKGROUND

The allegations in Sheppard‘s amended complaint are recounted verbatim below:

  1. Plaintiff, (Sheppard) is an adult female citizen in the federally protected age group under the ADEA, 29 USC 621 et seq. She is over the age of forty.
  2. Defendant, (Evans) is an Oregon corporation that does business in Portland, Oregon.
  3. Sheppard worked for Evans as an Executive Administrative Assistant from 11/28/05 to 2/2/09.
  4. Sheppard was involuntarily terminated from her position by Evans.
  5. At all material times her performance was satisfactory or better. She received consistently good performance reviews.
  6. At the time of her termination there were five comparators employed by Evans in Oregon of which Sheppard was the oldest.
  7. [Sheppard‘s] younger comparators kept their jobs.
  8. Age was a determining factor in the decision to terminate Shepard.
  9. Prior to her termination, Sheppard requested Family Medical Leave for a serious illness. She qualified for both Oregon Family Medical Leave and federal Family Medical Leave.
  10. In so doing Sheppard was [pursuing] a right of public importance that belonged to her as an employee.
  11. Sheppard was terminated immediately after she scheduled the surgery for which she requested Family Medical Leave.
  12. [Sheppard‘s] attempt to use Family Medical Leave was a substantial motivating factor for her termination.
  13. Sheppard was terminated because she pursued a right of public importance, Family Medical Leave, that belonged to her as an employee.
  14. Sheppard‘s termination was therefore a wrongful act in violation of public policy under Oregon law.
  15. [Sheppard] has met all administrative exhaustion requirements under the Age Discrimination in Employment Act, and this complaint is timely filed.
  16. As a result of her termination Sheppard lost and continues to lose wages and benefits.
  17. As a result of her termination Sheppard suffered and continues to suffer emotional pain and a sense of degradation.

STANDARD OF REVIEW

We review de novo a district court‘s dismissal of a complaint for failure to state a claim. . The facts in the complaint are accepted as true and are construed in the light most favorable to the plaintiff. .

DISCUSSION

Federal Rule of Civil Procedure 8(a)(2) requires that each claim in a pleading be supported by “a short and plain statement of the claim showing that the pleader is entitled to relief.” Under this rule, a claim must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” . Instead, to satisfy Rule 8(a)(2), a “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” (internal quotation marks omitted). Although this standard requires that a claim be “plausi-ble on its face,” it does not require that a complaint contain “detailed factual allegations.” (internal quotation marks omitted). As the text of Rule 8(a)(2) itself makes clear, even a “short and plain” statement can state a claim for relief. See Fed. R.Civ.P. 8(a)(2). Here, as discussed below, Sheppard‘s two-and-one-half page complaint, while brief, nonetheless satisfies Rule 8(a)(2)‘s pleading standard.

I. Sheppard‘s Amended Complaint Contains a Plausible Claim of Age Discrimination under the ADEA

The ADEA prohibits an employer from, among other things, “discharging” an employee who is over forty years of age “because of” the employee‘s age. 29 U.S.C. §§ 623(a)(1), 631(a). Under a “disparate treatment”1 theory of discrimination, a plaintiff in an ADEA case can establish age discrimination based on: (1) “circumstantial evidence” of age discrimination; or (2) “direct evidence” of age discrimination. See (discussing circumstantial evidence of age discrimination); (discussing direct evidence of age discrimination). Here, Sheppard‘s two-and-one-half page amended complaint, while brief, alleges a plausible claim of age discrimination based on circumstantial evidence of discrimination.

Claims of age discrimination based on circumstantial evidence are analyzed under the “three-stage burden shifting framework laid out in .” . Under the framework:

[T]he employee must first establish a prima facie case of age discrimination. If the employee has justified a presumption of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action. If the employer satisfies its burden, the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination.

. To establish a prima facie case of discrimination, a plaintiff must allege in her complaint that: (1) she was at least forty years old; (2) she was performing her job satisfactorily; (3) discharged; and (4) “either replaced by [a] substantially younger [employee] with equal or inferior qualifications or discharged under circumstances otherwise giving rise to an inference of age discrimination.” Id. (emphasis added) (internal quotation marks omitted). “An inference of discrimination can be established by showing the employer had a continuing need for the employee[‘s] skills and ser-

vices in that their various duties were still being performed ... or by showing that others not in their protected class were treated more favorably.” Id. at 1207-08 (internal marks and quotation marks omitted).

Here, Sheppard‘s amended complaint alleges a “plausible” prima facie case of age discrimination. Her complaint alleges that: (1) she was at least forty years old; (2) “her performance was satisfactory or better” and that “she received consistently good performance reviews“; (3) she was discharged; and (4) her five younger comparators kept their jobs.

Sheppard‘s allegation that her five younger comparators kept their jobs gives rise to an “inference of age discrimination” because it plausibly suggests that Evans “had a continuing need for [Sheppard‘s] skills and services [because her] various duties were still being performed.” See (internal marks and quotation marks omitted). It also plausibly suggests that employees outside her protected class “were treated more favorably” than Sheppard. See id.

Although Sheppard‘s complaint is brief, her allegations are sufficient to state a prima facie case of discrimination. As the Seventh Circuit has explained:

[I]n many straightforward cases, it will not be any more difficult today for a plaintiff to meet [her] burden than it was before the [Supreme] Court‘s recent decisions [in Iqbal and Twombly]. A plaintiff who believes that she has been passed over for a promotion because of her sex will be able to plead that she was employed by Company X, that a promotion was offered, that she applied and was qualified for it, and that the job went to someone else. That is an entirely plausible scenario, whether or not it describes what ‘really’ went on in [the] plaintiff‘s case.

. Like the Seventh Circuit‘s hypothetical, Sheppard‘s complaint puts forward a “straightforward” case of discrimination. She alleges that she was over forty and “received consistently good performance reviews,” but was nevertheless terminated from employment while younger workers in the same position kept their jobs. This is an “entirely plausible scenario” of employment discrimination. .2

II. Sheppard‘s Amended Complaint Contains a Plausible Claim for Wrongful Discharge

A. “Wrongful Discharge” Under Oregon Law

Under Oregon law “an employer may discharge an employee at any time, for any reason, unless doing so violates a contractual, statutory or constitutional requirement.” (internal quotation marks omitted). The tort of wrongful discharge provides an exception to this general rule. . An employee may bring a claim for wrongful discharge “when the discharge is for exercising a job-related right that reflects an important public policy.” (internal citations omitted).3 Exam-

ples of “exercising a job-related right that reflects an important public policy,” include an employee filing for workers compensation, see , or an employee taking leave under the Oregon Family Leave Act, see .

To prevail on a claim of wrongful discharge, a plaintiff “must establish a ‘causal connection’ between a protected activity and the discharge.” (quoting ). A “causal connection” requires a showing that “the employee‘s protected activity [was] a substantial factor in the motivation to discharge the employee.” Id. at 797 (internal quotation marks omitted). “[T]o be a substantial factor, the employer‘s wrongful purpose must have been a factor that made a difference in the discharge decision.” Id. (internal quotation marks omitted).

B. Sheppard‘s Amended Complaint Includes Sufficient Facts to Plausibly Suggest that She Was Terminated for Requesting Medical Leave

Sheppard alleges in her amended complaint that, “[p]rior to her termination, [she] requested Family Medical Leave for a serious illness.” Her amended complaint further alleges that she was “terminated immediately after she scheduled the surgery for which she requested Family Medical Leave” and that, prior to her termination, Sheppard had “received consistently good performance reviews.” These allegations are sufficient to state a claim for wrongful discharge.

The Supreme Court has emphasized that analyzing the sufficiency of a complaint‘s allegations is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” . In Sheppard‘s case, “common sense” suggests that there is a “causal connection” between Sheppard‘s request for medical leave and her termination. Significantly, Sheppard‘s amended complaint alleges that she was terminated “immediately” after she scheduled her surgery. This allegation, in conjunction with Sheppard‘s allegation that she “received consistently good performance reviews” gives rise to an inference that Sheppard was performing her job well but was nonetheless terminated for requesting medical leave.

CONCLUSION

We REVERSE the district court‘s dismissal of Sheppard‘s amended complaint and REMAND for further proceedings consistent with this opinion.

Notes

1
A plaintiff in an employment discrimination case can proceed under two theories of employment discrimination: “disparate treatment and disparate impact.” (citing ). “Disparate treatment is demonstrated when the employer simply treats some people less favorably than others because of [a protected characteristic].” Id. (internal marks and quotation marks omitted). “Disparate impact” is demonstrated when “employment practices that are facially neutral in their treatment of different groups ... fall more harshly on one group than another and cannot be justified by business necessity.” (internal quotation marks omitted). Because Sheppard‘s amended complaint does not contain any allegation regarding a “facially neutral” employment practice, we analyze Sheppard‘s claim under a “disparate treatment” theory of discrimination.
2
A plaintiff in an ADEA case is not required to plead a prima facie case of discrimination in order to survive a motion to dismiss. See . Nevertheless, in situations such as this, where a plaintiff pleads a plausible prima facie case of discrimination, the plaintiff‘s complaint will be sufficient to survive a motion to dismiss. See .
3
An employee may also bring a claim for wrongful discharge when she was discharged “for fulfilling some important public duty.” . Examples of a “public duty” wrongful discharge include discharge for refusing to defame another employee, see , or discharge for serving on jury duty, see . Id. This type of wrongful discharge is not at issue in this appeal.
*
The Honorable Donald E. Walter, Senior District Judge for the U.S. District Court for Western Louisiana, sitting by designation.
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