McCleary-Evans v. Maryland Department of Transportation, State Highway Administration

facts, a reasonable quest. From these

jury easily conclude that the AOC could failing engage faith in bad

acted process Jacobs. interactive summary conclude that

We therefore fail-

judgment not warranted Jacobs’s claim.

ure accommodate

IV. reasons, foregoing

For the we reverse

part granting the district court’s order

summary judgment against Jacobs and re- court for

mand to the district trial of discrimination, retaliation, disability

ADA

and failure to accommodate claims. PART, IN

AFFIRMED REVERSED PART,

IN AND REMANDED TRI- FOR

AL. McCLEARY-EVANS,

Dawnn

Plaintiff-Appellant,

MARYLAND DEPARTMENT OF

TRANSPORTATION, STATE HIGH- ADMINISTRATION,

WAY Defen-

dant-Appellee.

No. 13-2488. Court of Appeals,

United States

Fourth Circuit. Dec.

Argued: 2014.

Decided: March Morris, Jr., Henry

ARGUED: John Jr., Morris, H. Balti- Law Office of John more, matter, true, tual Maryland, Appellant. accepted for DeNisha as to ‘state a ” Watson, Attorney claim to relief that is plausible A. Office of General on its face’ Baltimore, Maryland, (quoting Bell Atl. Maryland, Ap- Corp. of for Gansler, 544, 570, U.S. Douglas BRIEF: F. pellee. ON L.Ed.2d (2007))). Attorney Maryland, Office of General Attorney Maryland, Balti- General I more, Maryland, Appellee. for McCleary-Evans worked for over 20 NIEMEYER, WYNN, Before yеars a project manager on environ- DIAZ, Judges. Circuit regulatory mental compliance projects employed while Maryland Depart- by published opinion. Affirmed Judge ment of Natural Mary- Resources and the majority NIEMEYER opinion, wrote the land Transit Administration. In late 2009 joined. DIAZ Judge Judge which and early applied she open for two separate WYNN wrote a opinion positions Highway Administration’s dissenting part. Division, Environmental Compliance inter- NIEMEYER, Judge: Circuit viewing position first for a as an assistant Dawnn commenced division chief and later for a position as an this against Maryland Depart- action compliance environmental program man- ment Transportation’s Highway State ager. Despite prior her experience work Administration, alleging Highway education, that the which alleged she made her Administration failed or refused to qualified” hire “more than positions, for the two positions her two for which she she was not selected for position. either (African American) Instead, asserted, because of her race complaint as the “The (female), and her sex in violation of positions question Title by were filled non- Rights VII of the Civil Act of specifi- Black candidates.” 2000e-2(a)(l). cally § In U.S.C. her McCleary-Evans’ claim High- complaint, alleged highly she that shе was way Administration did not hire her “be- qualified positions, for the but cause of the combination of her race and “pre- decisionmakers were biased and had gender” essentially relies para- on two determined” that they would select white one, graphs complaint. of her she al- candidates to fill the positions. leged applications “subject that her were granted The district court Highway panel significantly to a review influenced Keenan, Administration’s motion Gregory to dismiss under and controlled ... 12(b)(6), Federal Rule of Civil Procedure male in White the Office of Environmental (‘OED’) concluding Design failed to al- who worked under the su- legе plausibly support Director, facts that a claim pervision Sangah- of OED Sonal vi, woman,” discrimination. Because agree “[djuring we a non-Black and that interview, failed to include ade- the course of her and based quate OED, factual allegations support upon history a claim ... hires within Highway Administration discrimi- both Keenan and Sangahvi predetermined against nated her because she African positions select both a White male or female, American or accordingly para- we affirm. female candidate.” In the other 662, 678, that, Iqbal, similarly See graph, alleged “although she Ashcroft 173 L.Ed.2d African American had candidatеs been (“[A] among pool,” must contain sufficient fac- the selection “Keenan and court’s order dismiss- gender, of race and From the district Sangahvi, for reasons complaint, McCleary-Evans filed candi- the African American overlooked male, appeal. this preferably, and dates to select White short, female candidates.” White that the deci- conclusory fashion

claimed II making biased when sionmakers were that McCleary-Evans contends the dis- in- And the did not decision. pleading on a imposed trict court her stan- qualifi- any allegations regarding clude rigorous” “more than Swierkiewicz v. dard suitability of persons cations or hired N.A., 992, Sorema S.Ct. positions. to fill the two (2002), allows, by analyzing 152 L.Ed.2d claim, her the district dismissing In set forth in her claim under the standard Green, McCleary-Evans Douglas Corp. that had court concluded McDonnell 36 L.Ed.2d 668 sup- that “allege plausibly failed to facts (1973), proving prima a facie case of court port a claim of discrimination.” The that, discrimination. She maintains a reasoned that because this was case with “District Court’s decision fails to demon- discrimination,” “no direct evidence of deficiency Complaint of the strate as a McCleary-Evans to needed facts pleading, authority but rather offers a prima sufficient to “state facie case only challenge works as а to demonstrate discrimination for failure to hire show- deficiency evidentiary proof.” (Empha- (1) ing: a pro- that she is member of the sis (2) class; employer tected had an open position for which or (3) sought to apply; qualified she was held that “an position; for the that she was plaintiff plead prima need not a facie case rejected giving under circumstances rise to of discrimination ... to survive motion [a] án inference of unlawful discrimination.” It dismiss,” to 534 U.S. at S.Ct. that, noted while had prima because facie case ... is an “[t]he sufficiently alleged prongs three first standard, evidentiary pleading not a re case, prima fаcie she had not “stated quirement,” id. at S.Ct. facts sufficient to meet the re- may require demonstrating more elements quirements prong.” required as to the fourth Her than are otherwise to state a relief, said, claim for id. at complaint, court noth- “offerfed] The a requiring Court stated support conclusory her assertions plead a facie prima case would beyond [of an unsubstanti- discrimination] “heightened pleading amount to a stan history ated mention of ‘a of hires’ within that would conflict with Federal dard” identifying division[] statements 8(a)(2). Rule of Civil Procedure Id. at race, the races of the two members of 122 S.Ct. 992. As the Court explained: hiring panel, review and the races of applicants positions.” two hired for the require plain- not a appropriate is [I]t that, The court concluded dis- “[b]ecause plead establishing prima tiff to facts presumed crimination cannot simply be be- Doug- facie case because the McDonnell cause one candidate is selected over anoth- every apply las ‍​‌​‌‌‌​‌‌​‌​​​​‌​‌‌​​‌​​‌​‌​​​‌​‌​‌​‌‌​​‌‌​‌​‌‌‌‍framework does not cándidate, er ha[d] For employment discrimination case. pled instance, adequate give produce facts to rise to rea- if a plaintiff is able discrimination, may sonable inference of discriminatiоn.” he direct evidence ” prevail proving without all the elements ther factual enhancement’ does not “suf- prima of a facie case. fice” (quoting Twombly, 550 U.S. at 1955)). Court has Accordingly, Id. S.Ct. 992. 8(a)(2) accordingly held that Rule requires ordinary Court concluded that “the rules that “a complaint ... ] sufficient assessing sufficiency of a containf matter, true, factual accepted as to ‘state a apply,” referring to Federal Rule of Civil claim to relief 8(a)(2). Procedure its face’ in the sense that complaint’s Swierkiemcz, light McCleary-Ev factual must allow a “court to appropriately argues ans that the district draw the reasonable inference that analysis by court erred in its requiring her defendant is liable for the misconduct al- facts establishing prima facie leged.” Iqbal, case of discrimination to survive a motion added) (quoting Twombly, to dismiss. But the district court’s errone 1955); 550 U.S. at see also analysis ous in'this case will not save the Coleman, 626 F.3d at 191 (finding a com- if, complaint “ordinary under the rules for plaint inadequate allegations because its assessing sufficiency, of a complaint,” to establish a plausible “fail[ed] basis for Swierkiewicz, at 534 U.S. S.Ct. ... believing that race was the true basis it fails to state a claim for action]”). [the adverse relief under Title VII. See Coleman v. Md. (4th Appeals, 626 F.3d of complaint, Cir.2010) (“[W]hile plaintiff a is not re purported VII, to state a claim under Title quired to pri facts constitute a which means that required she was ma facie case order to a survive motion allege satisfy facts to the elements of a dismiss, ‘[fjactual Swierkiemcz, see alle cause of action created that statute— gations enough must be right to raise a i.e., case, in this that the Highway Admin (cita speculative relief above the level’” istration or “fail[ed] to hire” her refus[ed] omitted) tion (quoting Twombly, 550 U.S. “because race ... [her] sex.” 42 [or] 1955)). at 2000e-2(a)(l) § U.S.C. Federal Rule of Civil Procedure allege While she did Highway 8(a)(2) “requires only a short plain her, Administration failed to hire she did statement of the claim showing not facts sufficient to claim that the pleader relief, is entitled to give order to it" reason failed to hire her was because of the defendant fair notice of what the ... sure, her race or sex. To be she repeated claim grounds is and the upon ly alleged which it Highway that the Administra rests.” Twombly, 550 U.S. at 127 tion did not select her because of the rele (internal S.Ct. 1955 quotation marks and vant against decisionmakers’ bias African omitted). citation plead But this rule for American women. But those “naked” alle a ing “requires gations more than labels and conclu “formulaic recitation” of the — sions, and a formulaic recitation of the necessary elements—“are no more than elements of a cause of action will not do.” conclusions” and therefore do not suffice. Instead, complaint Id. a Iqbal, must contain 556 U.S. at 129 S.Ct. 1937 (quoting 555, 557, “[f]actual to raise a [sufficient] right 1955) (internal speculative relief above the level.” 127 quotation marks Id.; omitted). see Iqbal, also example, For alleged (holding interview, S.Ct. 1937 that a “[d]uring “ten the course of her dering] ‘naked upon history assertions]’ devoid of ‘fur- based of hires within [the Design], company’s ... officer CEO de- both when Environmental

Office of Sangahvi predeterminеd, him “transferred the bulk his Keenan and moted a White male or positions to an underwriting responsibilities” select for both em- alleged But she no who, CEO, female candidate.” was French ployee like happened “during for what factual basis significantly national who also was to support interview” of her course younger than Swierkiewicz. allegation that the alleged conclusion. 992. He alleged did not hire her Highway Administration later, that, year further about CEO makers decision were biased because its ‘energize’ “stated that he wanted to conclusory. Only speculation simply too appointed department” and underwriting can in her gaps specula- fill the younger national to — French serve as tion “non-Black candidates” why as to two underwriting new chief company’s offi- positions fill the were selected to instead alleged Id. Finally, spe- cer. allegation her. that non-Black While cifically underwriting the new chief hired applicants non-Black decisionmakers experienced was and less qual- officer “less is consistent with instead of he position only ified” because “had discrimination, it support does alone year underwriting experience one at the that the decisionmak- reasonable inference promoted,” time he wherеas Swier- by bias. ers motivated See id. were experience years kiewiez “had 26 in the can industry.” As this last insurance detail only persons hired were speculate allegation precisely the kind of that is qualified, perform not or did better missing McCleary-Evans’ complaint, from interviews, during better their or were not the fact that the Court found experience per- better suited based and Swierkiewicz’s sufficient short, positions. the sonality for says a ultimately state claim little about McCleary-Evans’ complaint “stopfped] sufficiency McCleary-Evans’ com- possibility short the line between and plaint. plausibility entitlement relief.” Id. 557, Moreovеr, 550 U.S. at (quoting finding complaint suffi- 1955) (internal quotation cient, marks omit- Supreme Court ted). applied a pleading different standard than requires that which it now under Iqbal dissent, Judge Wynn

In his asserts that Twombly. Robertson v. See Sea “ignores our holding underpin- factual Cos., Real Pines Estate 679 F.3d Swierkiewicz, nings” post, at which (4th Cir.2012) Iqbal (noting approved an Twombly specificity more “require from that, claims, allega- he complaint contained complaints in federal civil cases than was by detailed than tions less those made case”). sure, heretofore To be those case, post, this at 591. cases did hold- not overrule Swierkiewicz’s Swierkiewicz, however, A closer look ing that a need not plaintiff support posi- reveals that it does not this evidentiary proving for Title standard claimed tion. Swierkiewicz that he had claim-indeed, Twombly expressly reaf- VII subject been on his discrimination based holding firmed age Swierkiewicz’s origin, alleging and national that he “ a heightened pleading ‍​‌​‌‌‌​‌‌​‌​​​​‌​‌‌​​‌​​‌​‌​​​‌​‌​‌​‌‌​​‌‌​‌​‌‌‌‍‘use of standard employed by had com- been reinsurance contrary Title pany for cases was “principally that was owned and con- VII plead- Federal of liberal parent corporation” trolled a French Rules’ structure ” requirements.’ Twombly, years about six as the chief underwrit- (quoting therefore, Twombly has, S.Ct. 1955 v. Corp., F.Supp.2d Bell Atl. 181 Iqbal and Twombly, rejected the sufficien (S.D.N.Y.2003)); see, e.g., Rodriguez- cy complaints that merely allege the Reyes Molina-Rodriguez, 711 F.3d possibility relief, of entitlement to requir (1st Cir.2013) “[sjeveral (joining other ing plausibility obtaining such relief appeals” concluding courts of “that the and thus rejecting complaint in which the Swierkieimcz Court’s treatment of pri plaintiff speculation. relies on See Twom ma facie case in the context re (“Fac bly, 127 S.Ct. 1955 law). good Twombly mains” But and Iq tual allegations must enough be to raise a bal did alter the criteria for assessing the right to relief speculative above the level” sufficiency of a in аt least two added)). First, respects. Twombly Court ex Thus, contrary Judge Wynn’s asser- plicitly overruled the earlier ar standard tions about the applicability of Swierkiew- Gibson, in Conley ticulated icz, it is clear that that decision does not (1957) L.Ed.2d 80 re —and (1) control the outcome here because: peated in see 534 U.S. at complaint in Swierkiewicz alleged that the “ 514, 122 S.Ct. 992—that ‘a complaint plaintiff qualified was more than youn- should not be dismissed for failure to state ger person French appointed to replace a claim it appears beyond unless doubt allegation him-an prove can no set of facts made; has not in any Sivierkiewicz in support of his claim which would entitle event a more lenient pleading stan- him to relief.’ Twombly, 550 U.S. at dard than plausible-claim standard 127 S.Ct. 1955 (quoting Conley, 355 U.S. required by now Twombly Iqbal. 99); see also Iqbal, 556 Applying U.S. at the Twombly/Iqbal 129 S.Ct. 1937 (acknowledging standard Twombly here Conley McCleary-Evans’ “retired the reveals that no-set- com- test”); Giacomelli, of-facts plaint Francis v. suffers from the same deficiencies (4th Cir.2009) (same). F.3d 192 n. 1 that defeated the Iqbal. Moreover, Iqbal Twombly and Iqbal, articulated plaintiff, the a Muslim citizen of a requirement new complaint that a must 9/11, Pakistan who was detained after al- allege plausible relief, a claim for thus leged in a conclusory fashion that he was rejecting a standard that would allow a harshly pursuant treated policy to a complaint to “survive a motion to dismiss adopted by Attorney General and the whenever the pleadings open left the pos Director of the FBI solely on account of sibility that a plaintiff might later estab race, religion, his or origin. national See lish some ‘set of facts’ to [undisclosed] 556 U.S. at 129 S.Ct. 1937. The support recovery.” Twombly, 550 U.S. at Supreme complaint Court found the insuf- 561, (alteration 127 S.Ct. original) 1955 in ficient it ‘nudged because had “not [his] claims’ of invidious discrimination ‘across ” short, the line from plausible,’ in addition conceivablе to to the fact that id. (alteration at origi- 129 S.Ct. 1937 in complaint contained more nal) (quoting relevant factual allegations Twombly, 550 at stating a U.S. 1955), Title claim McCleary-Ev VII than does explaining his factual complaint, ans’ “plausibly suggest” the Swierkiewicz did not also a applied pleading Attorney standard more re General and the FBI Di- plausible-claim laxed than the “discriminatory standard re rector had acted with a quired by bottom, Iqbal Twombly. mind,” and At state of id. jurisprudence regarding McCleary-Evans’ complaint Court’s recent

Similarly, It pleading requirements. requires for Rule 8 cause open speculation leaves Supreme us to Court’s deci- reconcile to select someone decision defendant’s Corp. in v. sions Bell Atl. ‍​‌​‌‌‌​‌‌​‌​​​​‌​‌‌​​‌​​‌​‌​​​‌​‌​‌​‌‌​​‌‌​‌​‌‌‌‍her, cause that asks and the other than discrimination) U.S. 127 S.Ct. L.Ed.2d 929 (i.e., us to infer invidious “ (2007), Iqbal, and U.S. alter plausible light ‘obvious Ashcroft (2009), 173 L.Ed.2d 868 native decisionmak explanation’ with its decision Swierkiewicz Sorema those hired to be more simply judged ers A., N. posi suited for the qualified and better (2002)-no task as in- L.Ed.2d small 682, 129

tions. S.Ct. 1937 Iqbal, in this area consistent case law shows. (quoting Twombly, 550 U.S. 1955). Indeed, the consequence Supreme The Court’s decisions McCleary-Evans’ pro claim to allowing Twombly which Iqbal, underpin ceed on her as stated would be majority’s speak to holding, prop- each аny qualified protected member a 8(a)(2) of application er of Rule the Feder- alleges nothing class who more than that al Rules of Procedure. That rule Civil promotion or position she was denied yardstick by continues to be which favor her protected of someone outside sufficiency of courts measure the civil com- able to class would be survive Rule plaints. language of the rule thus 12(b)(6) a result motion. Such cannot be starting good point any makes for a squared com Court’s court’s of a motion to consideration dismiss mand that a must “more for failure a claim. The pro- to state rule possibility than a that a sheer defendant vides: unlawfully.”

has acted (a) A pleading Claim for Relief. S.Ct. 1937. states a for relief must claim contain: sum, plain the district improp- while court short statement of the erly showing pleader claim Douglas the McDonnell evi- is enti- dentiary analyzing tled to standard the suffi- relief.... ciency McCleary-Evans’ complaint, 8(a)(2). Fed.R.Civ.P. contrary to the court none- again Time Court has theless un- reached the correct conclusion 8(a)(2) reiterated that Rule sets forth a Twombly der Iqbal because the com- standard[],” pleading “liberal one which

plaint failed to state a claim for does not contemplate “spe relief, required by Federal Rule of Civ- Pardus, cific facts.” Erickson v. 8(a)(2). il af- Accordingly, Procedure we 2197, 1081 S.Ct. L.Ed.2d firm. (2007). Supreme recent And Court’s

AFFIRMED. jurisprudence extinguished has not what 12(b)(6) guiding juris has been the star of WYNN, in Judge, dissenting Circuit forty years-“fair prudence for the last no part. 93, 127 tice to the Id. at defendant.” S.Ct. (internal part I do marks agree quotation with of the and cita omitted). Indeed, that affirms majority’s opinion the dismiss- tions Court stated McCleary-Evans’s year al of in reiterated less than a Twombly Dawnn claim against plain discriminated later that the short and because Erickson 8(a)(2) into Rule brings required her race. This case relief statement under stark only defendant fair ‘give the tension embedded “need notice grounds of what the ... claim is and the evaluating allegations ” upon (quoting which it rests.’ McCleary-Evans’s Twom complaint, however, we 1955). bly, 550 U.S. S.Ct. Nor are not sparse limited to the guidance to the longstanding has Court abandoned gleaned be from Twombly and Iqbal. requirement that judges “accept as true all 2002 the Court decided Swier allegations kiewicz, factual contained a case involving the sufficiency of complaint.” Id. at S.Ct. 2197. wrongful termination claim under Title VII. 534 U.S. S.Ct. 992. In a What recent Court’s cases have opinion unanimous authored Justice done, however, require that a plaintiff do Thomas, the Court held that “a сomplaint more than possibility raise remote in an employment discrimination lawsuit relief. The now familiar moniker for the not contain specific [need] facts establish plaintiffs “plausibility.” burden is While prima facie case of discrimination the Court’s delineation of the plausibility under the framework set forth in McDon requirement may be somewhat “opaque,” Douglas Green, nell Corp. v. 411 U.S. 792 Citibank, N.A., Swanson v. 614 F.3d (1973).” [93 36 L.Ed.2d 668] (7th Cir.2010) (Posner, dissenting), the Id. at contrary, To the given Court has lower courts a sign few plaintiff “easily 8(a)(2) satisfie[d]” Rule posts by. know, instance, to travel We when he “detailed the leading events to his required more is than “a possi sheer termination, provided dates, relevant bility that a defendant has acted unlawful “ ages included the and nationalities of at ly.” factual content to 'nudg[e]’ his claim least some the relevant persons involved of purposeful discrimination ‘across the ” his termination.” Id. at plausible.’ line from conceivable to Id. at S.Ct. 992 The Court (quoting 129 S.Ct. 1937 Twombly, 550 held that allegations “give such respondent 1955). 570, 127 fair notice of petitioner’s what claims are Yet we also know that plausibility “[t]he ‍​‌​‌‌‌​‌‌​‌​​​​‌​‌‌​​‌​​‌​‌​​​‌​‌​‌​‌‌​​‌‌​‌​‌‌‌‍grounds and the upon they which rest.” standard is not akin to a ‘probability re- later, years Id. Five the Court told us that quirement.’ Id. at 129 S.Ct. 1937. In law, good Swierkiewicz remains specifically words, other it appear need nоt from the referencing the factual plaintiffs claims are Swierkiewicz Court deemed sufficient to likely to succeed. As this recently “grounds state showing entitlement to re recognized, “[ajlthough ... the factual al- 569-70, lief.” legations a complaint must make entitle- S.Ct. 1955. ment to relief merely and not 12(b)(6) possible, what Rule does not coun- majority pays lip While service to tenance are dismissals based on a judge’s acknowledging plain- that a disbelief of a complaint’s factual allega- tiff need not a prima facie case States, tions.” McLean v. United 566 F.3d Doug- under the McDonnell (4th Cir.2009) (internal 391, 399 quotation 8(a)(2), las framework to comply with Rule marks, omitted). alterations and supra entirely citations see it ignores the Further, plausibility will not look the underpinnings same factual of the ease; in every assessing plausibility holding, is “a looking solely Supreme to the context-specific that requires task the re- in Iqbal guide Court’s 2009 decision to its viewing judicial court to draw on its expe- Iqbal, decision. a Pakistani man who rience Iqbal, and common sense.” during 556 had been detained the weeks fol- U.S. at lowing September alleged 11th attacks have, Attorney its by implication, General John cases overruled that States United (alterations Investiga Bureau of and precedent” Federаl earlier internal Ashcroft and omitted)). had tions Robert Mueller quotation Director This partic- marks is that “adopted policy here, unconstitutional where, an ularly Supreme true subjected harsh conditions of con to [him] that prior Court has said loud and clear its race, religion, of his finement on account decision has not been overruled. at origin.” or national We are confronted with two therefore decision, a five-four the Court 1937. In having apparent Supreme Court cases rel- against Iqbal’s held claims Ashcroft that to us. One evance the case before of these satisfy plead and did not federal Mueller cases, Swierkiewicz, involves Title VII acknowledging ing requirements. While his alleged employer who 9 of the Federal Rules of Civil Rule wrongfully terminated him due to his na- party pleading from Procedure “excuses other, origin. Iqbal, tional The involves a discriminatory intent under an elevated suspected alleged who terrorist that he standard,” id. pleading was to an pursuant mistreated unconstitu- Iqbal’s held that as the Court bare policy tional instituted the United sertions of Ashcroft Mueller’s discrim Attorney conjunction States General inatory purpose were entitled to Federal with Director of the Bureau of assumption of truth and the remain Investigations. I hаve little difficulty de- of failed to plausi der his state ciding greater applicability which case has 697, 129 ble claim. Id. 1937. to the run-of-the-mill discrim- apparent The tension between the ination us.2 case before Iqbal decisions Court’s Swierkiew- The adopts Seventh Circuit the view Despite icz is well-documented.1 this ten- continue guide Swierkiewicz should to sion, however, authority “we have no courts’ application of federal re overrule a Court decision no mat- quirements straightforward discrimina ter ... with how out of touch Citibank, N.A., tion cases. v. Swanson thinking Court’s current the decision Labs., Inc., plaintiff alleged that Citibank Dolby denied seems.” v. Scheiber (7th Cir.2002) J.). her lоan Afri (Posner, application because F.3d can-American in violation of Fair College See Union v. also Columbia (4th Cir.1998) Clarke, Housing F.3d at 159 F.8d Act. 402-08. that “lower courts to court concluded that the (recognizing are not satis the Twombly/Iqbal plausibility conclude that the Court’s more recent fied stan- See, e.g., McCauley City among judges Chicago, disarray 1. sion and and law- dissenting) (7th Cir.2011) (Hamilton, F.3d yers”). (“I qbal ... created tension with by endorsing holding its while Swierkiewicz Further, Judge agree I view Hamilton's simultaneously appearing require same expand Iqbal that “we take care not to must fact-specific pleading discriminatory sort highly aggressively beyond too its unusual rejected."); intent that the Swierkiewicz aimed nation's context— Baca, (9th Starr v. 652 F.3d Cir. highest-ranking law enforcement officials 2011) (“The juxtaposition of . .. Swierkiewicz unprecedented response based on ter- their hand, other, Iqbal, on ... the one on the the United rorist attacks on States home- Miller, perplexing”); Arthur R. From Con potentially land—to viable cut off claims.” ley Twombly Iqbal: Play A Double McCauley City Chicago, 671 F.3d Procedure, Federal Rules Civil 60 Duke L.J. J., (7th Cir.2011) (Hamilton, 628-29 dissent- (noting tension between Iqbal ing). has confu- "caus[ed] plaintiff dard where the identified “the Highway with the Administration were de type of discrimination that she thinks oc- nied in favor of non-African (racial), (Citibank, by whom applicants. cur[ed] American Finally, alleges Skertich, through manager, and the that based on her experience interview and (in used), appraisers outside it and when what she apparently perceived as a dis early connection her effort in criminatory history of hires within the loan).” home-equity obtain a Id. 405. Highway Administration, her played race The court plausibility held stan- role in the decision to hire non-African- through dard must be viewed the lens of American candidates over her. In this straightforward Smerkiewicz in most dis- particular context, drawing “judicial ex crimination In reaching cases. Id. perience sense,” and cоmmon Iqbal, 556 this holding, the court offered the follow- McCleary- ing illustration: Evans’s claim of race is em inently plausible.

A who believes that she has passed promotion been over for a be- I am not unmindful policy of the con cause of her sex will be able to cerns that underlie the Court’s X, employed by that she was Company in Twombly decisions Iqbal. and As offered, that a promotion was that she Judge pointed Posner out in his Swanson it, applied qualified and was for dissent, quite the Court clearly aimed to job went to someone else. That is rising curb the discovery costs of by born scenario, an entirely plausible whether facing defendants mеritless lawsuits and to or not it “really” describes what went on quell the tide of litigation” “extortionate plaintiffs this case. Swanson, country. this at 411 F.3d Id. at 404-405 Even (Posner, dissenting) (citing Frank H. East Posner, Swanson, Judge who dissented in erbrook, Abuse,” “Discovery as 69 B.U. acknowledged that though Swierkiewicz— (1989)). Indeed, L.Rev. distinguishable in his good view—remains Twombly/Iqbal plain standard incentivizes law, recognizing judges that “lower-court diligent tiffs to be more pre-litiga their are not to deem a Court decision investigations, tion thereby bringing great overruled if it plainly even inconsistent er asymmetric balance to the discovery subsequent with a decision.” at 410. may burdens that in litigation. arise Turning to McCleary-Evans’s com Yet if we are to litigation consider costs plaint, it is clear that her go (and application in the of federal beyond stan- what Swierkiewicz well-be dards, Swanson) we must take yond ignore care not to what found sufficient to 8(a)(2). costs by plaintiffs society borne satisfy Rule whole when applied contends that she meritorious discrimination positions for two Maryland prematurely with the lawsuits are Department of Trans dismissed. See Miller, portation’s supra at Highway ought forget State Administration. 61. We lays asymmetric She out in qualifi discovery immense detail her burdens are of- positions. byproduct asymmetric cations for these ten the Shе identifies informa- Highway employees Administration tion. re The district court’s decision below sponsible for denying applications, exemplifies overly the risks an posed states that both were non-African reading Twombly Ameri broad Iqbal. can. alleges She that she and other Afri district court faulted can Americans who positions failing much how control

592 Thus, majority named render employees would Swier- Highway Administration a hollow mute its pri- kiewicz shell and other in over complaint “wield[ed]” mary namely, discriminatory hiring and fail committee members of thrust — specific not be pled intent need facts.4 qualifications of the identify to Supreme But the Court Swierkiewicz It 27-28. candidates. J.A. selected judicial specifically using forbade interpre- McCleary-Ev to expect simply unrealistic limit scope holding. tation to of its facts the benefit ans such without to Indeed, Swierkiewicz, response to the discovery. When limited of some at least argument holding the Court’s would unrealistic expectations impose we by “allowing “burden courts” lawsuits lawsuit, plaintiffs pleading stage of a at the conclusory allegations based on of discrim- “judicial experience our apply we fail to go forward,” to ination highly to the “context- sense” and common Thomas, U.S. Justice per specific deсiding of whether task” Court, writing for unanimous stated that discovery. Iq proceed mit a lawsuit to requirement greater specificity of “[a] bal, At 556 U.S. claims particular is a result ‘must be litigation, of early stages Title VII by process amending obtained of conclusory allegations may be borderline Rules, by judicial Federal inter- all available even the most dili that is added) pretation.’ (quoting of gent plaintiffs. requisite proof County Leatherman Tarrant Narcotics discriminatory intent is of defendant’s Unit, Intelligence and Coordination ten in the exclusive control of the defen 163, 168-169, U.S. 113 S.Ct. dant, an by doors slammed shut behind (1993)). I L.Ed.2d 517 As far as am termination.3 unlawful aware, no to the аmendment Federal taken Rules has effect since the Court’s I must take the ma Finally, issue with ruling in that would require Swierkiewicz jority’s suggestion by “retiring” majority of specificity by the level Gibson, Conley v. “judicial interpretation” its own demands (1957), 2 L.Ed.2d 80 “no set of facts” stan McCleary-Evans. from dard U.S. at all McCleary-Evans’s Court but re Because majority’s states claim discrimination tired Swierkiewicz. Under the race, respectfully on the basis I dissent. view, remains of after what Swierkiewicz Twombly is the bare that courts holding magic

should not use the of McDon words Douglas sufficiency

nell assess the 12(b)(6) stage.

Title claims at VII pled 3. This state of affairs commenta- he has led some stances Swierkiewicz are that is Hun- argue French, pre- for a tors broadened usе of garian, others are Sorema discovery, a dismissal tool that is within the conclusory allegation termination that his See, e.g., discretion of district courts. Suz- origin motivated national discrimination. Malveaux, Heavy Loading ette M. Front [T]hese .... are insufficient aas Lifting: Discovery Ad- How Pre-Dismissal Can matter of law to raise an inference discrim- Iqbal the Detrimental on Civil dress Effect of Sorema, N.A., ination.” Cases, Rights 14 Lewis & Clark L.Rev. 65 (2d rev’d, Cir.2001) Fed.Appx. (2010). L.Ed.2d 1. That a explicitly rejected unanimous Indeed, affirming of Swierkiew- dismissal greater ‍​‌​‌‌‌​‌‌​‌​​​​‌​‌‌​​‌​​‌​‌​​​‌​‌​‌​‌‌​​‌‌​‌​‌‌‌‍spec- the Second Circuit’s demand for claim, origin national icz!'s ignored. ificity be cannot stated, only Circuit circum- Second "the

Case Details

Case Name: McCleary-Evans v. Maryland Department of Transportation, State Highway Administration

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 13, 2015

Citation: 780 F.3d 582

Docket Number: 13-2488

Court Abbreviation: 4th Cir.