i    

No. 14-0489

_______________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_______________________________

CHUCK DUNCAN

Petitioner,

v.

BIGMART, INC.,

Respondent.

_______________________________

On Writ of Certiorari to the United States Court Of Appeals for the Twelfth Circuit

_______________________________

BRIEF FOR PETITIONER

_______________________________

Team 713 Attorneys for Petitioner

Citation Manual Used:

The Bluebook

Regional City: Boston

 

i    

TABLE OF CONTENTS

Page TABLE OF AUTHORITIES......................................................................................................... iv JURISDICTIONAL STATEMENT…………………………………………………………...… 1 STANDARD OF REVIEW…………………………………………………………………….... 1 STATEMENT OF THE ISSUES…………………………………………………………....…... 1 STATEMENT OF THE CASE……………………………………………………………...…… 2 STATEMENT OF THE FACTS .................................................................................................... 3 SUMMARY OF THE ARGUMENT ............................................................................................. 6 ARGUMENT AND AUTHORITIES............................................................................................. 8 I. RESPONDENT’S 12(B)(6) MOTION TO DISMISS IS NOT REVIEWABLE

AFTER A FULL TRIAL ON THE MERITS……………………………………………. 8

A. The Twelfth Circuit Lacked the Authority to Review and Reverse the District Court’s Order Denying Respondent’s 12(b)(6) Motion to Dismiss……………… 8

1. The Federal Rules of Civil Procedure must be interpreted liberally to

facilitate the truth seeking function of the courts……………………….…........ 9

2. A full trial on the merits renders the sufficiency of the pleadings moot because pleadings may be liberally amended even after trial ………….. 10

3. A Rule 50 motion is the proper vehicle for reviewing arguments

raised during the motion to dismiss stage…………………………………….. 12

B. The Twelfth Circuit Improperly Compared a 12(b)(6) Motions to Motions for Summary Judgment in Holding that a Motion to Dismiss Raising a Purely Legal Issue is Reviewable After a Full Trial on the Merits.................................................................................................................... 14

1. This Court explicitly held that summary judgment motions are not

reviewable after a full trial on the merits……………………………………... 14

2. Respondent’s 12(b)(6) motion is not reviewable under any interpretation of Ortiz ………………………………………………………… 15

 

ii    

a. The correct interpretation of Ortiz recognizes summary judgment motions may not be reviewed after trial……………………….. 16

b. The other interpretation of Ortiz permits review after trial

only of summary judgment motions raising purely legal issues……………………………………………………………………… 16

c. Respondent’s 12(b)(6) motion failed to raise a purely legal issue……………………………………………………………………….. 17

C. Respondent’s 12(b)(6) Motion did not Meet the Requirements for

Immediate Appeal………………………………………………………………. 19

1. The district court had no obligation to certify for interlocutory review its order denying Respondent’s motion to dismiss…………………………… 19

2. The Twelfth Circuit improperly compared Respondent’s 12(b)(6) motion

to the motion to dismiss in Iqbal……………………………………………… 21 II. THE TWELFTH CIRCUIT APPLIED AN INCORRECT PLEADING STANDARD IN GRANTING RESPONDENT’S MOTION TO DISMISS………….. 22

A. The Twelfth Circuit Had Neither the Authority Nor the Merit to Overrule Swierkiewicz………………………………………………………….. 25

1. Only this Court may overrule one of its prior holdings…………………….. 25

2. The Twelfth Circuit failed to establish an adequate basis for overruling

Swierkiewicz………………………………………………………………... 28

B. The Vast Majority of Circuit Courts Reject the Twelfth Circuit’s Reasoning and Instead Recognize that this Court neither Explicitly nor Implicitly Overruled Swierkiewicz………………………………………………………… 29

1. The straightforward claim standard provides a workable, bright-line

test for determining whether a complaint is plausible on its face…………... 30

2. The majority standard also provides a workable test for determining whether a complaint is plausible on its face…………………………....…... 31

C. Duncan Alleged Facts Sufficient to Establish a Facially Plausible Claim of Employment Discrimination under Each of the Circuit Court Standards…….… 32 1. Duncan’s complaint met the straightforward claim standard of facial

plausibility…………………………………………………………………... 33

2. Duncan’s complaint met the majority standard of facial plausibility…………....................................................................................... 34

 

iii    

a. Duncan pled facts supporting the inference that he could meet the first prima facie element………………………………………………... 35

b. Duncan pled facts supporting the inference that he could meet the

second prima facie element……………………………………………... 36

c. Duncan pled facts supporting the inference that he could meet the third prima facie element……………………………………………….. 36

3. Duncan’s complaint met the Twelfth Circuit’s standard of facial

plausibility…………………………………………………………………... 38

CONCLUSION…………………………………………………………………………………. 41

 

iv    

TABLE OF AUTHORITIES Cases

Agostini v. Felton, 521 U.S. 203 (1997)…………………………………………………………………….. 25 Al-Khazraji v. Saint Francis Coll., 784 F.2d 505 (3d Cir. 1986)…………………………………………………………….. 23 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)………………………………………………………………... passim Bennett v. Pippin, 74 F.3d 578 (5th Cir. 1996)…………………………………………………….. 11, 12, 15 Chambers v. TRM Copy Centers Corp., 43 F.3d 29 (2d Cir. 1994)………………………………………………………………. 37 Chesapeake Paper Products Co. v. Stone & Webster Engineering Corp., 51 F.3d 1229, (4th Cir. 1995) …………………………………………………………. 16 ClearOne Commc’ns. Inc. v. Biamp Sys., 653 F.3d 1163 (10th Cir. 2011)……………………………………………………. passim Conley v. Gibson, 355 U.S. 40 (1957)……………………………………………………………… 23, 27, 28    Cooney v. Rossiter,   583 F.3d 967 (7th Cir. 2009)…………………………………………………………… 30    Dister v. Cont'l Grp., Inc.,   859 F.2d 1108 (2d Cir. 1988)…………………………………………………………… 37    Elusta v. Rubio,   418 F. App‘x 552 (7th Cir. 2011). ………………………………………12, 13, 14, 15, 16    Estabrook v. Safety & Ecology Corp.,   556 F. App'x 152 (3d Cir. 2014)……………………………………………………. 28, 29    Foman v. Davis,   371 U.S. 178 (1962).…………………………………………………………... 8, 9, 10, 13    Fowler v. UPMC Shadyside,   578 F.3d 203 (3d Cir. 2009)…………………………………………………….. 27, 28, 39      

 

v    

Francis v. Giacomelli,   588 F.3d 186 (4th Cir. 2009)……………………………………………………….. 28, 40    Harlow v. Fitzgerald,   457 U.S. 800 (1982).…………………………………………………………………… 21    Iadimarco v. Runyon,   190 F.3d 151 (3d Cir. 1999)…………………………………………………………… 35    In re Ins. Brokerage Antitrust Litig.,   618 F.3d 300 (3d Cir. 2010)…………………………………………………………… 28    Johnson v. Jones,   515 U.S. 304 (1995).……………………………………………………………. 19, 20, 21    Kasten v. Ford Motor Co.,   No. 09-11754, 2009 WL 3628012, at *7 (E.D. Mich. Oct. 30, 2009) …………………. 34 Kay v. United of Omaha Life Ins. Co., 562 F. App'x 380 (6th Cir. 2014).………………………………………………. 17, 18, 20 Kenfield v. Colorado Dep't of Pub. Health & Env't, 557 F. App'x 731 (10th Cir. 2014)………………………………………………….. 22, 24 Keys v. Humana, Inc., 684 F.3d 605 (6th Cir. 2012)……………………………………………………….. 32, 37 Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012)………………………………………………………… 31    Lindsay v. Yates,   498 F.3d 434 (6th Cir. 2007)…………………………………………………… 28, 26, 38 Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014 (7th Cir. 2013)………………………………………………….. 28, 26, 38 Mayale-Eke v. Merrill Lynch, 754 F. Supp. 2d 372 (D.R.I. 2010) …………………………………………….. 28, 26, 38 Mallinckrodt Chemical Works v. Goldman, Sachs & Co., 58 F.R.D. 348 (S.D.N.Y. 1973) …………………………………………………………. 9 Mitchell v. City of Wichita, Kansas, 140 F. App'x 767 (10th Cir. 2005)………………………………………………….. 35, 36

 

vi    

Mitchell v. Forsyth, 472 U.S. 511 (1985)………………………………………………………………… 16, 19    McCauley v. City of Chicago,   671 F.3d 611 (7th Cir. 2011)…………………………………………………………… 30  McCone v. Pitney Bowes, Inc.,   No. 14-11119, 2014 WL 4377868, at *3 (11th Cir. Sept. 5, 2014)………………... 28, 36 McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976)…………………………………………………………………….. 23    Nikolic v. St. Catherine Hosp.,   No. 2:10 CV 306, 2011 WL 4537911, at *3 (N.D.Ind. Sept. 28, 2011)………... 30, 33, 34    Oquendo v. Bettcher Industires,   939 F. Supp 357 (D.N.J. 1996).………………………………………………………… 10    Ortiz v. Jordan,   131 S. Ct. 884 (2011).……………………………………………………………… passim    Patane v. Clark,   508 F.3d 106 (2d Cir. 2007)………………………………………………………….. 1, 36 Payne v. Tennessee, 501 U.S. 808 (1991)………………………………………………………………….. 1, 36 Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008)…………………………………………………….. 32, 34 Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477 (1989)…………………………………………………………………….. 26    Rodriguez-Reyes v. Molina-Rodriguez,   711 F.3d 49 (1st Cir. 2013) ………………………………………………………... passim    Ronzani v. Sanofi S.A.,   899 F.2d 195 (2d Cir. 1990)………………………………………………………… 10, 11    Rouse v. Berry,   680 F. Supp. 2d 233 (D.D.C. 2010)………………………………………………… 30, 31    Rulye v. Continental Oil Co.,   44 F.3d 837 (10th Cir. 1994).…………………………………………………………... 17      

 

vii    

Ryther v. KARE 11,   108 F.3d 832 (8th Cir.1997)……………………………………………………………. 37    Sackman v. Liggett Grp., Inc.,   173 F.R.D. 358 (E.D.N.Y. 1997)…………………………………………………….. 9, 10    Saucier v. Katz,   533 U.S. 194 (2001).……………………………………………………………………. 21    Schwab v. Smalls,   435 F. App'x 37 (2d Cir. 2011)…………………………………………………………. 37  Sheppard v. David Evans & Assoc.,   694 F.3d 1045 (9th Cir. 2012)………………………………………………………….. 30 State Oil Co. v. Khan, 522 U.S. 3 (1997)……………………………………………………………………….. 25    Stone v. Louisiana Dep't of Revenue,   No. 14-30204, 2014 WL 5654307, at *6 (5th Cir. Nov. 5, 2014) …………………. 29, 36 Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966)………………………………………………………………….. 9, 13 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)………………………………………………………………... passim Twombly v. Bell Atl. Corp, 313 F. Supp. 2d 174 (S.D.N.Y. 2003)……………………………………………... passim In re Yadidi, 274 B.R. 843 (B.A.P. 9th Cir. 2002).…………………………………………………... 11 Statutes and Rules 42 U.S.C. § 2000e-2………………………………..………………………………..………….. 22 Fed. R. Civ. P. 8……………………………………………………………………………. passim Fed. R. Civ. P. 12…………………………………………………………………………... passim Fed. R. Civ. P. 15…………………………………………………………………….. 8, 10, 11, 13 Fed. R. Civ. P. 50…………………………………………………………………………... passim Fed. R. Civ. P. 56………………………………………………………………................... passim

 

viii    

Other Authorities A C. Wright, A. Miller, & E. Cooper,

Federal Practice & Procedure § 3914. 10, p. 684 (2d ed. 1992 and Supp. (2010)…………………… ………………... 14

Andrew Blair-Stanek,

Twombly Is the Logical Extension of the Mathews v. Eldridge Test to Discovery, 62 Fla. L. Rev. 1 (2010).………………………………………………………………... 27

Charles A. Sullivan, Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1631 (2011) …………………………………………………. 39

Suja A. Thomas, Oddball Iqbal and Twombly and Employment Discrimination, 2011 U. Ill. L. Rev. 215, 227 (2011) …………………………………………………… 28

Thomas A. Reuland,

Rule 15: A Limited Safety Net for 12(b)(6) Dismissal After Iqbal, 96 Iowa L. Rev. 1403 (2011)…………………………………………………………… 11

 

1    

JURISDICTIONAL STATEMENT

The United States District Court for the District of Kansahoma had jurisdiction in this

matter pursuant to 42 U.S.C. § 2000e-5(f)(3) (2013), which grants jurisdiction over claims

arising under Title VII of the Civil Rights Act. The district court entered its final judgment on

December 13, 2013. J.A. 22. On January 2, 2014, Respondent Bigmart, Inc. timely filed a notice

of appeal. J.A. 23.

The United States Court of Appeals for the Twelfth Circuit had jurisdiction in this matter

pursuant to 28 U.S.C. § 1291 (2013), which grants jurisdiction over all final district court

decisions. The Twelfth Circuit issued its opinion on October 15, 2014. R. 2. Petitioner Clark

Duncan filed a timely petition for writ of certiorari, which this Court granted on November 20,

2014.

This Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1254(1) (2013), which

confers jurisdiction over petitions for which certiorari has been granted.

STANDARD OF REVIEW

This Court reviews de novo a lower court's ruling on a motion to dismiss for failure to

state a claim under Rule 12(b)(6). Patane v. Clark, 508 F.3d 106, 111 (2d Cir. 2007).

STATEMENT OF THE ISSUES

I. Whether a court has the authority to review a 12(b)(6) motion to dismiss attacking the

factual sufficiency of a plaintiff’s complaint after the plaintiff prevailed at trial.

II. Whether this Court implicitly overruled Swierkiewicz and therefore changed the

applicable pleading standard to a straightforward employment discrimination claim.

 

2    

STATEMENT OF THE CASE

This appeal asks this Court to determine (1) whether a Rule 12(b)(6) motion to dismiss

for failure to state a claim is reviewable after a full trial on the merits; and (2) what pleading

standard applies to a Title VII employment discrimination claim.

Petitioner Chuck Duncan (“Duncan”) filed a complaint against Respondent Bigmart, Inc.

(“Respondent”) in the United States District Court for the District of Kansahoma. R. 4. Duncan

alleged that Respondent violated his civil rights under Title VII of the Civil Rights Act by firing

Duncan because of his race. J.A. 4. Respondent moved under Rule 12(b)(6) to dismiss the

complaint for failure to state a plausible claim. R. 4. The district court denied Respondent's

motion to dismiss. J.A. 9. Respondent was unable to secure interlocutory review of this decision.

J.A. 9-21. The case proceeded to trial, where the jury found for Duncan in the amount of

$300,000. J.A. 22. The district court entered final judgment on December 16, 2013. J.A. 22.

A three-judge panel of the United States Court of Appeals for the Twelfth Circuit

reversed. R. 3. Chief Judge Snyder delivered the opinion of the 2-1 majority. R. 2. The majority

held that a motion to dismiss is reviewable even after an unfavorable jury verdict. R. 12. The

majority further held that Duncan failed to plead facts sufficient to establish a facially plausible

claim of employment discrimination. R. 16. The court reversed the jury verdict and remanded the

case for judgment entered in favor of Respondent. R. 16.

Judge Hill authored the dissenting opinion, disagreeing with the majority on both issues.

R. 16. Judge Hill reasoned that the denial of a motion to dismiss is not reviewable after a full

trial on the merits. R. 16. Judge Hill further argued that, even if pre-trial motion were reviewable

after a trial, Duncan’s complaint plead sufficient facts as required by Rule 8. R. 18.

 

3    

Duncan timely appealed the decision, and on November 20, 2014, this court issued a writ

of certiorari. R. 1. Duncan respectfully requests that this Court reverse the decision of the

Twelfth Circuit below and find, on de novo review, that a motion to dismiss for failure to state a

claim is not reviewable after trial. Further Duncan requests that this Court hold that the Twelfth

Circuit misapplied the pleading standard for an employment discrimination claim and thus erred

by granting Respondent's motion to dismiss.

STATEMENT OF THE FACTS

On August 1, 2012, Respondent fired Duncan, who worked at its Kansahoma distribution

center. R. 3. Respondent operates a nationwide chain of retail stores with multiple distribution

centers. J.A. 2. Duncan worked for Respondent for twenty-two years. J.A. 4. When Duncan was

first hired in 1990, ten other employees worked at the distribution center. J.A. 3. Though the

distribution center now employs approximately twenty individuals, Duncan was the only white

employee up until his dismissal. J.A. 3, 4. The other nineteen employees were either African

American or Hispanic. J.A. 4.

On January 1, 2012, Samuel Turner (“Turner”) assumed managerial responsibility of the

distribution center. R. 3. Turner previously held the same position in Palm Springs, California. R.

3. Turner is African-American. R. 3. Turner alone made the decision to fire Duncan. R. 3.

Duncan was treated differently than other employees because of his race. R. 3-5. Some

manifestations of this discrimination were minor. For example, the other employees refused to

let Duncan pick which radio station to listen to at work. J.A. 4. Unbeknownst to Duncan,

however, his manager and other employees often called him derogatory names behind his back.

R. 4-5. Turner not only used racial epithets to describe Duncan, but he also often told jokes

mocking white people. R. 5.

 

4    

Turner's only explanation for firing Duncan was that Duncan was not a “good fit” on the

team. J.A. 4. Again, Duncan worked at this distribution center for twenty-two years. J.A. 4.

Turner did not give any indication that he fired Duncan for poor job performance. J.A. 4. Duncan

received marks of either “good” or “adequate” in all categories in his final performance review

in July, 2012, mere days before his dismissal. J.A. 4.

Furthermore, while Turner was working at the Palm Springs distribution center, he fired

every white employee. R. 5. Now that Turner has fired Duncan, he has terminated every white

employee who has ever worked under his supervision. R. 4-5. Duncan was unaware of Turner's

discriminatory history until and use of racial epithets until after the instant case proceeded to

discovery. R. 5.

After Duncan was terminated, he turned to the Equal Employment Opportunity

Commission for guidance (“EEOC”). On March 13, 2013, the EEOC permitted Duncan to file an

employment discrimination claim. J.A. 3. On April 1, 2013, Duncan filed a complaint in the

United States District Court for the District of Kansahoma alleging unlawful employment

discrimination under Title VII. J.A. 2-5.

Duncan's complaint alleged that he had been employed by Respondent for twenty-two

years but was the only white employee in the distribution center. J.A. 4. Duncan indicated that

the other nineteen employees were either African American or Hispanic. J.A. 4. Duncan also

pled that he had numerous disputes with the other employees and Turner. J.A. 4. Further, Duncan

stated that he adequately performed his employment duties, and attached the positive

performance review from July, 2012. R. 4. Duncan alleged he therefore had reason to believe

that Turner fired him because of his color. J.A. 4.

In response, Respondent filed a Rule 12(b)(6) motion for failure to state a claim. J.A. 6-8.

 

5    

Respondent argued that Duncan failed to provide any direct evidence of discrimination. J.A. 8.

Respondent conceded that Duncan's allegations were consistent with discrimination, but

suggested that Duncan was engaged on a “fishing expedition.” J.A. 8. The district court denied

Respondent's motion, finding that Duncan's complaint established a plausible scenario of

employment discrimination. R. 4; J.A. 9.

Respondent then filed a motion to amend and certify that order for interlocutory review

under 28 U.S.C. § 1292(b). R. 4; JA 10. Respondent argued that the controlling issues involved

questions of law that, if answered in Respondent's favor, would warrant dismissal of Duncan's

complaint. J.A. 10. Respondent requested that the district court amend its order denying

Respondent's motion to dismiss and state the conditions necessary for interlocutory review by the

Twelfth Circuit Court of Appeals. J.A. 10. The district court denied Respondent’s motion. J.A.

11.

Respondent then filed a petition for mandamus relief to the Twelfth Circuit. J.A. 12-18.

The Twelfth Circuit denied the motion, explaining that (1) the court lacked the authority to

amend the district court's order denying certification for appellate review; (2) the denial of a

motion to dismiss is not an “extraordinary situation” requiring mandamus relief; and (3) the

district court did not engage in “unprincipled” decision-making. J.A. 21. The parties proceeded

to trial.

During discovery, Duncan uncovered various evidence to support his claim that he was

fired because of his race. R. 5. Multiple employees testified that Turner used racial epithets to

describe Duncan. R. 5. These employees also testified that Turner frequently told jokes mocking

white people. R. 5. Some employees testified that Duncan was difficult to work with. R. 5.

Discovery also revealed that some of Duncan's past performance reviews were not up to par. R.

 

6    

5. Most importantly, however, Duncan learned of Turner's discriminatory past. R. 5. Again,

Turner has fired every white employee who has ever worked for him. R. 5.

At trial, Respondent filed a Rule 50 motion for a judgment as a matter of law after

Duncan finished his case in chief. R. 5. Respondent did not argue that Duncan failed to present

evidence to support his claim. R. 5. Rather, Respondent argued that the court erred by denying

Respondent's motion to dismiss. R. 5. The judge denied Respondent's Rule 50 motion, and

Respondent went on to present its defense. R. 5.

The case was submitted to the jury. R. 5. The jury ruled for Duncan, awarding him

$300,000 in damages. R. 5.

SUMMARY OF THE ARGUMENT

I. A 12(b)(6) motion is not reviewable after a full trial on the merits. No case law exists

which allows an appellate court to review a motion to dismiss after a full trial because at this

point the complaint’s factual sufficiency is moot. Duncan can simply amend his complaint to

conform to the evidence presented at trial. Accordingly, the proper avenue to seek review of

arguments raised at the motion to dismiss stage is through an appeal of a Rule 50 motion.

Further, the Twelfth Circuit improperly applied an exception created for summary

judgment motions to motions to dismiss. Circuits have created an exception permitting review

after trial of summary judgment motions presenting purely legal issues. Notably, circuits that

apply this exception have refrained from applying it to motions to dismiss. Even if this Court

were to apply this exception to motions to dismiss, Respondent’s 12(b)(6) motion failed to raise

a purely legal issue.

Finally, the Twelfth circuit erred in comparing Respondent’s 12(b)(6) motion to the

motion in Iqbal. The motion to dismiss in Iqbal was intertwined with a pure issue of law, which

 

7    

allowed this Court to review the complaints factual sufficiency. Respondent’s motion, on the

other hand, was not intertwined to any such issue and accordingly is not comparable. Thus, this

Court should reverse the Twelfth Circuit and hold that motions to dismiss are not reviewable

after a full trial on the merit.

II. The Twelfth Circuit erred by declaring Swierkiewicz overruled and adopting a

pleading standard based on that interpretation. This Court has made clear that a circuit court may

not overrule this Court's precedent. Even if the Twelfth Circuit had that authority, it improperly

determined that Iqbal and Swierkiewicz reached conflicting results. Thus, the Twelfth Circuit

applied an unworkable definition of facial plausibility and improperly granted Respondent's

motion to dismiss.

Accordingly, the vast majority of circuit courts reject the Twelfth Circuit's interpretation,

instead recognizing the viability of Swierkiewicz in light of Iqbal. These circuits have developed

two workable definitions of facial plausibility. Three circuits apply a “straightforward claim”

approach, under which a complaint is facially plausible where it alleges (1) the type of

discrimination; (2) by whom; and (3) when the discrimination occurred. This Court should adopt

this standard because it is a bright-line test for determining whether a complaint is plausible.

Alternatively, this Court should adopt the approach applied by the majority of circuit

courts. This standard requires the court to determine whether the complaint creates a reasonable

inference that the plaintiff will establish each prima facie element at trial. In other words, the

more closely a plaintiff's complaint tracks these elements, the more likely the complaint

establishes a plausible scenario of employment discrimination. This standard is likewise

appropriate because it keeps Swierkiewicz intact and provides guidance to courts and litigants.

 

8    

Under any of these three interpretations, Duncan alleged facts sufficient to establish a

facially plausible claim of employment discrimination. Therefore, this Court should reverse the

Twelfth Circuit's decisions and reinstate the jury verdict in favor of Duncan.

ARGUMENT

I. RESPONDENT’S 12(B)(6) MOTION TO DISMISS IS NOT REVIEWABLE AFTER A FULL TRIAL ON THE MERITS.

This Court should reverse the Twelfth Circuit’s decision because the court erred by

reviewing Respondent’s motion to dismiss after a full trial. No other circuit courts are willing to

review a motion to dismiss under these circumstances. See, e.g., ClearOne Commc’ns. Inc. v.

Biamp Sys., 653 F.3d 1163, 1172 (10th Cir. 2011). While some circuits recognize an exception

allowing review of summary judgment motions after trial, that exception has not been applied to

motions to dismiss. See id. Even if this Court applies that exception to motions to dismiss,

Respondent's motion does not qualify for that exception. Further, Respondent's motion did not to

meet the requirements for interlocutory review. Accordingly, the factual sufficiency of Duncan's

complaint at this stage is moot.

A. The Twelfth Circuit Lacked the Authority to Review and Reverse the District Court’s Order Denying Respondent’s 12(b)(6) Motion.

A 12(b)(6) motion to dismiss is not reviewable after a full trial on the merits. Courts must

liberally interpret the Federal Rules of Civil Procedure (“the Rules”) to further the truth seeking

function of the courts. Foman v. Davis, 371 U.S. 178, 181-82 (1962). Rule 15 provides an

example of this liberal interpretation by allowing for a party to amend his pleadings after trial.

Fed. R. Civ. P. 15. Given the flexibility of pleadings, the circuits are in general agreement that, in

order to review arguments raised in pleadings, a party must raise and subsequently appeal a Rule

50 motion. See, e.g., ClearOne, 653 F.3d at 1172. Under Rule 50, the court looks to the

 

9    

sufficiency of a party's argument in light of all the evidence presented at trial. See id. Thus,

neither the Rules nor case law allow for an appellate court to review a motion to dismiss after a

jury verdict.

1. The Federal Rules of Civil Procedure must be interpreted liberally to facilitate the truth seeking function of the courts.

The Twelfth Circuit inhibited its truth seeking function by ignoring facts proven at trial in

favor of a perceived factual deficiency in Duncan's complaint. “It is entirely contrary to the spirit

of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of

mere technicalities.” Foman, 371 U.S. at 181-82. The Rules are designed to “administer justice

through fair trials, not through summary dismissals.” Surowitz v. Hilton Hotels Corp., 383 U.S.

363, 373 (1966). The Rules thus allow parties to avoid “old procedural booby traps which

common-law pleaders could set to prevent unsophisticated litigants from ever having their day in

court.” Id. This interpretation rightfully allows access to discovery to be accorded high priority in

weighing the respective interests of the parties to the action. Sackman v. Liggett Grp., Inc., 173

F.R.D. 358, 361 (E.D.N.Y. 1997) (“The purpose of discovery is to 'provide both parties with

information essential to proper litigation of all the facts.'”) (quoting Mallinckrodt Chemical

Works v. Goldman, Sachs & Co., 58 F.R.D. 348, 353 (S.D.N.Y. 1973)).

In particular, “Rule 8 marks a notable and generous departure from the hyper-technical,

code-pleading regime of a prior era.” Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). While Twombly heightened the pleading standard, it did

not change the liberal interpretation of the Rules. The court may grant a 12(b)(6) motion only if

the complaint fails to contain any “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) (quoting

Twombly, 550 U.S. at 570). While the Rule does not allow plaintiffs with bare-bone, conclusory

 

10    

statements to proceed to discovery, it “does not require ‘detailed factual allegations.’” Id.

(quoting Twombly, 550 U.S. at 570). Thus, the Rules are designed to further the truth seeking

function of the courts, not to reverse decisions on the merits in favor of procedural technicalities.

See Foman, 371 U.S. at 181-82.

In the instant case, Duncan has done more than plead bare-bone, conclusory allegations.

Rather, Duncan pled “a short and plain statement of the claim showing that [he] is entitled to

relief.” See Fed. R. Civ. P. 8; J.A. 2-5. Twombly does not require Duncan to prove his case at the

pleading stage. See 550 U.S. at 570. Like most plaintiffs, Duncan required access to discovery in

order to gather evidence sufficient to prove his case. See Sackman, 173 F.R.D. at 361; R. 5. The

Rules take this problem into consideration by rejecting the once very technical standard, and

replacing it with the more liberal, current standard. Fed. R. Civ. P. 8. Therefore, the Rules must

be viewed in light of their history and instances of injustice that they were designed to prevent,

such as Respondent deliberately shielding the truth from the court by hiding behind procedural

technicalities. See Forman, 371 U.S. at 181-82.

2. A full trial on the merits renders the sufficiency of the pleadings moot because pleadings may be liberally amended even after trial.

Rule 15 explicitly permits the plaintiff to amend his or her complaint before, during, and

after trial. Fed. R. Civ. P. 15. The Rule is thus designed to encourage judges to freely grant leave

to amend “when justice so requires.” Id. When the court grants a motion to dismiss, “the usual

practice is to grant leave to amend the complaint.” Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d

Cir. 1990) (citation omitted). While district courts are afforded some discretion to deny leave to

amend, that discretion is circumscribed by the liberal amendment philosophy behind the rule.

Oquendo v. Bettcher Industires, 939 F. Supp 357, 360 (D.N.J. 1996). “Accordingly, even when a

party's ability to plead successfully no longer involves a liberal interpretation of Rule 8, the

 

11    

party's ability to amend must still involve a liberal interpretation of Rule 15.” Thomas A.

Reuland, Rule 15: A Limited Safety Net for 12(b)(6) Dismissal After Iqbal, 96 Iowa L. Rev.

1403, 1423 (2011). Therefore, courts should view pleadings as flexible, amendable documents,

rather than being fixed at the time of filing.

Given the flexibility of pleadings, the circuits generally agree that the denial of a motion

is dismiss is not reviewable after a trial on the merits. See, e.g., Bennett v. Pippin, 74 F.3d 578,

585 (5th Cir. 1996). Once a case proceeds to trial, “what was actually litigated takes precedence

over” the allegations in the pleadings. In re Yadidi, 274 B.R. 843, 852 (B.A.P. 9th Cir. 2002). If

the plaintiff's complaint is in any respect deficient, a full trial on the merits renders irrelevant that

deficiency. Id. Essentially, after the plaintiff has prevailed at trial a “district court's denial of a

Rule 12(b)(6) dismissal becomes moot.” Bennett, 74 F.3d at 585. Therefore, focusing solely on

the pleadings at the expense of facts actually proven at trial runs contrary to the idea of

fundamental fairness in our system of justice. See id.

Assuming the decision to grant Respondent's motion to dismiss stands, Duncan can likely

amend his complaint to conform the evidence presented at trial. See Fed. R. Civ. P. 15. While

Duncan must first request leave to amend, leave is often granted after the court grants a motion

to dismiss because of the liberal philosophy behind the rule. See Ronzani, 899 F.2d at 198.

Judicial economy would be inhibited, and resources, time, and energy wasted, by beginning a

new trial after Duncan amends his original complaint. See id. Thus, reviewing Duncan’s

complaint for factual sufficiency at this stage is highly impractical.

Additionally, review of Duncan’s complaint is especially unjust because he already

prevailed at trial. R. 5. Duncan not only alleged sufficient facts, he proved by a preponderance of

the evidence that Respondent fired him because of his race. See In re Yadidi 274 B.R. at 852; R.

 

12    

5. If Duncan's complaint contained any gaps, Duncan clearly filled those gaps during trial. R. 5.

The trial judge and jury, looking at the evidence presented by both sides, ruled for Duncan in the

amount of $300,000. R. 5. Respondent does not contest this result, but only raises the argument

that the complaint should have been dismissed before trial. R. 11. Accordingly, Respondent’s

argument is moot. See Bennett, 74 F.3d at 585. Since Duncan’s complaint is amendable, and he

has proven his case at trial, there exists no basis for this Court to review the factual sufficiently

of Duncan’s complaint.

3. A Rule 50 motion is the proper vehicle for reviewing arguments raised during the motion to dismiss stage.

Once this case proceeded to trial, the Twelfth Circuit should have focused only on

Respondent’s Rule 50 motion for judgment as matter of law. The circuits unanimously agree that

review of a Rule 50 motion is the proper avenue for a party to seeking review of arguments

presented in a motion to dismiss. See, e.g., ClearOne, 653 F.3d at 1172. As stated by the Tenth

Circuit, “a defendant may not, after a plaintiff has prevailed at trial, appeal the pretrial denial of a

Rule 12(b)(6) motion to dismiss, but must instead challenge the legal sufficiency of the

plaintiff’s claim through a motion for judgment as a matter of law.” Id. It reasoned that Rule 50

is the appropriate recourse because it allows an appellate court to review not only the factual

sufficiency of the pleading, but also the full record developed at trial. Id.

In appealing a Rule 50 motion, it is not enough that the party argues solely the court

should have granted its pretrial motion. Elusta v. Rubio, 418 F. App‘x 552, 554-55 (7th Cir.

2011). In Elusta, the defendant sought review of a summary judgment motion after a trial. Id. at

554. The defendant’s brief emphasized that he sought the review only of the question “whether

the evidence submitted before trial was sufficient to withstand summary judgment.” Id.

(emphasis in original). The court concluded that “the only question that properly could be before

 

13    

us is whether, in light of the evidence presented at trial, the district court erred by denying

[defendant’s] motions under Rule 50. But [defendant] has not asked us to underrate such a

review.” Id. Accordingly, a party cannot try to separate and select only the favorable parts of the

record for review, and instead, must seek review of the full record. See id.

In the instant case, even though Respondent filed a Rule 50 motion, the Twelfth Circuit

reviewed Respondent’s motion to dismiss only in light of the allegations in Duncan's complaint.

R. 3. Similar to the defendant in Elusta, Respondent requested the court to look only at the

pretrial evidence, instead of taking into account facts actually litigated at trial. See 418 F. App‘x

at 554-55. Since Respondent failed to raise the appropriate issue, this Court is powerless to

review the sufficiency of any pretrial motion. See id.

Allowing review of Respondent’s motion to dismiss goes completely against the spirit of

the Rules by affording Respondent an opportunity to win solely on a procedural technicality. See

Foman, 371 U.S. at 181-82. The Rules were designed to facilitate the settlement of disputes

through a trial on the merits. Surowitz, 383 U.S. at 373. However, review of Respondent’s

motion to dismiss encourages this Court to ignore trial evidence after the creation of a full

record. Further, if this Court affirms the decision to grant Respondent's motion to dismiss,

Duncan can simply amend his complaint to reflect the disputed facts now contained in the full

record. See Fed. R. Civ. P. 15. Respondent, in seeking review only of the pretrial evidence, has

failed to raise the proper issue. See Elusta, 418 F. App‘x at 554-55. Therefore, the Twelfth

Circuit erred in reviewing Respondent’s motion to dismiss.

 

14    

B. The Twelfth Circuit Improperly Compared a 12(b)(6) Motions to Motions for Summary Judgment in Holding that a Motion to Dismiss Raising a Purely Legal Issue is Reviewable After a Full Trial on the Merits.

The Twelfth Circuit unprecedentedly applied a narrow exception for reviewing summary

judgment motions to Respondent's motion to dismiss. This Court explicitly held that motions for

summary judgment are not reviewable after a full trial on the merits. Ortiz v. Jordan, 131 S. Ct.

884, 888-89 (2011). Accordingly, most circuits hold that no exception exists to this Court's

precedent on this issue. See, e.g., Elusta, 418 F. App'x at 554-55. However, other circuits

recognize a narrow exception for summary judgment motions that present a purely legal issue,

relying on dicta from Ortiz. See, e.g., ClearOne, 653 F.3d at 1172. Even if this Court recognizes

such an exception for motions to dismiss, Respondent nevertheless has failed to raise a purely

legal issue and thus, its motion is not reviewable.

1. This Court explicitly held that summary judgment motions are not reviewable after a full trial on the merits.

The Twelfth Circuit failed to appreciate that motions to dismiss, like motions for

summary judgment, are not reviewable after a full trial. See Ortiz, 131 S. Ct. at 888-89. In Ortiz,

the defendants raised qualified immunity as a defense in moving for summary judgment. Id. at

888. This Court reversed, explaining that “once the case proceeds to trial, the full record

developed in court supersedes the record existing at the time of the motion.” Id. at 889. Thus,

while a defendant can continue to raise affirmative defenses, those defenses must be “determined

by the trial record, not the pleadings nor the summary judgment record.” Id. (quoting A C.

Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 3914. 10, p. 684 (2d ed. 1992

and Supp. 2010) (emphasis supplied)).

Motions to dismiss are less amenable to review after trial than are motions for summary

 

15    

judgment. The two are similar in some respects: both motions are made before trial and ask a

judge to determine whether trial is necessary. See Fed. R. Civ. P. 12, 56. However, there are key

differences between the two that render review of a motion to dismiss even less reasonable. First,

a motion to dismiss can be made in response to a pleading and thus the judge has only the

complaint to review. Fed. R. Civ. P. 12. Motions for summary judgment, on the other hand, are

made after discovery so the judge can review not only the pleadings but also depositions and all

other relevant evidence. Fed. R. Civ. P. 56. Thus, review of a motion for summary judgment

provides the court with significantly more information to help fulfill the court’s truth seeking

function than does a motion to dismiss. Second, unlike depositions and evidentiary records,

pleadings are subject to amendment. Bennett, 74 F.3d at 585. Therefore, the reasons for which

this Court is unwilling to review a motion for summary judgment after trial are even more

applicable to a motion to dismiss under the same circumstances. See Ortiz, 131 S. Ct. at 888-89;

Bennett, 74 F.3d at 585.

2. Respondent’s 12(b)(6) motion is not reviewable under any interpretation of Ortiz.

The Twelfth Circuit adopted a flawed interpretation of this Court’s holding in Ortiz. This

Court made clear that there exists no exception to permit review of a motion for summary

judgment after trial. Ortiz, 131 S. Ct. at 888-89. While this Court mentioned, in dicta, that the

respondent’s brief raised the argument that his motion was purely legal, this Court refrained from

addressing the merits of that argument. Id. at 892. The circuit courts have created two

interpretations of this dicta. Some circuits refuse per se to review a summary judgment motion

after trial. See, e.g., Elusta, 418 F. App'x at 554-55. Other circuits have created a narrow

exception for summary judgment motions presenting purely legal issues. See, e.g., ClearOne,

653 F.3d at 1172. This Court has never expressly held that there is any exception to the rule that

 

16    

motions for summary judgment are not reviewable after a jury verdict, thus the Twelfth Circuit

erred in applying this narrow exception to Respondent's motions to dismiss. See Ortiz, 131 S. Ct.

at 892.

a. The correct interpretation of Ortiz recognizes that the court may not review summary judgment motions after trial

This Court should adopt the same reasoning it applied in refusing to review motions for

summary judgment after trial to motions to dismiss. Following Ortiz, some circuits rightfully

refuse per se to review summary judgment motions after a trial on the merits. See, e.g., Elusta,

418 F App’x at 554-55. This interpretation recognizes the difficulty in trying to separate motions

for summary judgment that present purely legal issues from ones that present factual issues. See

Chesapeake Paper Products Co. v. Stone & Webster Engineering Corp., 51 F.3d 1229, 1235 (4th

Cir. 1995) (“[S]uch a dichotomy would require this Court to engage in the dubious undertaking

of determining the bases on which summary judgment is denied and whether those bases are

'legal or 'factual.'”). Accordingly, the Fourth Circuit rejected review of any summary judgment

regardless of whether it presented a purely legal issue because the losing party had other

remedies available to it, mainly appealing the denial of a Rule 50(b) motion. Id. at 1235-36. This

Court should adopt this interpretation.

b. The other interpretation of Ortiz permits review after trial only of summary judgment motions raising purely legal issues.

Under the narrow exception created from dicta in Ortiz, some circuit courts review a

motion for summary judgment after a trial only if the motion presents a purely legal issue. See

ClearOne, 653 F.3d at 1172. A “purely legal” issue exists in the rare instance where the court

would need only to review the law and not reference any disputed facts to determine the outcome

of the issue. Ortiz, 131 S. Ct. at 892 (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). These

 

17    

cases typically involve disputes about clarifying the pre-existing substantive law, “not about

what occurred, or what action was taken or omitted.” Id.

Furthermore, there is a distinct difference between a question of law and a purely legal

issue. Kay v. United of Omaha Life Ins. Co., 562 F. App'x 380, 385 (6th Cir. 2014). A question

of law asks, “whether a particular factual record does or does not present a genuine issue of

material fact.” Id. A purely legal issue, on the other hand, is an is an “abstract legal question,

which can be asked and answered without reference to the facts of the case.” Id. Thus, unless the

legal arguments in a summary judgment motion can be wholly separated from the facts of the

case, after a trial on the merits, an appellate court lacks the authority to review that motion. Id.

Pretrial motions challenging factual sufficiency are likewise not reviewable and further

distinguishable from pretrial motions raising pure issues of law. See ClearOne, 653 F.3d at 1173;

Rulye v. Continental Oil Co., 44 F.3d 837, 841 (10th Cir. 1994). If a pre-trial motion is denied

because the judge determined that additional factual development is necessary, then a party

cannot seek review solely of that pretrial motion. ClearOne, 653 F.3d at 1173. These courts

review only motions that raise issues of law, not motions attacking the sufficiency of the

plaintiff’s evidence. Rulye, 44 F.3d at 842. Thus, under this narrow exception, a pretrial motion

merits review only when it disputes more than the sufficiency of the plaintiff's evidence. See id.

c. Respondent’s 12(b)(6) motion failed to raise a purely legal issue.

The Twelfth Circuit erred by holding that review of a 12(b)(6) motion after trial presents

a purely legal issue. Only the Twelfth Circuit has applied the “purely legal” exception for

summary judgment motions to a motion to dismiss. R. 12. By definition, a 12(b)(6) motion

necessitates that the court review the allegations contained in the plaintiff's complaint. Fed. R.

Civ. P. 8. In its review, the court must determine if the plaintiff plead “enough facts to state a

 

18    

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. As the dissent below

noted, “this inquiry is a fact-based inquiry that replicates the analysis a jury would ultimately be

expected to perform at trial.” R. 16-17 (Hill, J., dissenting). Thus, factual sufficiency is always

intertwined with any legal issues, rendering unreviewable a 12(b)(6) motion to dismiss after a

full trial on the merits.

In the instant case, Respondent’s 12(b)(6) motion failed to raise a purely legal issue. J.A.

6-8. Rather, Respondent instead raised merely a question of law. See J.A. 6-8.; Kay 562 F. App'x

at 385. Like the defendant in Kay, Respondent cannot identify a pure issue of law separate from

the sufficiency of the facts alleged in the complaint. See R. 16-17; Kay 562 F. App'x at 385. In

other words, Respondent’s only issue on appeal concerns the factual sufficiency of Duncan’s

complaint. R. 3. By raising this particular question, however, Respondent has tied its legal issue

to the facts of the case; the two can no longer be separated. Since Respondent cannot separate the

facts from the issues of law, Respondent cannot seek review solely of its motion to dismiss now

that Duncan has prevailed at trial. See ClearOne, 653 F.3d at 1173.

Therefore, even if this Court recognizes a purely legal exception for motions for

summary judgment and applies that exception to motions to dismiss, Respondent’s 12(b)(6)

motion fails to qualify for that exception. This Court made clear that it is unwilling to review

motions for summary judgment after a trial. See Ortiz, 131 S. Ct. at 888-89. While some circuits

recognize that an exception to Ortiz exists for purely legal issues, a 12(b)(6) motion to dismiss is

per se not a purely legal issue. See Kay 562 F. App'x at 385 Therefore, Respondent may not seek

review of its motion to dismiss at this stage. Accordingly, this Court should reverse the Twelfth

Circuit's decision and reinstate the jury verdict.

 

19    

C. Respondent’s 12(b)(6) Motion did not Meet the Requirements for Immediate Appellate Review.

The Twelfth Circuit erred by comparing Respondent’s 12(b)(6) motion to an immediately

appealable collateral order. Judicial economy dictates that a pretrial motion rarely falls under the

exception to the final judgment rule. See Johnson v. Jones, 515 U.S. 304, 316 (1995). A 12(b)(6)

motion raising qualified immunity is permitted review only because that issue is intertwined with

a pure issue of law. Iqbal, 556 U.S. at 673. Respondent's 12(b)(6) motion, on the other hand,

failed to raise an affirmative defense that was similarly intertwined. See id.; J.A. 10.

Accordingly, this Court should reverse the Twelfth Circuit’s decision.

1. The district court had no obligation to certify for interlocutory review its order denying Respondent’s 12(b)(6) motion to dismiss.

The district court was under no obligation to certify its Order on Defendant’s Motion to

Dismiss to render it ripe for immediate appellate review. In general, the denial of a pretrial

motion is not a final judgment, but only a step “along the route to final judgment.” Ortiz, 131 S.

Ct. at 889. However, there exist exceptions to the final judgment rule, which permit immediate

appeal after the denial of certain pre-trial motions. Mitchell, 472 U.S. at 530. An order is

immediately appealable only if it is a “final disposition of a claimed right which is not an

ingredient of the cause of action and does not require consideration with it.” Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). An order that is not typically immediately

appealable can nevertheless be certified for review under 28 U.S.C. § 1292(b). This statute

allows the court to certify an order for immediate review if (1) it involves a controlling question

of law; (2) there is a substantial difference of opinion regarding the proper standard of review;

and (3) resolution of the issue is of material importance to the advancement of litigation. 28

 

20    

U.S.C. § 1292(b). Given this stringent standard, motions to dismiss are rarely certified for

immediate appeal. See id.

Judicial efficiency necessitates that few orders fall under this exception. Johnson, 515

U.S. at 316. Allowing for a party to appeal immediately its denied pretrial motions often requires

the appellate court to review “approximately the same factual issues again, after trial, with just

enough change brought about by the trial testimony to require it, once again, to canvass the

record.” Id. Further, this Court noted that most orders are not considered final judgments because

district courts are far more suited than are appellate courts to determine “the existence, or

nonexistence, or a tribal issue of fact.” Id. Accordingly, judicial efficiency and public policy

dictate that the immediate review of pretrial motions be limited to the rare cases that presents a

legal issue. Id.

In the instant case, Respondent’s 12(b)(6) motion did not qualify for immediate appeal

because Respondent failed to raise a purely legal issue. J.A. 6-8. Factual sufficiency remains a

fact-based question of law and is most appropriately addressed by the district court. See Iqbal,

556 U.S. at 674-75; Johnson, 515 U.S. at 316. This is especially true in the instant case because

Respondent’s claim is limited to the factual sufficiency of Duncan’s complaint. See Kay, 562 F.

App'x at 385. Furthermore, such review places an unwarranted burden on the court by allowing

parties to seek review of otherwise straightforward denials of their motions to dismiss. Appellate

courts would be put in the position of reviewing substantially similar records of a case on two

separate occasions. See Johnson, 515 U.S. at 316. Thus, this Court should refrain from creating

precedent that will over burden the courts by expanding the exception to the final judgment rule.

 

21    

2. The Twelfth Circuit improperly compared Respondent’s 12(b)(6) motion to the 12(b)(6) motion in Iqbal.

The Twelfth Circuit erred in comparing Respondent’s 12(b)(6) motion to the 12(b)(6)

motion in Iqbal. This Court in Iqbal held that the denial of a defendant’s motions to dismiss

based on qualified immunity falls under narrow category permitting interlocutory appeal. 556

U.S. at 672. The question of whether the defendants were entitled to qualified immunity “turned

on an issue of law.” Id. Accordingly, Iqbal did not address the same concerns as Johnson, which

feared that courts would need to review the disputed facts in order to determine the outcome of

the pre-trial motion. Id. at 674 (citing Johnson, 515 U.S. at 316). Although qualified immunity

allows for immediate appeal, it need not be the sole issue addressed on appeal. Id. The

sufficiency of pleadings may be subject to review if they are “inextricably intertwined with and

directly impacted by the qualified immunity defense.” Id. at 673. Under these circumstances, this

Court explained that “evaluating the sufficiency of a complaint is not a fact-based question of

law.” Id. at 674-75.

Although the circuits disagree as to the precise deadline for asserting defenses during

trial, this Court has made clear that defenses may not be asserted after trial. Seigert v. Gilley, 500

U.S. 226, 232 (1991). For example, qualified immunity seeks to insulate government officials

“not only from an award of money damages, but also from the burdens of suit." Saucier v. Katz,

533 U.S. 194, 200-01 (2001). This protective function cannot be served after the conclusion of a

trial on the merits. See id. Further, qualified immunity applies only to government officials to

“encourag[e] the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800,

807 (1982).

In the instant case, Respondent’s motion to dismiss was not “inextricably intertwined”

with any pure issue of law. Iqbal, 556 U.S. at 673. In Iqbal, the defendant’s motion to dismiss

 

22    

was directly related to their affirmative defense of qualified immunity. Id. However, Respondent

has not alleged any affirmative defenses raising an issue of law that would permit review. J.A.

23. Trial has concluded and a judgment issued against Respondent, thus Respondent may not

assert any affirmative defense during appellate review. See Seigert at 232. Finally, unlike Iqbal,

Respondent is a private party ineligible for qualified immunity. Respondent’s motion to dismiss

attacks only the sufficiency of the Duncan’s allegations. Accordingly, Respondent’s motion and

the motion in Iqbal are not identical and the Twelfth Circuit erred in comparing them.

Respondent’s motion was not immediately appealable because it did not present a pure

issue of law. Allowing a party to appeal similar issues raised in pretrial motions before and after

trial would inhibit judicial efficiency. Furthermore, while this Court in Iqbal reviewed the

sufficiency of a complaint before trial, that issue was intertwined with the affirmative defense of

qualified immunity. Respondent’s motion, however, was not intertwined with a pure issue of

law. For these reasons, this Court should overrule the Twelfth Circuit and reinstate the jury

verdict in favor of Duncan.

II. THE TWELFTH CIRCUIT APPLIED AN INCORRECT PLEADING STANDARD IN GRANTING RESPONDENT’S MOTION TO DISMISS.  

This Court should reverse the Twelfth Circuit’s decision because it applied an

unworkable definition of facial plausibility to Duncan’s complaint. Title VII of the Civil Rights

Act prohibits the discharge of or otherwise discriminatory action against “any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual's race.” 42 U.S.C. § 2000e-2. A plaintiff establishes a prima facie case of employment

discrimination when they: (1) are a member in a suspect class; (2) suffered an adverse

employment action; and (3) the circumstances surrounding the adverse action indicated that the

employer had a discriminatory motive. Kenfield v. Colorado Dep't of Pub. Health & Env't, 557

 

23    

F. App'x 728, 731 (10th Cir. 2014). Title VII outlaws “racial discrimination in private

employment against whites on the same terms as racial discrimination against nonwhites.”

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279 (1976); see also Al-Khazraji v. Saint

Francis Coll., 784 F.2d 505, 519 (3d Cir. 1986) (explaining that these cases are referred to

generally as “reverse discrimination.”).

This Court has explained that the prima facie elements of an employment discrimination

claim are evidentiary standards, not pleading requirements. Swierkiewicz v. Sorema N.A., 534

U.S. 506, 510 (2002). In Swierkiewicz, the plaintiff filed a Title VII claim for employment

discrimination based on national origin. Id. at 509. The district court dismissed the complaint for

failure to allege a prima facie case. Id. This Court reversed, explaining that it “never indicated

that the requirements for establishing a prima facie case under McDonnell Douglas also apply to

the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.” Id.

Rather, a complaint alleging employment discriminated is governed only by Rule 8. Id.

This Court later changed its interpretation of Rule 8. Twombly, 550 U.S. at 570. In

Twombly, the plaintiffs brought a class action suit against Bell Atlantic, claiming that the

company violated the Sherman Act by engaging in anti-competitive behavior. Id. at 550. The

district court granted defendant's motion to dismiss for failure to state a claim. Id. at 551. In

upholding the dismissal of the complaint, this Court abrogated its “no set of facts” interpretation

of Rule 8. Id. at 561 (quoting Conley v. Gibson, 355 U.S. 40, 45-46 (1957)). Instead, this Court

explained that a complaint alleging antitrust violations must now allege “enough facts to state a

claim to relief that is plausible on its face.” Id. at 570.

In reaching this conclusion, this Court rejected the plaintiff's argument that the

plausibility analysis “runs counter” to Swierkiewicz. Id. at 569. Rather, this Court distinguished

 

24    

Swierkiewicz, explaining that it did not change the law of pleading, but emphasized that the “use

of a heightened pleading standard in Title VII cases was contrary to the Federal Rules' structure

of liberal pleading requirements.” Id. (quoting Twombly v. Bell Atl. Corp, 313 F. Supp. 2d 174,

181 (S.D.N.Y. 2003). This Court has neither expressly nor implicitly overruled Swierkiewicz;

Twombly was the last opinion of this Court to cite Swierkiewicz and it did so favorably. See id.

This Court extended the plausibility standard to all civil claims in federal court. Ashcroft

v. Iqbal, 556 U.S. 662, 684 (2009). The plaintiff in Iqbal, a Pakistani Muslim, was arrested

shortly after the September 11, 2001 terrorist attacks. Id. at 666. The plaintiff brought a

discrimination action against various high-ranking public officials, including the attorney general

and director of the FBI. Id. The defendants moved to dismiss the complaint, claiming qualified

immunity. Id. The trial court denied the motion. Id. This Court reversed, holding that Rule 8

applies to all civil actions in federal court. Id. at 684. Given the unique circumstances of the case,

this Court held the plaintiff failed to allege a plausible claim of racial discrimination and held

that the defendants were entitled to qualified immunity. Id

In the instant case, the Twelfth Circuit misinterpreted the interplay between this Court's

holdings in Swierkiewicz, Twombly, and Iqbal. This led to the Twelfth Circuit applying an

unworkable pleading standard to Duncan's complaint in holding his complaint failed to allege

facts sufficient to state a plausible claim of employment discrimination. As the vast majority of

circuit courts recognize, this Court neither expressly nor implicitly overruled Swierkiewicz and

thus Swierkiewicz remains viable in light of Twombly and Iqbal. Whether this Court chooses to

adopt the (1) “straightforward claim” standard; (2) the majority “prima facie elements” standard;

or (3) the minority standard, which relies on Swerikiewicz being overruled, Duncan's complaint

established a scenario of employment discrimination that was plausible on its face and provided

 

25    

Respondent fair notice of the claim. This Court should reverse the decision of the Twelfth Circuit

and reinstate the jury verdict.

A. The Twelfth Circuit Had Neither the Authority Nor the Merit to Overrule Swierkiewicz.

The Twelfth Circuit lacked both the authority and merit to overrule Swierkiewicz and thus

adopted an improper interpretation of facial plausibility. Stare decisis cautions this Court against

overruling one of its earlier holdings. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Further, the

authority to overrule a prior decision vests only in this Court; circuit courts are not, under any

circumstances, authorized to overrule this Court's precedent. Agostini v. Felton, 521 U.S. 203,

207 (1997). Not only did the Twelfth Circuit lack the authority to declare Swierkiewicz

overruled, it also lacked an adequate basis for so holding. This led to the misapplication of the

plausibility standard as defined by this Court. For these reasons, the Twelfth Circuit erred by

granting Respondent's motion to dismiss.

1. Only this Court may overrule one of its prior holdings.

The Twelfth Circuit chose not to follow this Court's stare decisis precedent by holding

that Swierkiewicz is no longer good law. Stare decisis encourages “evenhanded, predictable, and

consistent development of legal principles, fosters reliance on judicial decisions, and contributes

to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808,

827 (1991). For these reasons, stare decisis cautions strongly against reconsideration of this

Court's prior decisions, except where precedent is unworkable or poorly reasoned. Payne, 501

U.S. at 827.

This Court has admonished circuit courts for attempting to overrule this Court's

precedent. See Agostini, 521 U.S. at 207; Khan, 22 U.S. at 20. If a circuit court believes that a

conflict exists between two opinions of this Court, this Court has explained that “the Court of

 

26    

Appeals should follow the case which directly controls, leaving to this Court the prerogative of

overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477,

484 (1989). Most circuit courts have correctly followed this course of action regarding

Swierkiewicz. See, e.g., Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013)

(“Neither Iqbal nor Twombly overruled Swierkiewicz, and it is our duty to apply the Supreme

Court's precedents unless and until the Supreme Court itself overrules them.”).

The Twelfth Circuit acknowledged but neglected to follow this Court's pronouncements

regarding stare decisis. Despite noting that it does not “usually anticipate Supreme Court

decisions,” the Twelfth Circuit proceeded to hold that Swierkiewicz is no longer good law. R. 15.

Rather than simply applying the pleading standard under Iqbal, the Twelfth Circuit improperly

renounced the case with which it claimed Iqbal conflicted. See Rodriguez de Quijas, 490 U.S. at

484; R. 15. The Twelfth Circuit should have remained silent on the issue and left only to this

Court the prerogative of overturning Swierkiewicz, if this Court so chooses. See id. For these

reasons, the Twelfth Circuit erred because it did not possess the authority to overrule

Swierkiewicz.

2. The Twelfth Circuit failed to establish an adequate basis for overruling Swierkiewicz.

The Twelfth Circuit failed to appreciate that Swierkiewicz remains good law in light of

Twombly and Iqbal. Twombly expressly rejected the plaintiff's argument that its holding “runs

counter” to Swierkiewicz. Twombly, 550 U.S. at 569. Nevertheless, the Twelfth Circuit

concluded that Swierkiewicz is no longer good law. R. 15. As one commentator notes, “this

interpretation seems highly implausible, given that just five years separated the two cases; that

Twombly's author joined the Swierkiewicz opinion; that Swierkiewicz's author joined the

Twombly majority; and that five of the seven Justices on the Court for both cases joined both

 

27    

opinions.” Andrew Blair-Stanek, Twombly Is the Logical Extension of the Mathews v. Eldridge

Test to Discovery, 62 Fla. L. Rev. 1, 28 (2010). Accordingly, there exists no basis for

determining that Twombly overruled Swierkiewicz.

Iqbal further bolsters the conclusion that Swierkiewicz remains good law. This Court

explained that “determining whether a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556) (emphasis supplied).

The plaintiff in Iqbal alleged that the United States Attorney General and FBI Director conspired

to create and implement an “invidious policy” of discrimination that was carried out by lower

ranking government officials. 556 U.S. at 681. Duncan, on the other hand, alleged that his direct

supervisor fired him because of his race. J.A. 3-5. The Twelfth Circuit reasoned that these two

claims were only “slightly different,” and thus needed to reconcile the seemingly inconsistent

results. R. 15. In reaching this conclusion, the Twelfth Circuit focused only on the fact that both

cases at their core involved racial discrimination. R. 14-15. Judicial experience and common

sense dictate that a claim alleging a complex conspiracy among high-ranking government

officials requires more detail to establish a “facially plausible scenario” than a straightforward

employment discrimination claim. See Iqbal, 556 U.S. at 679.

In reaching the conclusion that Iqbal implicitly overruled Swierkiewicz, the Twelfth

Circuit was further motivated by the extent to which Swierkiewicz relied on the old pleading

standard in Conley. R. 1. Other circuit courts have used similar reasoning. See e.g., Fowler v.

UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (“[B]ecause Conley has been specifically

repudiated by both Twombly and Iqbal, so too has Swierkiewicz, at least insofar as it concerns

 

28    

pleading requirements and relies on Conley.”). As the Sixth Circuit explained, this interpretation

is flawed because  

Swierkiewicz was not directed at explaining what an employment-discrimination plaintiff, in particular, does or does not need to plead to survive a motion to dismiss, so much as it was directed to making clear that McDonnell Douglas does not set the standard for pleading any complaint.

Lindsay v. Yates, 498 F.3d 434, 439-40 (6th Cir. 2007). Therefore, the extent to which

Swierkiewicz relied on Conely is irrelevant. See id.  

In other words, Swierkiewicz held only that a plaintiff need not plead the prima facie

elements to survive a Rule 12(b)(6) motion. See 534 U.S. at 510. If Swierkiewicz is no longer

good law, then plaintiffs must plead the prima facie elements to survive a motion to dismiss. See

Suja A. Thomas, Oddball Iqbal and Twombly and Employment Discrimination, 2011 U. Ill. L.

Rev. 215, 227 (2011). However, the Twelfth Circuit never addressed whether it intended to

overrule Swierkiewicz's treatment of the prima facie elements. Three circuit courts have

explained that, even though they no longer recognize Swierkiewicz as good law, plaintiffs are

still not required to plead the prima facie elements. See McCone v. Pitney Bowes, Inc., No. 14-

11119, 2014 WL 4377868, at *3 (11th Cir. Sept. 5, 2014); Francis v. Giacomelli, 588 F.3d 186,

196 (4th Cir. 2009); Fowler, 578 F.3d at 213 (3d Cir. 2009). Recognizing an apparent

inconsistency in this interpretation, the Third Circuit has distanced itself from Fowler. In re Ins.

Brokerage Antitrust Litig., 618 F.3d 300, 319 (3d Cir. 2010) (“Although Fowler stated that

Twombly and Iqbal had repudiated the Supreme Court's earlier decision in Swierkiewicz . . . we

are not so sure.”) (internal quotations and citations omitted).  

This inconsistency has likewise caused confusion among district courts. The reporter is

replete with instances of circuit courts reversing a district court's decision to grant a motion to

dismiss for failure to plead the prima facie elements. See Estabrook v. Safety & Ecology Corp.,

 

29    

556 F. App'x 152, 157 (3d Cir. 2014) (“[T]o the extent the Court suggested that Estabrook's

claim failed because she failed to establish a prima facie case and failed to present evidence, it

did so erroneously.”) (emphasis in original); Stone v. Louisiana Dep't of Revenue, No. 14-30204,

2014 WL 5654307, at *6 (5th Cir. Nov. 5, 2014) (“The district court applied incorrect standards

when it dismissed [plaintiff's claims] for failure to plead a prima facie case.”). These cases

further demonstrate why there exists no basis to overrule Swierkiewicz without then requiring

plaintiffs to plead the prima facie elements.

The Twelfth Circuit erred by holding that Swierkiewicz is no longer good law. This Court

has emphasized that a circuit court cannot, under any circumstances, overrule this Court's

precedent. The Twelfth Circuit ignored this principle by overruling Swierkiewicz, despite the fact

that Twombly cited Swierkiewicz with approval and Iqbal neglected to cite Swierkiewicz at all.

The Twelfth Circuit failed to appreciate the significant factual differences between the claims in

Iqbal and Swierkiewicz and thus improperly concluded that the two cases reached inconsistent

results. For these reasons, the Twelfth Circuit lacked both the authority and merit for overruling

Swierkiewicz.

B. The Vast Majority of Circuit Courts Reject the Twelfth Circuit’s Reasoning and Instead Recognize that this Court Neither Explicitly Nor Implicitly Overruled Swierkiewicz.

Unlike the Twelfth Circuit, most circuit courts hold that Swierkiewicz remains good law.

These courts reason that Swierkiewicz held only that a plaintiff need not plead the prima facie

elements. See, e.g., Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013).

However, these circuit courts have developed two different interpretations of facial plausibility.

The Seventh, Ninth, and Federal Circuits use a “straightforward claim” approach, which

provides the allegations necessary to state a plausible claim. See, e.g., Swanson, 614 F.3d 400,

405 (7th Cir. 2010). The First, Second, Fifth, Sixth, Eighth, and Tenth Circuits do not articulate

 

30    

which allegations are necessary, but instead use prima facie elements as a guide to determine

whether the claim is plausible. See Rodriguez-Reyes, 711 F.3d at 54.

1. The straightforward claim standard provides a workable, bright-line test to determine whether a complaint is plausible on its face.

This Court should apply the “straightforward claim” approach adopted by the Seventh,

Ninth, and Federal Circuits. In such a case, “it will not be any more difficult today for a plaintiff

to meet [its] burden than it was before the Court's recent decisions.” Swanson, 614 F.3d at 404.

However, a complaint still must contain at least some details to establish a believable story.

Nikolic v. St. Catherine Hosp., No. 2:10 CV 306, 2011 WL 4537911, at *3 (N.D.Ind. Sept. 28,

2011). Therefore, these circuits hold that a complaint states a plausible claim of employment

discrimination when it identifies “the type of discrimination . . . by whom . . . and when” the

impermissible conduct occurred. Swanson, 614 F.3d at 405; accord Rouse v. Berry, 680 F. Supp.

2d 233, 236 (D.D.C. 2010); Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1050 (9th Cir.

2012).

This standard correctly recognizes that complex claims, like those in Twombly and Iqbal,

require more detailed allegations than simple employment discrimination cases.

The Court's specific concern in [Twombly] was with the burden of discovery imposed on a defendant by implausible allegations perhaps intended merely to extort a settlement that would spare the defendant that burden. In Iqbal it was with the inroads into the defense of official immunity—which is meant to protect the officer from the burden of trial and not merely from damages liability—that allowing implausible allegations to defeat a motion to dismiss would make.

Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009). This is not, as the Twelfth Circuit

suggested, applying a heightened pleading standard in all qualified immunity cases. R. 15.

Rather, it is the recognition that the level of detail required increases with the complexity of the

allegations. See McCauley v. City of Chicago, 671 F.3d 611, 616-17 (7th Cir. 2011). As the

 

31    

Seventh Circuit explained, complex cases require more detail in order to “give the opposing

party notice of what the case is all about.” Swanson, 614 F.3d at 404-05. Straightforward

employment discrimination claims, on the other hand, do not require much specificity to paint a

plausible scenario. Rouse, 680 F. Supp. At 236.

For these reasons, this Court should adopt the “straightforward claim” standard

articulated by the Seventh, Ninth, and Federal Circuits. This approach provides an appropriate

framework for courts determine whether a complaint states a facially plausible claim of

employment discrimination. Courts can draw a reasonable inference that the plaintiff suffered

employment discrimination when the plaintiff alleges the type of discrimination, by whom, and

when, with some factual detail to support each allegation.

2. The majority standard also provides a workable test for determining whether a complaint is plausible on its face.

Alternatively, this Court could adopt the approach applied by the majority of circuit

courts. These courts recognize that Swierkiewicz remains good law, but do not follow the

“straightforward claim” standard. Under the majority standard, while the plaintiff's complaint

need not establish a prima facie case, “the elements of each alleged cause of action help to

determine whether [the plaintiff] has set forth a plausible claim.” Khalik v. United Air Lines, 671

F.3d 1188, 1192 (10th Cir. 2012). As the First Circuit summarized,

[i]n a nutshell, the elements of a prima facie case may be used as a prism to shed light upon the plausibility of the claim. Although a plaintiff must plead enough facts to make entitlement to relief plausible in light of the evidentiary standard that will pertain at trial—in a discrimination case, the prima facie standard—she need not plead facts sufficient to establish a prima facie case.

Rodriguez-Reyes, 711 F.3d at 54. In other words, the more closely a plaintiff's complaint tracks

the requirements for a prima facie case at trial, the more likely that the plaintiff has pled a

facially plausible scenario of employment discrimination. See id. This treatment of the prima

 

32    

facie elements is appropriate because “before discovery has unearthed the relevant facts and

evidence, it may be difficult to define the appropriate formulation.” Keys v. Humana, Inc., 684

F.3d 605, 609 (6th Cir. 2012).

The majority approach provides a workable definition of facial plausibility. This standard

“serves not only to weed out claims that do not . . . have a reasonable prospect of success, but

also to inform the defendants of the actual grounds of the claims against them.” Robbins v.

Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). The complaint must contain sufficient detail to

allow the court to draw the reasonable inference that the allegations could have occurred. Keys,

684 F.3d at 610. Thus, plausibility in this context depends on the scope of the allegations: “if

they are so general that they encompass a wide swath of [innocent] conduct . . . then the

plaintiffs have not nudged their claims across the line from conceivable to plausible.” Robbins,

519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).

If this Court is not persuaded by the “straightforward claim” test, it should instead adopt

the framework applied by the majority of circuits. This approach correctly recognizes the

continuing viability of Swierkiewicz in light of Twombly and Iqbal. Rather than providing

specific allegations necessary to state a facially plausible claim, these courts use the prima facie

elements as a guide to determine the plausibility of the claim. The facial plausibility of a

plaintiff's complaint increases as the plaintiff includes allegations that track the prima facie

elements required at trial. For these reasons, this Court could instead adopt the majority's

interpretation of facial plausibility.

C. Duncan Alleged Facts Sufficient to Establish a Facially Plausible Claim of Employment Discrimination under Each of the Circuit Court Standards.

Under any of the three standards this Court chooses to apply, Duncan's complaint alleged

a facially plausible scenario of employment discrimination. Under the Seventh, Ninth, and

 

33    

Federal Circuits' “straightforward claim” standard, Duncan alleged the required facts to defeat

Respondent's motion to dismiss. See Swanson, 614 F.3d at 405 Under the majority circuit

standard, Duncan alleged facts supporting the inference that he would meet each of the elements

necessary at trial to establish a prima facie case. See Rodriguez-Reyes, 711 F.3d at 54. Finally,

even under the Twelfth Circuit's approach, Duncan's complaint nevertheless established a

facially plausible claim because the Twelfth Circuit relied on distinguishable cases and applied

an unworkable definition of facial plausibility. See R.15-16.

1. Duncan’s complaint met the straightforward claim standard of facial plausibility.

Applying the refined analysis employed by the Seventh, Ninth, and Federal Circuits

compels reversal of the Twelfth Circuit's decision. In these circuits, a complaint survives a Rule

12(b)(6) motion when it states “the type of discrimination that [the plaintiff] thinks [occurred] . .

. by whom . . . and when.” Swanson, 614 F.3d at 405; see also Nikolic, 2011 WL 4537911, at

*5 (“Plaintiff in this case asserts her supervisor and coworkers . . . harassed and discriminated

against her on the basis of her national origin, continuously from August 2005 through the

present. That alone would meet Swanson' s standard.”). Since these are the only relevant factors

to consider in determining the plausibility of an employment discrimination claim, “the fact that

[the plaintiff] included other, largely extraneous facts in her complaint does not undermine the

soundness” of the overall pleading. Id.

In the instant case, Duncan's complaint included sufficient detail to satisfy this standard.

First, Duncan alleged that the type of discrimination he faced was racial. J.A. 4. Second, Duncan

alleged he faced this discrimination from both his co-workers and direct supervisor. J.A. 4.

Finally, Duncan provided various dates which established a time period during which he was

discriminated against. J.A. 3-4. Although Duncan's complaint alleged various other facts, these

 

34    

extraneous details do not undermine the soundness of his pleading. See Swanson, 680 F.3d at

405. The relevant information provided by Duncan paints “an entirely plausible scenario of

employment discrimination.” See Nikolic, 2011 WL 4537911, at *5. Because Duncan satisfied

the “straightforward claim” standard, this Court should reverse the Twelfth Circuit's decision.

2. Duncan’s complaint met the majority standard of facial plausibility. Duncan's complaint also meets the plausibility standard applied by the majority of circuit

courts. “There is no roadmap for courts to distinguish between conclusory and well-pled factual

allegations, and then determine whether such well-pled facts plausibly give rise to an entitlement

to relief.” Kasten v. Ford Motor Co., 2009 WL 3628012, at *7. A claim is factually insufficient

only when the allegations “are so general that they encompass a wide swath of conduct, much of

it innocent.” Robbins, 519 F.3d at 1247. As the Tenth Circuit further explained, “[t]he Twombly

Court was particularly critical of complaints that 'mentioned no specific time, place, or person

involved in the alleged conspiracies.'” Id. at 1248 (quoting Twombly, 550 U.S. at 565 n. 10).

Duncan's complaint, on the other hand, included a specific time, place, and person involved in

his discrimination.

While the prima facie elements are not necessary to establish a sufficient claim at the

pleading stage, those elements guide the court's analysis of facial plausibility. See Rodriguez-

Reyes, 711 F.3d at 54. The plaintiff establishes a prima facie case of employment discrimination

when the plaintiff (1) belongs to a protected class; (2) suffered an adverse employment action;

and (3) proves such action occurred under circumstances creating an inference of discrimination.

Kenfield, 557 F. App'x at 731.

 

35    

a. Duncan pled facts supporting the inference that he could meet the first prima facie element.

Courts disagree as to how the first prima facie element should be modified in reverse

discrimination cases. However, The Twelfth Circuit has not taken sides on this issue and it is

unclear which standard was applied at trial. The Third Circuit test requires “evidence . . . that the

employer is treating some people less favorably than others based upon a trait that is protected

under Title VII.” Iadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999). On the other hand, the

Tenth Circuit requires that the plaintiff “establish background circumstances that support an

inference that the [employer] is one of those unusual employers who discriminates against the

majority.” Mitchell v. City of Wichita, Kansas, 140 F. App'x 767, 777 (10th Cir. 2005).

Duncan pled facts supporting both the Third and Tenth Circuit standards. Under the Third

Circuit test, the plaintiff must demonstrate that the employer “treat[ed] some people less

favorably than others based upon a trait that is protected.” Iadimarco, 190 F.3d at 161. Duncan

alleged he was not afforded the opportunity, like other employees at the distribution center, to

select which music to play on the radio during work. J.A. 4. Accordingly, Duncan alleged that he

was the only white employee and thus the only employee treated less favorably because of his

race. J.A. 3-4. Finally, Duncan believed that Turner's statement that he was “not a good fit for

the team” was because Duncan was the only white employee. J.A. 5. These allegations, taken as

true, create a reasonable inference that Respondent treated its only white employee less favorably

than non-white employees. See Iadimarco, 190 F.3d at 161.

Under the Tenth Circuit's test, Duncan instead had to “establish background

circumstances that support an inference” that Bigmart discriminates against the majority.

Mitchell, 140 F. App'x at 777. Here, unlike in Mitchell, Duncan was not a member of the racial

majority at his place of employment. Cf. id. at 781 (“Mitchell did not put forth any evidence of

 

36    

other Caucasian employees against whom the [defendant] has discriminated.”). Therefore,

Duncan could not point to treatment faced by other white employees to demonstrate that he faced

racial discrimination. See id. Respondent's failure to hire any other white employees during the

duration of Duncan's twenty-two years of employment also implies that Respondent is the type

of employer that discriminates against white employees. See id.; J.A. 4. These allegations satisfy

the Tenth Circuit's standard. See Mitchell, 140 F. App'x at 777.

b. Duncan pled facts supporting the inference that he could meet the second prima facie element.

Duncan's complaint likewise contained allegations sufficient to meet the second prima

facie element. An adverse employment action is a “significant change in employment status,

such as hiring, firing, failing to promote, [or] reassignment with significantly different

responsibilities.” McCone, 582 F. App'x at 800 (citation omitted). These changes are referred to

as “ultimate employment decisions.” Stone, 2014 WL 5654307, at *6. Here, Duncan alleged

arguably the most adverse employment action: being fired from a job he held for over twenty

years. See J.A. 4. Taking this allegation as true, this Court can draw the reasonable inference that

Duncan would meet the second prima facie element at trial. See Rodriguez-Reyes, 711 F.3d at

54. Therefore, Duncan's allegation that he was fired from his position further establishes a

facially plausible scenario of employment discrimination.

c. Duncan pled facts supporting the inference that he could meet the third prima facie element.

Duncan pled facts demonstrating that Respondent fired Duncan because of his race. “It is

axiomatic that mistreatment at work is actionable under Title VII only when it occurs because of

an employee's . . . protected characteristic.” Patane, 508 F.3d at 112 (emphasis in original).

However, “the court must be alert to the fact that employers are rarely so cooperative as to

 

37    

include a notation in the personnel file that their actions are motivated by factors expressly

forbidden by law.” Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)

(internal quotations and citation omitted); see also Dister v. Cont'l Grp., Inc., 859 F.2d 1108,

1112 (2d Cir. 1988) (explaining that “direct evidence of discrimination is difficult to find

precisely because its practitioners deliberately try to hide it.”). Therefore, “when the plaintiff's

evidence . . . challenges the defendant's articulated nondiscriminatory reason, such evidence may

serve as well to support a reasonable inference that discrimination was a motivating reason for

the employer's decision.” Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir.1997).

Duncan demonstrated that Turner provided a merely pretextual reason for his dismissal,

which was unrelated to Duncan's job performance. Duncan alleged that Turner's only stated

reason for firing him was that he was “not a good fit on our team,” despite the fact that Duncan

worked faithfully and performed adequately for twenty-two years J.A. 4. Further, Duncan's final

performance review in July, 2012 indicated that he was performing at an adequate or good level

in all applicable categories. J.A. 4. Respondent nevertheless fired Duncan on August 1, 2012,

before any new performance-related conduct warranted an adverse employment action. J.A. 4.;

see also Keys, 684 F.3d at 610 (holding plaintiff's allegation that she “received specific adverse

employment actions notwithstanding satisfactory employment performances” demonstrated a

facially plausible claim). For these reasons, Duncan’s complaint rebutted Respondent's mere

pretextual reason for his dismissal. Schwab v. Smalls, 435 F. App'x 37, 40 (2d Cir. 2011)

(holding plaintiff's complaint was facially plausible in part because plaintiff “held her position

for many years” and “detail[ed] the pretextual” reasons for her dismissal).

In addition to establishing a facially plausible claim, Duncan's complaint provided

Respondent with sufficient notice of his theory of employment discrimination. Unlike in

 

38    

Twombly, the defendant in the instant case did not “have little idea where to begin” in responding

to Duncan's complaint. Cf. 550 U.S. at 565. Rather, Duncan's complaint provided specific dates,

named persons directly involved in the alleged discrimination, and provided those persons' race.

J.A. 2-4; see also Mayale-Eke v. Merrill Lynch, 754 F. Supp. 2d 372, 384 (D.R.I. 2010) (holding

a complaint gave fair notice of the claim because it “detail[ed] the events leading to his

termination, provides relevant dates, and includes the race of at least one of the relevant persons

involved with his termination.”). Duncan's allegations provided Bigmart with enough

information to adequately conduct its own investigation before determining how best to respond

to Duncan's complaint. See Twombly, 550 U.S. at 565.

Duncan's complaint established a facially plausible scenario of employment

discrimination under the majority circuit standard. Duncan alleged that Respondent treated him

differently than other employees because of his race. Alternatively, Duncan alleged facts

supporting an inference that Respondent is the type of employer that discriminates against the

racial majority. Duncan further demonstrated that his firing after twenty-two years constituted an

adverse employment action. Finally, Duncan pled facts showing Respondent provided merely

pretextual, non-performance related reasons for his dismissal. Accordingly, this Court should

reverse the Twelfth Circuit's decision and reinstate the jury verdict.

3. Duncan’s complaint met the Twelfth Circuit’s standard of facial plausibility.

The Twelfth Circuit applied an unworkable definition of facial plausibility in granting

Respondent motion to dismiss. The Twelfth Circuit concluded that “[o]nce it is determined that

the plausibility standard is the right approach for measuring the sufficiency of Plaintiff's

complaint, it is obvious that the complaint does not satisfy this standard.” R. 15-16. Duncan does

not dispute that facial plausibility is the applicable standard; Duncan argues only that the Twelfth

 

39    

Circuit incorrectly applied this standard. The Twelfth Circuit reached this conclusion only by

comparing the instant case to Iqbal. R. 13-14. As many commentators have noted, however,

Iqbal ultimately ruled that the plaintiff's complaint was not plausible because he did not bring it

against the proper defendants. See e.g., Charles A. Sullivan, Plausibly Pleading Employment

Discrimination, 52 Wm. & Mary L. Rev. 1631-32 (2011) (“The Court reasoned that, although it

might have been plausible that lower-level officials acted from inappropriate motives, it was not

plausible that Ashcroft and Mueller did so.”). Unlike in Iqbal, Duncan did not allege that

Respondent created an invidious policy of discrimination that lower-level supervisors carried

out. Cf. Iqbal, 556 U.S. at 666. Rather, Duncan's claim was based on his supervisor's direct

involvement in the illegal activity. J.A. 3-5. For these reasons, Iqbal is distinguishable from the

instant case.

The Twelfth Circuit misapplied Fowler as support for holding that Duncan’s employment

discrimination claim was inadequate. Even though Fowler likewise declared Swierkiewicz

overruled, it proceeded to uphold a complaint very similar to that in the instant case. See Fowler,

578 F.3d at 211-12. The Third Circuit explained that “[a]lthough [plaintiff's] complaint is not as

rich with detail as some might prefer, it need only set forth sufficient facts to support plausible

claims . . . The complaint pleads how, when, and where [employer] allegedly discriminated

against [plaintiff].” Id. As noted above, Duncan's complaint likewise explained how, when, and

where he suffered employment discrimination before ultimately being fired for reasons Duncan

alleged were pretextual. See J.A. 3-5. Applying Fowler's reasoning to the instant case

demonstrates that Duncan's complaint is facially plausible, despite the Twelfth Circuit reaching

the opposite conclusion.

 

40    

The Twelfth Circuit also misapplied the Fourth Circuit's opinion in Francis. In Francis,

the plaintiffs, a former police commissioner and two former deputies, claimed that the mayor,

police commissioner, and other city officials fired them for racially motivated reasons. 588 F.3d

at 195. However, the court noted that the complaint failed to establish facial plausibility because

one of the plaintiffs who was not a racial minority alleged the exact same treatment in other

portions of the complaint, but did not claim any impermissible racial motivation. Id. at 195-96.

Here, however, Duncan was the only white employee and thus there are not other white

employees raising similar claims against Respondent, without claiming racial motivation. Cf.

Francis, 588 F.3d at 195. Furthermore, Francis is similar to Iqbal in that the plaintiffs alleged a

complex government conspiracy against officials who were entitled to qualified immunity. See

Francis, 588 F.3d at 196. For these reasons, the Twelfth Circuit improperly compared the instant

case to Francis in reaching the conclusion that Duncan's claim was not facially plausible.

The Twelfth Circuit improperly determined that Duncan's complaint failed to state a

facially plausible claim of employment discrimination. In reaching this conclusion, the Twelfth

Circuit failed to recognize the significant factual dissimilarities between Iqbal and the instant

case. Further, the Twelfth Circuit relied on Fowler, in which the Third Circuit deemed facially

plausible a complaint containing allegations nearly identical Duncan's complaint. The Twelfth

Circuit likewise improperly relied on Francis, a complex conspiracy case in which not all of the

plaintiffs alleged any impermissible racial motivation for their firing. For these reasons, this

Court should reverse the decision of the Twelfth Circuit, deny Respondent's motion to dismiss,

and reinstate the jury verdict.

 

41    

CONCLUSION

For the aforementioned reason, Duncan respectfully requests that this Court REVERSE

the decision of the Twelfth Circuit Court of Appeals, reinstate the jury verdict, and hold that (1)

a motion to dismiss is not reviewable after a full trial on the merits; and (2) Duncan pled facts

sufficient to establish a facially plausible claim of employment discrimination.

Respectfully submitted,

Counsel for Petitioner