Employment Law Daily Addressing pleading standards, Third Circuit finds trucker's allegations of bias, retaliation were plausible
Wednesday, January 13, 2016

Addressing pleading standards, Third Circuit finds trucker's allegations of bias, retaliation were plausible

By Lisa Milam-Perez, J.D. A female truck driver who was not recalled from layoff after complaining of ongoing hostility from male coworkers and an unwanted sexual advance by a foreman sufficiently pleaded gender discrimination and retaliation, the Third Circuit held, reviving claims that the district court had improperly dismissed with prejudice. Twombly and Iqbal make clear what a plaintiff must plead to state a plausible claim, and what is expected of the district courts charged with reviewing the sufficiency of those pleadings. The district court got it wrong here (Connelly v. Lane Construction Corp., January 11, 2016, Jordan, K.). Because she jilted a coworker, the lone female driver at a construction company worksite incurred the wrath of fellow drivers, who cursed and belittled her on a daily basis. Some refused to speak to her at all, she contended. After she complained to supervisors and even to higher-ups at company headquarters, her former boyfriend, who was making “increasingly frequent and disparaging” comments about her, was suspended for three days. However, the other perpetrators were not disciplined, and they continued to “harass and disparage” her. Meanwhile, her foreman made an unwelcome advance, so she asked for a transfer to another worksite. The supervisor refused to believe that the foreman “would do something like that” and said he wanted to meet with both of them together, but that meeting never materialized. So she called the company’s ethics hotline, and the supervisor relented and granted the transfer. Her relationship with her male coworkers continued to sour after her complaint about her supervisor, and she continued to make hotline complaints. Although she ranked fifth in seniority, she was laid off before the end of the construction season and was never recalled. Yet all six of her laid-off male coworkers, who were lower on the seniority list, were recalled. Pleading standards. The district court rejected as time-barred her initial complaint, with its claims of sexual harassment and hostile work environment. It then dismissed with prejudice her timely amended claims of disparate treatment and retaliation based on the employer’s failure to recall her. The employee failed to allege sufficient facts to plausibly state a claim, the district court held. In the Third Circuit’s view, this was error. Under Twombly and Iqbal, a court reviewing the sufficiency of a complaint must note the elements that a plaintiff must plead; strike any allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth;” and then, assuming the truth of the well-pleaded allegations, “determine whether they plausibly give rise to an entitlement to relief.” Here, though, the district court merely presumed the employee was proceeding under a mixed-motive theory and incorrectly evaluated the complaint as if she were required to show pretext, giving “point-by-point consideration of the elements of a prima facie case.” This is improper on a motion to dismiss, even under Twombly, which “simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element[s].” Conclusory? Twombly and Iqbal require courts to dispose of conclusory allegations; however, the pleading standards do not compel courts to abandon the presumption that the complaint allegations are true—even the most “outlandish” allegations—unless they are based merely on a “formulaic recitation of the elements of a claim.” The lower court rejected the amended complaint as “extremely vague and conclusory,” but it failed to point to any specific allegations that could be deemed mere legal conclusions. The appeals court looked at the pleadings and discounted certain assertions that were conclusory at best or merely “paraphrase in one way or another the pertinent statutory language or elements of the claims in question.” But there was plenty remaining from which, accepted as true and drawing all reasonable inference therefrom, could plausibly entitle the employee to relief. The remaining allegations could support a finding that the employer’s stated reason for its failure to rehire the employee was pretextual. Having said that, though, the appeals court emphasized that the employee wasn’t obligated at this stage to decide whether she was proceeding under a mixed-motive theory, nor was she required to establish a prima facie case, much less engage in the burden-shifting called for under McDonnell Douglas. On a motion to dismiss, it was enough for her to plead facts that, construed in her favor, state a claim of discrimination that is plausible on its face. She cleared that hurdle. So too with her retaliation claim. The district court had dismissed her reprisal claim on the pleadings because the temporal proximity of her complaints and the adverse employment action did not lend itself to a finding of causation. But the seasonal nature of construction work undermined this conclusion, the appeals court noted. At any rate, a dispute over temporal proximity did not render a reprisal claim implausible on its face. And while there were other facts that might not weigh in her favor (she had been rehired four consecutive times in years past despite her ongoing complaints, for example), on a motion to dismiss, pleading standards require that all alleged facts be construed in the light most favorable to the plaintiff. “We must adhere to the requirement,” the appeals court said, vacating the lower court’s order dismissing her complaint.

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