The district court erred in dismissing Wright’s Title VII retaliation claim under Federal Rule of Civil Procedure 12(b)(6). 9

A. To survive a motion to dismiss under Rule 12(b)(6) on a Title VII retaliation claim, a complaint need only provide the defendant adequate notice by alleging sufficient facts on the ultimate elements of the claim. 10

B. The SAC adequately alleged facts on the ultimate elements of Wright’s Title VII retaliation claim. 13

1. Union Pacific properly did not contest that Wright adequately pleaded “materially adverse actions” and “protected activity” in her complaint. 13

2. Wright pleaded sufficient facts on the ultimate element of causation. 15

a. The facts alleged in the SAC were sufficient to support an inference of causation. 15

b. The district court made fundamental errors in concluding that Wright did not adequately allege causation. 22

CONCLUSION.. 24

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal,
556 U.S. 662 (2009)..................................................... 9, 10, 16, 22

Badgerow v. REJ Props., Inc.,
__ F.3d __, No. 19-30584, 2020 WL 5494911

..... (5th Cir. Sept. 11, 2020)............................................................... 19

Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)................................................................. passim

Bostock v. Clayton Cnty.,
140 S. Ct. 1731 (2020)..................................................... 16, 18, 21

Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)........................................................... 11, 12, 14

Burrage v. United States,
571 U.S. 204 (2014)................................................................ 18, 21

Cicalese v. Univ. of Tex. Med. Branch,
924 F.3d 762 (5th Cir. 2019)................................................. passim

EEOC v. EmCare, Inc.,
857 F.3d 678 (5th Cir. 2017)....................................................... 12

EEOC v. Rite Way Serv., Inc.,
819 F.3d 235 (5th Cir. 2016)....................................................... 19

Feist v. La., Dep’t of Just.,
730 F.3d 450 (5th Cir. 2013)....................................................... 20

Garcia v. Pro. Contract Servs., Inc.,
938 F.3d 236 (5th Cir. 2019)................................................ 15, 20

LeMaire v. La. Dep’t of Transp. & Dev.,
480 F.3d 383 (5th Cir. 2007)....................................................... 14

Long v. Eastfield Coll.,
88 F.3d 300 (5th Cir. 1996)......................................................... 15

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)...................................................................... 11

Outley v. Luke & Assocs., Inc.,
840 F.3d 212 (5th Cir. 2016)....................................................... 19

Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000)...................................................................... 11

Royal v. CCC & R Tres Arboles, L.L.C.,
736 F.3d 396 (5th Cir. 2013)................................................ 17, 19

Shackelford v. Deloitte & Touche, LLP,
190 F.3d 398 (5th Cir. 1999)....................................................... 20

Staub v. Proctor Hosp.,
562 U.S. 411 (2011)...................................................................... 19

Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002)...................................................................... 11

Thomas v. Tex. Dep’t of Crim. Just.,
220 F.3d 389 (5th Cir. 2000)....................................................... 12

Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338 (2013)...................................................................... 15

Wooten v. McDonald Transit Assocs., Inc.,
788 F.3d 490 (5th Cir. 2015)....................................................... 12

Zamora v. City of Houston,
798 F.3d 326 (5th Cir. 2015).......................................... 16, 19, 21

Court Filings and Orders

Am. Compl., Wright v. Union Pac. R.R. Co.,
No. 4:16-02802 (S.D. Tex. Mar. 17, 2017), ECF No. 21......... 3

Order of Dismissal, Wright v. Union Pac. R.R. Co.,
No. 4:16-02802 (S.D. Tex. Jan. 12, 2018), ECF No. 64.......... 3

Order Granting & Den. Mot. Summ. J., Wright v. Union Pacific R.R. Co.,
No. 4:16-02802 (S.D. Tex. Dec. 8, 2017), ECF No. 52........... 3

Statutes

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq............................................................................................................. 1

42 U.S.C. § 2000e-3(a)................................................................. 12, 14

Federal Rules

Federal Rule of Civil Procedure 8................................ 10, 11, 22, 24

Federal Rule of Civil Procedure 8(a)(2)...................................... 1, 10

Federal Rule of Civil Procedure 12(b)(6).................................. passim

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (EEOC or Commission) is the primary agency charged by Congress with administering and enforcing federal laws prohibiting workplace discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal concerns the proper pleading standard for retaliation claims under Title VII, an issue of central importance to the EEOC. Ruling for the plaintiff’s former employer on a motion to dismiss her Second Amended Complaint (SAC), the district court here accepted the employer’s explanation for its actions and described the complaint as providing “[n]o evidence” of the causation element of her retaliation claim. ROA.265. In so doing, the court incorrectly imposed a heightened pleading standard on the plaintiff, in excess of the requirements established in Federal Rule of Civil Procedure 8(a)(2). The operative complaint alleged a plausible claim of retaliation that put the defendant on notice, and thus the district court should have allowed the case to proceed beyond the pleading stage. Because the EEOC has a strong interest in the proper application of pleading standards to Title VII claims, it offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF ISSUE[1]

Whether the district court erred in granting the defendant’s motion to dismiss the plaintiff’s Title VII retaliation claim under Federal Rule of Civil Procedure 12(b)(6) on the ground that the operative complaint purportedly failed adequately to allege causation.

STATEMENT OF THE CASE

I. Factual Background[2]

Plaintiff-Appellant Aisha Wright worked for Defendant-Appellee Union Pacific Railroad Company (Union Pacific) for over twenty years, from 1996 until her termination in 2018. ROA.195, 204 (SAC ¶¶ 6, 59). In 2013, Wright began working as a claims representative in the company’s Palestine, Texas, location. ROA.195 (SAC ¶ 8). While working in Palestine, Wright experienced discrimination based on her race, gender, and age, and retaliation for complaining of discrimination. ROA.196 (SAC ¶ 9). In 2015, Wright made a complaint of discrimination and retaliation to Union Pacific, and she filed an EEOC charge asserting the same. ROA.196 (SAC ¶ 9).

In March 2016, Union Pacific terminated Wright from her claims representative position, and she took a lower-paying, physically-demanding position in Union Pacific’s Houston facility in April 2016. ROA.196 (SAC ¶¶ 10-11). In August 2016, Wright filed suit against Union Pacific alleging Title VII and other claims concerning her work in Palestine. ROA.196-97 (SAC ¶ 13); Am. Compl. at 1-2, Wright v. Union Pac. R.R. Co., No. 4:16-02802 (S.D. Tex. Mar. 17, 2017), ECF No. 21. The parties ultimately settled in 2018. Order of Dismissal at 1, Wright v. Union Pac. R.R. Co., No. 4:16-02802 (S.D. Tex. Jan. 12, 2018), ECF No. 64.[3]

This appeal concerns actions Union Pacific took against Wright after she began working in Houston in April 2016. Soon after Wright started working in Houston, her new supervisor, Duane Merchant, “expressly asked Ms. Wright questions about her discrimination claims.” ROA.196 (SAC ¶ 12). Merchant “specifically asked Ms. Wright whether [Union Pacific] had discriminated against her.” ROA.196 (SAC ¶ 12). Merchant told Wright that her husband had filed an employment complaint against Union Pacific and offered Wright referrals to attorneys whom Wright could contact for help. ROA.196 (SAC ¶ 12). Wright believed that other Union Pacific managers in Houston and Palestine—including her former supervisor from Palestine, who transferred to Houston—knew of her discrimination and retaliation complaints and lawsuit. ROA.197 (SAC ¶¶ 15-17).

In late June 2018, Wright received a call to report for testing for a new position at Union Pacific. ROA.198 (SAC ¶ 23). Wright had to miss work to take the test at the appointed time. ROA.198 (SAC ¶ 23). Merchant marked Wright as being off work without pay for the missed hours, and Wright asked Merchant to substitute vacation time so she would not lose pay. ROA.198 (SAC ¶ 24). Merchant said she would think about it, but Wright later learned Merchant had not converted the missed hours to vacation time. ROA.198 (SAC ¶¶ 24-25). Wright appealed to Merchant’s superior, who affirmed Merchant’s decision. ROA.198 (SAC ¶ 25). But Wright noticed a change in Merchant’s demeanor after this incident, and she believed that Merchant sought to damage her employment record. ROA.198-99 (SAC ¶¶ 26-27).

On July 10, 2018, Merchant called Wright into her office to review a tape of Wright receiving merchandise. ROA.199 (SAC ¶ 28). Wright believed she had not erred in receiving the merchandise. ROA.199 (SAC ¶ 28). Then, on July 19, 2018, Merchant informed Wright she was going to write her up and directed Wright to come into her office for a coaching meeting after Wright finished her shift. ROA.199 (SAC ¶¶ 29-30). Wright requested that a union representative be present for the meeting. ROA.199 (SAC ¶ 30). Merchant telephoned Dennis Williams, a local union chairman who represented Wright in Palestine, but could not reach him. ROA.199 (SAC ¶¶ 30-31).

Nevertheless, Merchant told Wright they would proceed with the meeting. ROA.199 (SAC ¶ 31). Wright assented but repeated that she wished to have union representation. ROA.199 (SAC ¶ 32). Wright called a national union representative, Jeff Egnoske, and told him that she felt harassed because Merchant continued to insist angrily that Wright come into her office for coaching. ROA.199-200 (SAC ¶¶ 32, 34). Merchant’s approach and demeanor scared Wright. ROA.200 (SAC ¶ 35). While Wright was speaking to Egnoske, she felt panicked, and her breathing became labored. ROA.200 (SAC ¶ 35). Egnoske told Wright that she should seek emergency medical attention for her labored breathing. ROA.200 (SAC ¶ 35). Wright went to the emergency room and learned she was having a panic/stress attack. ROA.200 (SAC ¶ 36).

The next day, July 20, Merchant told Wright she wanted to move forward with the write-up. ROA.200 (SAC ¶ 37). Wright agreed but again requested union representation. ROA.200 (SAC ¶ 37). Wright asked for a postponement after speaking to another union representative, who advised Wright of her right to request representation for the coaching meeting, and who recommended seeking a postponement if a representative was not available. ROA.201 (SAC ¶¶ 40-41).

That same day, July 20, Wright contacted Union Pacific’s internal Equal Employment Opportunity (EEO) line and complained that Merchant “has caused a hostile work environment,” that “[t]his is not the only time she has discriminated against me,” and that “[s]he also continually discriminated against females at this location.” ROA.201-02 (SAC ¶¶ 43-44). Wright further complained to the EEO line: “I feel like I am being singled out. [Merchant] seemed to mock me by saying [‘][W]hat do you want Dennis [Williams] to represent you?[’]” ROA.202 (SAC ¶ 44).

Shortly after Wright reported to work on July 23, a Monday and the first business day after Wright’s internal EEO complaint, Merchant reiterated to Wright that she wanted to complete the coaching session. ROA.202 (SAC ¶ 46).

Merchant maintained that she told Wright that this was her final attempt at coaching and that failure to participate in the coaching could trigger discipline. ROA.202 (SAC ¶ 47). Wright again requested union representation and stated that she was not attempting to avoid complying with Merchant’s instructions. ROA.202-03 (SAC ¶ 49). Merchant pulled Wright out of service (i.e., suspended her) for violation of company rules and insubordination, pending investigation. ROA.203 (SAC ¶ 50).

The next day, July 24, Egnoske and Williams, the union representatives, called Wright and instructed her to come to work on July 25 at 8:00 a.m. to meet with Merchant for the coaching session. ROA.203 (SAC ¶ 51). Williams agreed to participate in the coaching session as Wright’s union representative. ROA.203 (SAC ¶ 51). But Merchant was not at work when Wright arrived at the appointed time on July 25. ROA.203 (SAC ¶ 52). A supervisor attempted to call Merchant but could not reach her. ROA.203 (SAC ¶¶ 52-53). Wright apprised Williams of Merchant’s absence, and he directed Wright to go home as her status (suspension) had not changed. ROA.203 (SAC ¶ 53). That same day, July 25, Union Pacific issued a notice of investigation to Wright informing her of a hearing that would determine whether to uphold charges of Insubordination and Reporting and Failing to Comply with Instructions. ROA.203 (SAC ¶ 54).

At the hearing, Wright testified that she never refused to participate in the coaching meeting but that she wished to have union representation present. ROA.203-04 (SAC ¶¶ 56-57). Wright also testified that she had requested and received union representation for coaching meetings throughout more than twenty years of employment at Union Pacific, and that she had never previously been denied representation. ROA.204 (SAC ¶¶ 57-58). On August 23, Union Pacific notified Wright that the charges were upheld and that the company was terminating her. ROA.204 (SAC ¶ 59).

II. District Court Decision

Wright filed suit against Union Pacific in district court under, inter alia, Title VII. ROA.194 (SAC ¶ 1). As pertinent here, Wright alleged that her former employer retaliated against her in violation of Title VII by suspending and terminating her because of her 2016 lawsuit and her July 2018 internal complaint to the EEO line. ROA.207-08 (SAC ¶¶ 78-82).

The district court granted Union Pacific’s motion to dismiss Wright’s Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). ROA.263. The district court acknowledged that Wright alleged that (1) on July 20, 2018, “she filed an internal complaint against Merchant for having a work environment that was hostile,” (2) on July 23, Wright was “suspended pending investigation,” and (3) “Union Pacific Railroad terminated Wright” “[a]fter a hearing on August 15.” ROA.263.

The court discussed the standard for dismissal under Rule 12(b)(6), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the propositions that “a plaintiff must assert a plausible claim supported by useful facts,” “[a]bstract conclusions are not facts,” and “[t]he facts must be relevant and specific enough so that the right to relief is more than speculative.” ROA.264. In dismissing Wright’s Title VII retaliation claim, the court explained its reasoning in a single paragraph:

Wright claims that Union Pacific violated Title VII by retaliating against her for her earlier lawsuit against the company and for filing an internal complaint against Merchant. Her claim shows no connection between her termination and her 2016 lawsuit, which was settled in February 2018. No evidence supports that Merchant retaliated against Wright after she complained. Merchant removed Wright from service because she refused to complete the coaching.

ROA.265.

ARGUMENT

The district court erred in dismissing Wright’s Title VII retaliation claim under Federal Rule of Civil Procedure 12(b)(6).

Wright’s operative district court complaint alleged that Union Pacific suspended and terminated her after she filed a Title VII suit against the company and shortly after she lodged an internal sex-discrimination complaint, activity that is protected by Title VII’s antiretaliation provision. The district court granted Union Pacific’s motion to dismiss Wright’s Title VII retaliation claim under Federal Rule of Civil Procedure 12(b)(6), holding that Wright’s SAC did not adequately allege any causal connection between her protected activity and her suspension and termination. In reaching that conclusion, the district court accepted the employer’s explanation for taking these actions and faulted the SAC for assertedly providing “[n]o evidence” of retaliation. ROA.265

The district court erred. The purpose of the pleading requirement is to ensure that a plaintiff alleges sufficient facts, “taken as true,” to put the defendant on notice of the plaintiff’s claim, Twombly, 550 U.S. at 555-56, and complaints that provide such notice should “unlock the doors” to discovery. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Requiring more at the complaint stage—as the district court did here in, for example, pointing to a lack of “evidence,” ROA.265—prevents the plaintiff from proceeding to the stage of litigation designed to allow her to acquire the evidence needed to prove her claim.

Contrary to the district court’s reasoning, the SAC met the minimal standards of Federal Rule of Civil Procedure 8, which a Title VII retaliation plaintiff may satisfy by alleging sufficient facts on the “ultimate elements” of her claim. Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019). In this appeal, only the “ultimate element” of causation is at issue, and the SAC asserted sufficient facts to support a causal link between Wright’s protected activity and her suspension and termination.

A. To survive a motion to dismiss under Rule 12(b)(6) on a Title VII retaliation claim, a complaint need only provide the defendant adequate notice by alleging sufficient facts on the ultimate elements of the claim.

Under Federal Rule of Civil Procedure 8, a district court complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Such a statement “give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555.

To provide such “notice” of the claim to the defendant, and to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual matter which, when “taken as true,” states “a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 556, 570. “[D]etailed factual allegations” are not required at the pleading stage. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555 (same). “Asking for plausible grounds to infer [unlawful conduct] does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [such conduct].” Twombly, 550 U.S. at 556. Therefore, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id. (citation and quotation marks omitted).

Consistent with Rule 8 and Twombly and Iqbal’s plausibility standard, this Court has made clear that a Title VII plaintiff is required only to “plead sufficient facts on all of the ultimate elements of . . . [her] claim to make [her] case plausible.” Cicalese, 924 F.3d at 766 (emphasis omitted). A Title VII plaintiff “need not make out a prima facie case” under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), “in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim.”[4] Cicalese, 924 F.3d at 766 (explaining that the Supreme Court, in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002), “has distinguished the McDonnell Douglas evidentiary standard from pleading requirements”).

The “ultimate elements” of a Title VII retaliation claim are (1) a “materially adverse” action, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006), (2) taken against a plaintiff “because,” 42 U.S.C. § 2000e-3(a), (3) she engaged in protected activity, id. See also EEOC v. EmCare, Inc., 857 F.3d 678, 683 (5th Cir. 2017) (explaining that, to prevail on a Title VII retaliation claim at the fact-finding stage of a lawsuit, a plaintiff must establish evidence of an adverse action, protected activity, and a causal connection);[5] cf. Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 494, 498-99 (5th Cir. 2015) (holding that plaintiff’s allegations of retaliation under the Age Discrimination in Employment Act were “sufficient to satisfy the low threshold of Rule 8” where the plaintiff alleged that, “in October 2010, [he] filed an age-discrimination claim with the EEOC, after which [the employer] ‘discriminated and retaliated against [him], and created a hostile work environment, until such time that [he] was constructively discharged on or about May 1, 2011’” (quoting complaint)). These ultimate elements of materially adverse action, protected activity, and causation are analogous to the ultimate elements of a Title VII claim alleging disparate treatment based on a protected characteristic (such as national origin): “(1) an adverse employment action, (2) taken against a plaintiff because of her protected status.” Cicalese, 924 F.3d at 767 (citation, quotation marks, and emphasis omitted).

B. The SAC adequately alleged facts on the ultimate elements of Wright’s Title VII retaliation claim.

In concluding that the SAC was insufficient, the district court failed to apply faithfully the standards outlined above. In district court, Union Pacific appropriately did not contest that the SAC adequately alleged the “materially adverse action” and “protected activity” elements of a Title VII retaliation claim. See ROA.216-17. The district court thus did not address those elements, and they are not at issue in this appeal.

Contrary to the district court’s reasoning, the SAC adequately alleged facts regarding causation, the only element of Wright’s retaliation claim that Union Pacific disputed. That is so because the SAC permits an inference that Union Pacific took materially adverse actions against Wright because of her July 2018 internal EEO complaint or because of both her 2018 internal complaint and her prior protected activity that culminated in her 2016 lawsuit.

1. Union Pacific properly did not contest that Wright adequately pleaded “materially adverse actions” and “protected activity” in her complaint.

For good reason, Union Pacific has not disputed that Wright’s SAC adequately alleged the “materially adverse action” element of her retaliation claim. The SAC alleged conduct by Union Pacific that “could well dissuade a reasonable worker from making or supporting a charge of discrimination”—the standard for determining whether an employer has inflicted a “materially adverse” action on an employee. Burlington N., 548 U.S. at 57. In particular, the SAC alleged that Wright was “pull[ed] . . . out of service” (i.e., suspended) for almost a month (between July 24 and August 23) and then “terminated.” ROA.203-04 (SAC ¶¶ 50, 59). See Burlington N., 548 U.S. at 71-73 (37-day suspension without pay could constitute materially adverse action, even where employer later rescinded suspension and provided backpay); LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007) (termination); id. at 390 (two-day suspension without pay could dissuade reasonable worker from engaging in protected activity).

Union Pacific has also appropriately declined to dispute that the SAC adequately alleged the “protected activity” element by identifying two examples: (1) Wright’s protected challenges to actions Union Pacific took against her before her transfer to Houston in 2016, including internal discrimination complaints in 2015, a 2015 EEOC charge, and the 2016 lawsuit against Union Pacific alleging Title VII violations; and (2) Wright’s July 2018 internal complaint to Union Pacific’s EEO line. ROA.196-97, 201-02 (SAC ¶¶ 9, 13, 43-44). Wright’s 2015 EEOC charge and 2016 lawsuit were protected “participation” because they involved “ma[king] a charge, testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e-3(a). Wright’s 2015 internal complaints, 2015 charge, and 2016 lawsuit were also protected “opposition” because Wright “opposed any practice made an unlawful employment practice” under Title VII. Id. Wright again engaged in opposition through her July 2018 internal complaint to the EEO line, in which she alleged, inter alia, that Merchant, her supervisor, “caused a hostile work environment” and “discriminated against females.” ROA.201-02 (SAC ¶ 43-44); see Long v. Eastfield Coll., 88 F.3d 300, 306 n.5 (5th Cir. 1996) (“using the employer’s internal grievance mechanisms” is opposition (citation omitted)).

2. Wright pleaded sufficient facts on the ultimate element of causation.

As noted supra pp. 7-8, Wright’s supposed failure to allege causation was the district court’s sole justification in granting dismissal. See ROA.265. The SAC provided sufficient facts respecting this ultimate element, and the district court’s reasoning concluding otherwise was fundamentally flawed.

a. The facts alleged in the SAC were sufficient to support an inference of causation.

Contrary to the district court’s reasoning, the SAC alleged sufficient facts to support the inference that there was a causal link between Wright’s July 2018 internal EEO complaint and her suspension and termination. Cf. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (Title VII retaliation plaintiffs must ultimately show protected activity “was a but-for cause of the alleged adverse action by the employer”); Garcia v. Pro. Contract Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019) (False Claims Act retaliation) (explaining that “Nassar’s heightened but-for causation requirement applies only in the third step (the pretext stage) of the McDonnell Douglas framework”). Furthermore, the SAC offered facts permitting an inference that Wright’s prior protected activity culminating in her 2016 lawsuit and her internal EEO complaint were both but-for causes of those actions. See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020) (“Often, events have multiple but-for causes.”).

i. The allegations in the SAC plausibly show that Union Pacific subjected Wright to suspension and termination because of her July 2018 internal EEO complaint. The SAC asserted facts that go to employer knowledge of the complaint, that pertain to Merchant’s influence on Wright’s termination, that demonstrate temporal proximity between the complaint and the adverse actions, and that undermine Union Pacific’s claimed justification for the actions. “[D]raw[ing] on its judicial experience and common sense,” Iqbal, 556 U.S. at 679, this Court should conclude that these factual assertions, taken together, plausibly give rise to an inference of but-for causation.

To begin, Wright’s allegation that she made an internal discrimination complaint to the company’s EEO line, ROA.201-02 (SAC ¶¶ 43-44), plainly supports the inference that someone at Union Pacific knew of her complaint. At the fact-finding stage of a lawsuit, evidence that an employer knew of protected activity goes to causation. See Zamora v. City of Houston, 798 F.3d 326, 333 (5th Cir. 2015) (affirming denial of employer’s motion for judgment as a matter of law; citing supervisors’ awareness of protected activity in summarizing employee’s evidence that supervisors were “motivated by retaliatory animus”); Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 404 (5th Cir. 2013) (reversing summary judgment for employer; citing decisionmaker’s awareness of employee’s protected activity in concluding that employee raised a genuine issue of fact as to causation). Accordingly, allegations of employer knowledge in a district court complaint lend plausibility to an asserted causal link between protected activity and materially adverse actions.

The SAC also alleged facts that permit an inference that a specific decisionmaker—Merchant—knew of Wright’s internal EEO complaint against her. It is plausible that Merchant learned of the complaint to the EEO line between July 20, when Wright filed her complaint, and July 23, when she suspended Wright. See ROA.201-03 (SAC ¶¶ 43-44, 50). According to the SAC, Merchant’s actions regarding Wright escalated substantially on July 23, the first business day after July 20: Merchant told Wright that she would be deemed insubordinate if she did not participate in the coaching, and Merchant then suspended Wright when she again requested union representation for the coaching. ROA.202-03 (SAC ¶¶ 47-50). It is also plausible that—even if Merchant was unaware of the EEO complaint on July 23—she learned of it by July 25, when Union Pacific issued a notice of hearing on the charge of insubordination to Wright. See ROA.203 (SAC ¶ 54). In particular, Wright’s allegations, taken as true, permit an inference that although Merchant had initially agreed to coach Wright with union representation on July 25 (as union representatives Williams and Egnoske relayed to Wright on July 24), Merchant learned something that changed her mind before July 25, when she did not appear for the scheduled coaching session. See ROA.203 (SAC ¶¶ 51-54). That is, it is plausible that Merchant became aware of Wright’s internal EEO complaint after agreeing to the July 25 meeting, and that she decided not to appear for the meeting—and to proceed with disciplining Wright instead—because of Wright’s internal EEO complaint against her. See ROA.203 (SAC ¶¶ 51-54).

In addition to alleging that Merchant directly made the decision regarding Wright’s suspension, ROA.203 (SAC ¶ 50), the SAC alleged facts supporting an inference that Merchant’s allegedly retaliatory actions of suspending Wright and charging her with infractions were also but-for causes of Wright’s termination. If we “change one thing at a time and . . . the outcome changes,” “we have found a but-for cause.” Bostock, 140 S. Ct. at 1739. Wright’s termination “is the outcome or consequence of” Merchant’s decision to suspend and charge Wright because “the former would not have occurred but for the latter.” Burrage v. United States, 571 U.S. 204, 212 (2014); ROA.203-04 (SAC ¶¶ 50, 54, 59). Although Wright was terminated after a hearing, ROA.203-04 (SAC ¶¶ 54, 59), an “action” motivated by retaliatory animus “may remain a causal factor” even where there are additional “layers of review,” where that review “base[s] . . . disciplinary recommendations” on the biased action or “takes [the biased action] into account” without making an independent determination. Zamora, 798 F.3d at 334-35 (quoting Staub v. Proctor Hosp., 562 U.S. 411, 421 (2011)).

The SAC offered additional facts supporting an inference of causation, including allegations of close temporal proximity between Wright’s internal EEO complaint and her suspension and termination, which “strongly supports a causal link.” Royal, 736 F.3d at 404; see also Badgerow v. REJ Props., Inc., __ F.3d __, No. 19-30584, 2020 WL 5494911, at *4 (5th Cir. Sept. 11, 2020) (close temporal proximity between adverse action and protected activity establishes causation at the prima facie stage). Merchant suspended Wright three calendar days (and one business day) after Wright’s complaint to the EEO line, Wright received a hearing notice five calendar days after the complaint, and Wright was terminated based on the hearing about one month after complaining. ROA.201-04 (SAC ¶¶ 43-44, 50, 54, 59). See Outley v. Luke & Assocs., Inc., 840 F.3d 212, 219 (5th Cir. 2016) (“close timing” of “two months” “between [plaintiff’s] protected activity” and a materially adverse action was “sufficient to show causal connection for purposes of a prima facie case”); EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 238-39, 244-45 (5th Cir. 2016) (where approximately five weeks elapsed between protected activity and termination, citing “strong temporal proximity” among evidence supporting conclusion that employer’s claimed reason for termination was pretextual).

Moreover, the SAC addressed causation through its allegations contesting Union Pacific’s claimed justification for Wright’s termination. The SAC alleged that Wright disagreed with the underlying reason for Merchant’s proposed coaching (Wright’s supposed error in receiving merchandise); that Wright repeatedly expressed to Merchant that she was willing to participate in coaching with union representation; and that, during her twenty years at Union Pacific, she had routinely enjoyed union representation in similar contexts. ROA.199-204 (SAC ¶¶ 28, 30, 37, 41, 49, 57-58). Those allegations go to causation because they call into question Union Pacific’s asserted “cause” of Wright’s suspension and termination. At the summary judgment stage, evidence “disput[ing] . . . events leading up to” a materially adverse action may help show that an employer’s claimed reasons for the action are pretextual, Garcia, 938 F.3d at 244 (False Claims Act retaliation) (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999) (Title VII retaliation)), and a showing of pretext may establish but-for causation, Feist v. La., Dep’t of Just., 730 F.3d 450, 454 (5th Cir. 2013). Accordingly, even though Wright was not required to assert pretext (or a prima facie case) in her complaint, see Cicalese, 924 F.3d at 766, her allegations “disput[ing] . . . events leading up to” her suspension and termination bolster the plausibility of a causal link at the pleading stage.

ii. The SAC also alleged facts that support a causal connection between Wright’s protected activity culminating in her 2016 lawsuit and her suspension and termination. The district court erred in determining that Wright’s “claim shows no connection between her termination and her 2016 lawsuit.” ROA.265. Again, allegations of employer knowledge lend plausibility to a plaintiff’s assertion of a causal link, cf. Zamora, 798 F.3d at 333, and Wright alleged that management in Houston knew of her earlier internal discrimination complaints, EEOC charge, and Title VII lawsuit. ROA.197 (SAC ¶¶ 15-17). In particular, Wright alleged facts that would demonstrate that Merchant herself knew of Wright’s prior protected activity: Merchant directly asked Wright about her prior discrimination complaint when Wright began working in Houston. ROA.196 (SAC ¶ 12).

Moreover, the facts alleged in the SAC offer a narrative that makes it possible to infer that Wright’s earlier protected activity, together with her July 2018 internal EEO complaint, were both but-for causes of Wright’s suspension and termination. See Bostock, 140 S. Ct. at 1739 (“Often, events have multiple but-for causes.”); Burrage, 571 U.S. at 211 (a factor is a but-for cause if it “combines with other factors to produce the result”). To begin, the SAC alleged that Merchant began treating Wright differently after Wright went to Merchant’s superior regarding a disagreement with Merchant on an attendance issue. ROA.198-99 (SAC ¶¶ 23-27). That allegation supports the inference that Merchant viewed Wright’s challenge with concern because she knew that Wright had previously asserted formal complaints against a supervisor: her complaints concerning race, gender, and age discrimination prior to transferring to Houston, which culminated in her earlier Title VII lawsuit. See ROA.196-97 (SAC ¶¶ 9, 13). Then, as discussed supra pp. 19-20, the SAC alleged that Merchant wrongly suspended Wright—and instituted proceedings resulting in her termination—shortly after Wright made her July 2018 internal complaint to the EEO line. ROA.201-02, 204 (SAC ¶¶ 43-44, 50, 54, 59). Again, Merchant’s alleged pattern of conduct permits an inference that Merchant acted from concern that Wright would continue to pursue her EEO complaint, given Merchant’s knowledge that Wright pursued her earlier discrimination complaint.

b. The district court made fundamental errors in concluding that Wright did not adequately allege causation.

In addition to failing to appreciate that the SAC alleged factual matter regarding causation sufficient to satisfy Rule 8, the district court made at least three other fundamental errors in determining that the SAC did not adequately allege causation. First, the district court held that Wright’s SAC must be dismissed because “[n]o evidence supports that Merchant retaliated against Wright after she complained.” ROA.265. But “evidence” is not required at the complaint stage. Parties obtain evidence during discovery, and a well-pleaded complaint “unlock[s] the doors” to that stage of litigation. Iqbal, 556 U.S. at 678. Again, the purpose of Rule 8’s pleading requirement is to provide “the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555, before the litigation proceeds to discovery.

Second, in accepting Union Pacific’s account that “Merchant removed Wright from service because she refused to complete the coaching,” ROA.265, the court failed to “take[] as true” the “factual matter” alleged in the SAC, as required at the motion-to-dismiss stage. Cicalese, 924 F.3d at 765. The SAC alleged that Union Pacific “terminated [Wright’s] employment because of her complaints of discrimination and retaliation,” ROA.204 (SAC ¶ 62), and it alleged facts that contest Union Pacific’s explanation for the termination, ROA.199-204 (SAC ¶¶ 28, 30, 37, 41, 49, 57-58). That is, as explained supra p. 20, the SAC alleged that Wright believed the underlying reason for Merchant’s proposed coaching was unfounded; that Wright repeatedly expressed willingness to participate in coaching with union representation; and that, during her long tenure at Union Pacific, she routinely enjoyed union representation in similar contexts. The court was required to take these allegations as true, and it disregarded that requirement in adopting Union Pacific’s contrary version of events.

Third, the district court erred to the extent it treated Union Pacific’s explanation that “Merchant removed Wright from service because she refused to complete the coaching,” ROA.265, as a “legitimate, nondiscriminatory reason” under the McDonnell Douglas burden-shifting framework. The court was also mistaken insofar as it assumed that Wright could not show that this justification was pretextual, although the SAC alleged as much. ROA.204 (SAC ¶ 62). This Court has explained that courts “inappropriately heighten[] the pleading standard by subjecting a plaintiff’s allegations to a rigorous factual or evidentiary analysis under the McDonnell Douglas framework in response to a motion to dismiss” because “[s]uch inquiries are better suited to summary judgment.” Cicalese, 924 F.3d at 767.

These errors by the district court contravene the purpose of Rule 8 and heighten the pleading threshold beyond Twombly and Iqbal’s plausibility standard. We urge this court to reject the district court’s reasoning and conclude, for the reasons outlined supra pp. 15-22, that the SAC alleged sufficient facts regarding the ultimate element of causation.

CONCLUSION

For the reasons explained, the EEOC urges this Court to reverse the district court’s order dismissing Wright’s complaint under Federal Rule of Civil Procedure 12(b)(6), and to remand for further proceedings.

Respectfully submitted,

sharon fast gustafson

General Counsel

JENNIfer s. goldstein

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

s/Anne W. King

Anne W. King

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

September 25, 2020

[1] We take no position with respect to any other issue raised in this appeal.

[2] Because this is an appeal of an order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the facts below come from the allegations made in the SAC, ROA.194-210, unless otherwise specified. See Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019) (courts analyzing sufficiency of complaint under Rule 12(b)(6) “take[] as true” “factual matter alleged in the complaint”).

[3] The district court in Wright’s August 2016 lawsuit denied Union Pacific’s motion for summary judgment in part with respect to some of Wright’s claims under the Age Discrimination in Employment Act and granted summary judgment to Union Pacific with respect to Wright’s other claims, including her Title VII claims. Order Granting & Den. Mot. Summ J. at 32, Wright v. Union Pacific R.R. Co., No. 4:16-02802 (S.D. Tex. Dec. 8, 2017), ECF No. 52.

[4] Under the McDonnell Douglas burden-shifting evidentiary framework, a plaintiff seeking to prove a claim of disparate treatment through circumstantial evidence must first make out a “prima facie case” of employment discrimination. The burden then moves to the defendant to produce evidence of a legitimate, non-discriminatory explanation for its actions. If the defendant does so, the burden shifts back to the plaintiff to show the proffered explanation was a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-05; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000).

[5] In dictum, EmCare characterized the adverse action showing as requiring proof that “the employer took adverse employment action against the employee.” 857 F.3d at 683 (emphasis added). However, the Supreme Court underscored in Burlington Northern that Title VII’s antiretaliation provision encompasses employer “actions not directly related to . . . employment” or that “caus[e] . . . harm outside the workplace,” so long as those actions are “materially adverse,” which means they are “likely to dissuade employees from complaining or assisting in complaints about discrimination.” 548 U.S. at 57, 63, 70. EmCare quoted the “adverse employment action” language from Thomas v. Texas Department of Criminal Justice, 220 F.3d 389 (5th Cir. 2000), which this Court decided before Burlington Northern clarified the “materially adverse” action standard.