Page
TABLE OF AUTHORITIES......................................................... ii
STATEMENT OF INTEREST...................................................... 1
STATEMENT OF THE ISSUE..................................................... 2
STATEMENT OF THE CASE...................................................... 2
ARGUMENT................................................................................. 5
Lattinville-Pace’s FAC Sufficiently
Alleged a Claim of Wrongful Termination Under the ADEA............................. 5
A. The
governing pleading standard only requires alleging facts that make out a
facially plausible claim for relief, providing the defendant fair notice of the
claim and its factual basis.......................................... 5
B. Lattinville-Pace’s
FAC sufficiently stated a claim under the Federal Rules of Civil Procedure and
applicable precedents from the Supreme Court and this Court................................................................. 10
CONCLUSION............................................................................ 21
CERTIFICATE OF COMPLIANCE............................................ 23
Page(s)
Cases
Abrams v. Dep’t of Pub.
Safety,
764 F.3d 244 (2d Cir. 2014).......................................... 18
Arthur v. Pet Dairy,
593 F. App’x 211 (4th Cir. 2015).................................. 15
Ashcroft v. Iqbal,
556 U.S. 662 (2009)............................................... passim
Bell Atl. Corp. v.
Twombly,
550 U.S. 544 (2007)............................................... passim
Bing v. Brivo Sys., LLC,
959 F.3d 605 (4th Cir. 2020)......................................... 18
Carson v. Lake Cnty.,
865 F.3d 526 (7th Cir. 2017)......................................... 15
Castleberry v. STI Grp.,
863 F.3d 259 (3d Cir. 2017).......................................... 18
Causey v. Balog,
162 F.3d 795 (4th Cir. 1998)......................................... 19
EEOC v. Aerotek, Inc.,
815 F.3d 328 (7th Cir. 2016)......................................... 18
Francis v. Giacomelli,
588 F.3d 186 (4th Cir. 2009)..................................... 9, 13
Goldfarb v. Mayor &
City Council of Balt.,
791 F.3d 500 (4th Cir. 2015)......................................... 10
Greene v. Safeway Stores,
Inc.,
98 F.3d 554 (10th Cir. 1996)......................................... 18
Gross v. FBL Fin. Servs.,
Inc.,
557 U.S. 167 (2009)................................................ 10, 15
Guessous v. Fairview
Prop. Invs., LLC,
828 F.3d 208 (4th Cir. 2016)......................................... 16
Haskett v. T.S. Dudley
Land Co.,
648 F. App’x 492 (5th Cir. 2016).................................. 21
Houck v. Substitute Tr.
Servs., Inc.,
791 F.3d 473 (4th Cir. 2015)................................... 10, 17
Leal v. McHugh,
731 F.3d 405 (5th Cir. 2013)......................................... 15
Martinez v. UPMC
Susquehanna,
986 F.3d 261 (3d Cir. 2021).......................................... 20
McCleary-Evans v. Md.
Dep’t of Transp.,
780 F.3d 582 (4th Cir. 2015).................................. passim
O’Connor v. Consol. Coin
Caterers Corp.,
517 U.S. 308 (1996)...................................................... 12
Patrick v. Ridge,
394 F.3d 311 (5th Cir. 2004)......................................... 17
Ray v. Amelia Cnty.
Sheriff’s Off.,
302 F. App’x 209 (4th Cir. 2008)............................ 19, 20
Robinson v. City of
Phila.,
491 F. App’x 295 (3d Cir. 2012)................................... 15
SD3, LLC v. Black &
Decker (U.S.) Inc.,
801 F.3d 412 (4th Cir. 2015)......................................... 17
Sheppard v. David Evans
& Assocs.,
694 F.3d 1045 (9th Cir. 2012)................................. 18, 20
Swanson v. Citibank, N.A.,
614 F.3d 400 (7th Cir. 2010)......................................... 18
Swierkiewicz v. Sorema
N.A.,
534 U.S. 506 (2002).......................................... 6, 8, 9,
18
Tobey v. Jones,
706 F.3d 379 (4th Cir. 2013)........................................... 9
Wooten v. McDonald
Transit Assocs., Inc.,
788 F.3d 490 (5th Cir. 2015)......................................... 21
Zee Co. v. Williams,
Mullen, Clark & Dobbins, P.C.,
547 F. App’x 166 (4th Cir. 2013).................................. 16
Statutes
Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.......................................................... passim
29
U.S.C. § 623(a)(1).................................................... 10
29
U.S.C. § 631(a)........................................................ 10
Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq....................................................... 6, 8, 9,
16
Other Authorities
Fed. R. App. P. 29(a)........................................................... 2
Fed. R. Civ. P. 8(a)(2)................................................. passim
Fed. R. Civ. P. 8(d)(2)........................................................ 16
Fed. R. Civ. P. 8(d)(3)........................................................ 16
Fed. R. Civ. P. 12(b)(6)...................................... 6, 10, 17, 21
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 the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621 et seq. This appeal concerns the proper
pleading standard for claims under the ADEA,
an issue of central importance to the EEOC. In her complaint, the plaintiff
alleged that she was exceptionally qualified for her position and performing at
a high level but was nevertheless terminated without warning and replaced with
someone twenty-seven years younger and less qualified, allegedly because
defendant concluded that she was not a “cultural fit.” The employer then went
on to fire several other high-level executives and others who were near or over
sixty years old.
The
district court dismissed the plaintiff’s claim of age discrimination because it
found that the complaint asserted “conclusory allegations” rather than “facts
that show that her age was the but-for cause of her termination.” JA.34. In so ruling,
the court incorrectly imposed a heightened pleading standard on the plaintiff
that exceeded the requirements established in Federal
Rule of Civil Procedure 8(a)(2). Because the EEOC has a strong interest in the
proper application of pleading standards to ADEA
claims, it offers its views to the Court. See Fed. R. App. P. 29(a).
Where
the plaintiff’s complaint alleged, in detail, that she was highly qualified and
performing well, and that the defendant fired her without warning and replaced her
with a significantly younger, less-qualified and less-experienced individual, around
the same time that it fired several other employees who were near or over sixty
years old, did the district court err in concluding that she failed to state a
plausible claim of age discrimination under the ADEA?
Plaintiff
Marthe Lattinville-Pace alleged in her Amended Complaint (“FAC”) that she began
working for Defendant Intelligent Waves LLC as its Senior Vice President of
Human Resources on April 1, 2019, when she was sixty-five or sixty-six
years old.[3] JA.10 (FAC ¶ 29).
At the time of her hire, Lattinville-Pace had forty years of experience in
human resources (“HR”), including twenty-five years of leadership experience
overseeing workforces in the thousands at Fortune 100 and 200 companies in the
high-tech, governmental contractor, and service industries in the United
States, Canada, Europe, India, and the Middle East. JA.8, 20 (FAC ¶¶ 22-23,
65). She also had a bachelor’s degree, an MBA, a Leadership Certification in
HR, and various other relevant certifications. JA.9, 21 (FAC ¶¶ 25, 67).
The FAC alleged that Lattinville-Pace performed well at Intelligent Waves,
accomplished a number of goals, and received uniform praise from the company’s
senior management along with a large discretionary bonus. JA.10-15 (FAC ¶¶ 30-36,
39-43).
Intelligent
Waves hired Tony Crescenzo as its president on April 27, 2020. JA.16 (FAC
¶ 47). Lattinville-Pace alleged that she had weekly one-on-one meetings
with Crescenzo during which she received exclusively positive feedback. JA.13,
16 (FAC ¶¶ 39, 48). But on July 22, Crescenzo terminated her during
their weekly meeting, explaining only that she was not a “cultural fit.” JA.17
(FAC ¶¶ 51, 53). At the time of the termination Lattinville-Pace was
sixty-seven years old. JA.21 (FAC ¶ 68).
Lattinville-Pace
later learned that Crescenzo had started looking for her replacement in May
2020. JA.19 (FAC ¶ 60). Intelligent Waves hired Heidi Pirela, a
forty-year-old, as its Chief Human Resources Officer starting on August 2.
JA.20 (FAC ¶ 62). According to the FAC, Pirela was significantly
less experienced than Lattinville-Pace, having only twenty years of HR
experience with one company in one industry, where she managed a workforce of
only 165 employees. JA.8-9, 20 (FAC ¶¶ 21-24, 64-65). Pirela also
had less relevant education than Lattinville-Pace, with an MPA and an HR
Certificate, compared with Lattinville-Pace’s MBA, HR Leadership Certificate,
and additional relevant certifications. JA.9, 21 (FAC ¶¶ 25, 67). Lattinville-Pace
also alleged that she had extensive HR experience in “spinoff, merger, and
acquisition integration issues,” an area of particular interest to Intelligent
Waves in light of its expansion and development activities, while Pirela “had
limited to no HR experience in these complex areas.” JA.8-9, 20 (FAC ¶¶ 23,
66). The FAC further alleged that, after firing Lattinville-Pace, Intelligent
Waves also terminated two Vice Presidents, a Senior Director, and several other
employees, all of whom were near or over sixty. JA.21 (FAC ¶ 70).
Lattinville-Pace
asserted claims against Intelligent Waves for, inter alia, age
discrimination under the ADEA and state
law. JA.22-25 (FAC ¶¶ 71-100). The district court granted
Intelligent Waves’s motion to dismiss with prejudice, holding that
Lattinville-Pace “fail[ed] to show a causal connection between her age … and
her termination,” and instead “assert[ed] mere conclusions and formulaic
recitations.” JA.33. The court concluded that the complaint “failed to
assert facts that show that her age was the but-for cause of her termination,”
and “d[id] not show that her age played any role in Defendant’s decision to
terminate her employment — let alone the but-for cause.” JA.34. Instead,
according to the court, the complaint noted only that “she was replaced by a
woman who was 40 years old” and that “other high-level executives near or over
60 years of age were terminated.” JA.34. In the court’s view, these
“conclusory allegations” were insufficient. JA.34.
Under Federal Rule of Civil Procedure 8(a)(2) and cases from
the Supreme Court and this Court interpreting it, the FAC sufficiently alleged a
claim of wrongful termination under the ADEA.
The district court therefore erred in granting Intelligent Waves’s motion
to dismiss.
Federal Rule of Civil Procedure 8(a)(2) specifies that
a civil complaint must 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.” McCleary-Evans v. Md.
Dep’t of Transp., 780 F.3d 582, 585 (4th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (second alteration in original)). A defendant contending that a
complaint has not met this requirement may seek dismissal for “failure to state
a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6).
In
Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002), the Supreme Court addressed these principles in the context of
ADEA and Title
VII claims, holding that the “short and plain statement” component of Rule 8(a)(2) did not require plaintiffs to
allege specific facts making out a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). 534 U.S. at 510-12. In reaching this conclusion, the Court noted,
inter alia, that “the precise requirements of a prima facie case can
vary depending on the context,” and “[b]efore discovery has unearthed relevant
facts and evidence, it may be difficult to define the precise formulation of
the required prima facie case in a particular case.” Id. at 512. The Court also observed that
imposing a heightened pleading standard in employment-discrimination cases
would conflict with the plain language of Rule
8(a)(2). Id. Although it noted
the employer’s argument that a failure to impose a higher pleading standard
could “encourage disgruntled employees to bring unsubstantiated suits,” the
Court explained that “[a] requirement of greater specificity for particular
claims is a result that ‘must be obtained by the process of amending the
Federal Rules, and not by judicial interpretation.’” Id. at 514-15 (quoting Leatherman v. Tarrant Cnty. Narcotics Intel.
& Coordination Unit, 507 U.S 163, 168 (1993)).
The
Supreme Court subsequently revisited its interpretation of Rule 8(a)(2) in Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
where it explained that, “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Iqbal,
556 U.S. at 678 (quoting Twombly,
550 U.S. at 570)). Such plausibility exists if the facts alleged in the
complaint allow for “the reasonable inference that the defendant is liable for
the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556).
To meet this plausibility standard, the complaint’s factual allegations must
establish “more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at
678. Instead, the complaint must contain allegations that “raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. “Asking for plausible grounds to infer [unlawful activity]
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 activity].” Id.
at 556. The facts alleged need not be “detailed,” but a complaint must provide
more than mere “labels and conclusions,” “a formulaic recitation of the
elements of a cause of action,” or “naked assertion[s]” without “further
factual enhancement[s].” Iqbal,
556 U.S. at 678 (first alteration in original) (quoting Twombly, 550
U.S. at 555, 557) (also noting that “[t]hreadbare recitals of the elements of a
cause of action[] supported by mere conclusory statements” and “a legal
conclusion couched as a factual allegation” would not meet the standard); Twombly, 550 U.S. at 555, 557. The Court
explained that making this plausibility determination is “a context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at
679.
The
Court noted that the plaintiff is not required to show she is likely to prove
her case at the dismissal stage: “[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.” Twombly, 550 U.S. at 556 (citation
omitted). Instead, the touchstone, both before and after Twombly and Iqbal, is whether the complaint “give[s]
the defendant fair notice of what the … claim is and the grounds upon which it rests.”
Id. at 555 (second alteration in
original) (citation omitted); id.
at 565 n.10 (differentiating between an acceptable complaint with enough
factual information that the defendant “would know what to answer” from an
impermissible conclusory complaint affording the defendant “little idea where
to begin”).
Importantly,
the Court appeared to leave the core holding of Swierkiewicz intact. In Twombly, the Court emphasized that its
holding was consistent with Swierkiewicz’s conclusion that Title VII complaints do not need to meet a
heightened pleading standard or set forth facts establishing a prima facie case
of discrimination under McDonnell Douglas. Twombly, 550 U.S. at 569-70 & n.14; see
also McCleary-Evans, 780 F.3d
at 586 (“To be sure, [Twombly and Iqbal] did not overrule Swierkiewicz’s
holding that a plaintiff need not plead the evidentiary standard for
proving a Title VII claim — indeed, Twombly expressly reaffirmed Swierkiewicz’s
holding that the use of a heightened pleading standard for Title VII cases was contrary to the Federal
Rules’ structure of liberal pleading requirements.” (citation omitted)).
Elsewhere, Twombly cited Swierkiewicz favorably in explaining the
applicable dismissal standard. 550 U.S.
at 555-56, 563. Iqbal, for its part,
did not cite Swierkiewicz, either
positively or negatively.
In
applying these cases, this Court has emphasized certain guiding principles.
The Court has reaffirmed that Rule 8(a)(2)
still requires only a “short and plain statement” of entitlement to relief,
rather than detailed factual allegations, in order to provide the defendant
fair notice of the claim and the factual basis on which it rests. McCleary-Evans, 780 F.3d at 585 (quoting Twombly, 550 U.S. at 555); Tobey v. Jones, 706 F.3d 379, 387 (4th
Cir. 2013). Notice of a claim is not enough, however; under the Twombly/Iqbal
plausibility standard, a plaintiff must also “articulate facts, when accepted
as true, that ‘show’ that the plaintiff has stated a claim entitling him to
relief, i.e., the ‘plausibility of entitlement to relief.’” Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009) (quoting Iqbal, 556
U.S. at 678). Applying this standard, “[a] complaint should not be dismissed
as long as it provides sufficient detail about the claim to show that the
plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt.,
791 F.3d 500, 511 (4th Cir. 2015) (alterations and internal quotation marks
omitted). Once a plaintiff provides a plausible account of an entitlement to
relief, “her complaint survives a motion to dismiss under Rule 12(b)(6), regardless of whether there is
a more plausible alternative explanation.” Houck
v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015).
Lattinville-Pace’s
FAC stated a plausible ADEA claim under
the Twombly/Iqbal standard as interpreted by this Court. The ADEA applies to “individuals who are at least
40 years of age.” 29 U.S.C.
§ 631(a). As to those individuals, the statute generally forbids private
employers from, inter alia, discharging any of them “because of such
individual’s age.” 29 U.S.C. § 623(a)(1).
ADEA plaintiffs must show that age was a
“but-for” cause of their employer’s adverse action against them. Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 177 (2009).
The
district court concluded that the FAC “failed to assert facts that show that
[Lattinville-Pace’s] age was the but-for cause of her termination.”[4] JA.34. To the contrary, however, the
FAC’s allegations plausibly allow for the reasonable inference that Intelligent
Waves terminated Lattinville-Pace — and instead hired a significantly younger
and less qualified individual to fill her position — because of her age. See
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 556.
The
FAC does not simply recite the pertinent elements of an ADEA claim — an employment action based on the
plaintiff’s age. Instead, it sets out the factual basis for that conclusion.
The complaint alleged that Lattinville-Pace was sixty-seven years old and
performed her job satisfactorily. JA.10-15, 21 (FAC ¶¶ 31-36, 39-43, 68).
Intelligent Waves nevertheless terminated her, vaguely telling her that she
was not a “cultural fit,” and gave her job to Pirela, a less qualified, less
experienced woman who was twenty-seven years younger. JA.8-9, 17, 19-21
(FAC ¶¶ 22-24, 53, 61-62, 64-67). Intelligent Waves subsequently
terminated a number of other high-level executives and other employees who were
also near or over age sixty. JA.21 (FAC ¶ 70).
These
allegations, which describe in great detail Lattinville-Pace’s positive job
performance and the ways her qualifications exceeded those of her replacement, Pirela,
satisfied Rule 8(a)(2) because they gave
Intelligent Waves “fair notice of what the … claim is and the grounds upon
which it rests” — the animating purpose behind the rule. Twombly, 550 U.S. at 555 (alteration in
original) (citation omitted); cf. id.
at 565 n.10 (noting that plaintiffs’ complaint fell short of Rule 8(a)(2) because “a defendant seeking to
respond to plaintiffs’ conclusory allegations … would have little idea where to
begin”). Far from merely “conclusory” labels or “naked assertion[s]” lacking
“further factual enhancement[s],” Iqbal,
556 U.S. at 678, these specific details provided a plausible account of an
entitlement to relief under the ADEA. At
this early stage of the litigation, nothing more is required.
McCleary-Evans provides a useful
basis for comparison. In that case, this Court affirmed dismissal of the
complaint because, although the complaint noted that two jobs the plaintiff
desired went instead to two non-Black candidates and contended that the
decisionmakers were motivated by racial bias, it “did not include any
allegations regarding the qualifications or suitability of the persons hired to
fill the two positions.” 780 F.3d at
584. Absent such allegations, the court explained, the plaintiff “can only
speculate that the persons hired were not better qualified, or did not perform
better during their interviews, or were not better suited based on experience
and personality for the positions.” Id.
at 586. Such speculation, the court found, was insufficient to “support a reasonable
inference” of discrimination. Id.;
see also id. (noting that a
comparison of the relevant experience of the plaintiff and the comparator “is
precisely the kind of allegation that is missing from [the plaintiff’s]
complaint”); Iqbal, 556 U.S. at 678
(noting that to survive dismissal, a complaint must provide “further factual
enhancement” beyond “labels and conclusions” and “naked assertion[s]”).
Here,
in contrast, the FAC contained in spades the sort of comparative evidence this
Court found lacking in McCleary-Evans.
See JA.8-9, 17, 19-21 (FAC ¶¶ 22-24, 53, 61-62, 64-67). This
additional material provides the “‘factual enhancement’” needed “to cross ‘the
line between possibility and plausibility of entitlement to relief.’” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). Looking at the
allegations in the FAC regarding Lattinville-Pace’s and Pirela’s respective
qualifications, one could reasonably infer that a discriminatory motive led
Intelligent Waves to replace a more qualified employee with a less qualified
one, even if other explanations are also possible.
According
to the district court, the FAC alleged only that Lattinville-Pace “was replaced
by a woman who was 40 years old” and “that other high-level executives near or
over 60 years of age were terminated by Intelligent Waves LLC following her own
termination.” JA.34. But the district court was simply incorrect about this:
the FAC meticulously contrasted Lattinville-Pace’s qualifications and
experience with Pirela’s, providing precisely the sort of detail this Court
held necessary to survive a motion to dismiss. McCleary-Evans, 780 F.3d at 586
(explaining the importance of allegations regarding a comparator’s
qualifications and experience).
More
broadly, the district court erred to the extent it faulted Lattinville-Pace for
failing to prove “that her age was the but-for cause of her
termination.” JA.34. To survive a motion to dismiss, the allegations in a
complaint need only show that discrimination plausibly occurred; they need not
prove it conclusively. Twombly,
550 U.S. at 556 (noting there is no “probability requirement at the pleading
stage”; instead, the allegations only need to be plausible enough to create “a
reasonable expectation that discovery will reveal evidence” of
discrimination). “The plausibility standard is not akin to a probability
requirement.” Iqbal, 556 U.S. at
678.
Furthermore,
insofar as the district court referred to age needing to be “the”
but-for cause of the termination, rather than “a” but-for cause, because
it believed that Lattinville-Pace needed to show that age was the sole
reason for the termination, this was also erroneous. See JA.34 (emphases
added). For a plaintiff to prevail on an age discrimination claim against a
private employer, age need not be the sole cause of an employment decision so
long as it is a determinative cause. See Arthur v. Pet Dairy, 593 F. App’x 211, 220
(4th Cir. 2015) (“[P]ursuant to Gross,
for an event to be the ‘but-for cause,’ it need not be the sole cause of the
adverse employment action. … Age discrimination cases often present more than
one reason for an employer to take adverse action against an employee, but an
employee need not refute each negative mark on his record or every possible
legitimate ground for the employment decision to avoid summary judgment.”); see
also Carson v. Lake Cnty., 865
F.3d 526, 533 (7th Cir. 2017) (explaining that an ADEA plaintiff must show that age was a “‘but
for’ element” animating an adverse employment decision but “need not prove that
age was the sole motivation underlying” the action (citation omitted)); Leal v. McHugh, 731 F.3d 405, 415 (5th
Cir. 2013) (explaining, in an ADEA case,
that “‘but-for cause’ does not mean ‘sole cause’”); Robinson v. City of Phila., 491 F. App’x
295, 299 (3d Cir. 2012) (“We do not require that age discrimination be the sole
cause for an adverse employment decision to prevail on an age discrimination
claim.”); cf. Guessous v. Fairview
Prop. Invs., LLC, 828 F.3d 208, 218 (4th Cir. 2016) (analyzing analogous
language in Title VII’s antiretaliation provision and concluding that plaintiff
was required “only to show that the protected activity was a but-for cause of
her termination, not that it was the sole cause”).
Nor
does the availability of other plausible explanations for her termination affect
the validity of Lattinville-Pace’s ADEA
claim at the dismissal stage.[6] Lattinville-Pace
alleged a separate claim for national-origin discrimination under Title VII, but the Federal Rules of Civil
Procedure specifically permit the pleading of alternative or inconsistent
claims. Fed. R. Civ. P. 8(d)(2) (“A party
may set out two or more statements of a claim ... alternatively or
hypothetically …. If a party makes alternative statements, the pleading is
sufficient if any one of them is sufficient.”); id. 8(d)(3) (“A party may state as many
separate claims … as it has, regardless of consistency.”); Zee Co. v. Williams, Mullen, Clark &
Dobbins, P.C., 547 F. App’x 166, 168 n.3 (4th Cir. 2013) (explaining that
the plaintiff “was permitted to set out conflicting alternative theories in its
complaint without one constituting an admission against the other”).
Even
if the FAC may also be read to include other, nondiscriminatory explanations
for the termination, moreover, these are similarly not fatal to an otherwise
valid complaint. As this Court has explained, “If [a plaintiff’s] explanation
is plausible, her complaint survives a motion to dismiss under Rule 12(b)(6), regardless of whether there is
a more plausible alternative explanation.” Houck,
791 F.3d at 484. Courts may not weigh the relative probabilities of different
plausible explanations at the dismissal stage. Id.; see also SD3, LLC v. Black & Decker (U.S.) Inc.,
801 F.3d 412, 425 (4th Cir. 2015) (“When a court confuses probability and
plausibility, it inevitably begins weighing the competing inferences that can
be drawn from the complaint. But it is not our task at the motion-to-dismiss
stage to determine whether a lawful alternative explanation appears more likely
from the facts of the complaint.” (citation and alteration omitted)).
Thus,
although Intelligent Waves pointed in its district court briefing to conceivable
nondiscriminatory ways in which one could interpret the phrase “not a cultural
fit,” R.17 (Mem. in Supp. of Mot. to
Dismiss) at 6, PageID#104, these potential alternative explanations do not
justify dismissal of the complaint. See, e.g., Patrick v. Ridge, 394 F.3d 311, 317 (5th
Cir. 2004) (“[A] hiring official’s subjective belief that an individual would
not ‘fit in’ or was ‘not sufficiently suited’ for a job is at least as
consistent with discriminatory intent as it is with nondiscriminatory intent:
The employer just might have found the candidate ‘not sufficiently suited’ because
of a protected trait such as age, race, or engaging in a protected
activity. … It is, at bottom, a non-reason.”); Abrams v. Dep’t of Pub. Safety, 764 F.3d
244, 253 (2d Cir. 2014) (same); Greene
v. Safeway Stores, Inc., 98 F.3d 554, 561 (10th Cir. 1996) (holding that a
reasonable jury could interpret the statement that the plaintiff “didn’t fit in
with the new culture” as indicative of age bias); cf. EEOC v. Aerotek, Inc., 815 F.3d 328, 331
(7th Cir. 2016) (describing as “discriminatory” a customer request to a
staffing company for younger temporary workers because it felt that “a person
in their 40s or 50s would not be a cultural fit”).
In
addition, the allegations in the FAC were enough to establish a prima facie
case of age discrimination under the ADEA.
As explained above at pages 6 and 8-9, such allegations are not necessary to
progress beyond the dismissal stage. See Swierkiewicz, 534 U.S. at 515; McCleary-Evans, 780 F.3d at 584-85; Bing v. Brivo Sys., LLC, 959 F.3d 605,
616-17 (4th Cir. 2020). Because a prima facie case is one way to establish a
permissible inference of discrimination, however, courts have held that allegations
making out a prima facie case are sufficient to defeat a motion to
dismiss. See Castleberry v. STI
Group, 863 F.3d 259, 266 (3d Cir. 2017); Sheppard v. David Evans & Assoc., 694
F.3d 1045, 1050 n.2 (9th Cir. 2012); Swanson
v. Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir. 2010). To make out a
prima facie case of discriminatory discharge under the ADEA, a plaintiff must show “(1) [s]he is a
member of the protected class; (2) [s]he was qualified for the job and met the
employer’s legitimate expectations; (3) [s]he was discharged despite h[er]
qualifications and performance; and (4) following h[er] discharge, [s]he was
replaced by someone with comparable qualifications” who was “substantially
younger.” Causey v. Balog, 162
F.3d 795, 802 & n.3 (4th Cir. 1998). Lattinville-Pace alleged each of
these elements with the requisite specificity.
Numerous
other cases involving ADEA claims, in this
Court and other circuits, have found that allegations similar to those in
Lattinville-Pace’s FAC were sufficient to survive dismissal. In Ray v. Amelia County Sheriff’s Office, 302
F. App’x 209 (4th Cir. 2008), for example, the plaintiff alleged that “she is a
member of a protected class (she is forty-five years old), she suffered an
adverse employment action (her employment was terminated), and she was replaced
by a substantially younger employee who is less qualified for the position than
Ray.” Id. at 211. She also
alleged “possible reasons for the termination” that may have related to her
age, including a desire to have younger-looking people in the front office, a
preference for someone less knowledgeable about official policies and
procedures, and opposition to her use of accrued annual leave. Id. at 211-12. This Court held that the
district court erred in dismissing the claim: “Taken together, these
allegations provide the defendants with fair notice of the nature of her claim
and the grounds upon which it rests, and state a claim to relief that is
plausible, not merely speculative.” Id.
at 212.
Similarly,
Sheppard v. David Evans & Associates, 694 F.3d 1045
(9th Cir. 2012), involved a complaint alleging that (1) the plaintiff was “over
the age of forty”; (2) “her performance was satisfactory or better” and “[s]he
received consistently good performance reviews”; (3) she “was involuntarily
terminated from her position”; and (4) “[a]t the time of her termination there
were five comparators,” and these “younger comparators kept their jobs.” Id. at 1048 (quoting plaintiff’s
complaint). The Ninth Circuit held that the complaint was sufficient to
survive a motion to dismiss and vacated the district court’s dismissal. Id. at 1050 (“Although Sheppard’s
complaint is brief, her allegations are sufficient to state a prima facie case
of discrimination.”). The Third Circuit, in Martinez v. UPMC Susquehanna, 986 F.3d 261
(3d Cir. 2021), likewise held that the plaintiff successfully “state[d] the
heart of a prima facie case” of age discrimination under the ADEA when he alleged that “he is over forty,
he is qualified for the job,” “he was fired and not rehired,” and “his
replacements were not only ‘significantly younger,’ but also less qualified and
experienced.” Id. at 267. At the
dismissal stage, the court explained, the plaintiff was not required “to
anticipate and preempt the [defendant’s] possible explanations.” Id.
The
Fifth Circuit also reversed dismissal of an ADEA
claim when the plaintiff alleged “(1) he belong[ed] to a protected class; (2)
he applied for and was qualified for a position that was seeking applicants;
(3) he was rejected; and (4) following his rejection, another applicant not of
the protected class was hired.” Haskett
v. T.S. Dudley Land Co., 648 F. App’x 492, 495-96 (5th Cir. 2016) (citation
omitted). The court held that the dismissal was erroneous because the
complaint “gave [the employer] ‘fair notice’ of his age discrimination claim,
and therefore met Rule 12(b)(6)’s factual
sufficiency requirement.” Id. (noting
that the allegations were, if anything, “more factually detailed” than a
“bare-bones” complaint the court had deemed sufficient in another ADEA case, which “alleg[ed] only that the
complainant had worked for a company, that he filed an age discrimination
charge against the company, and that the company constructively discharged him
in response, causing him harm” (discussing Wooten
v. McDonald Transit Assocs., Inc., 788 F.3d 490, 498-99 (5th Cir. 2015)); see
also Wooten, 788 F.3d at 498-99
(holding that these allegations were “a far cry from the sort of ‘unadorned,
the-defendant-unlawfully-harmed-me accusation’ decried in Iqbal” and therefore “sufficient to
satisfy the low threshold of Rule 8”).
For
the foregoing reasons, the judgment of the district court should be vacated and
remanded for further proceedings, including appropriate discovery.
Respectfully
submitted,
CHRISTOPHER LAGE
Deputy General Counsel
JENNIfer s. goldstein
Associate General Counsel
elizabeth e. theran
Assistant General Counsel
/s/ Jeremy D. Horowitz
JEREMY D. HOROWITZ
Attorney,
Appellate Litigation Services
Office
of General Counsel
Equal
Employment Opportunity Commission
131
M St. NE, Fifth Floor
Washington,
DC 20507
(202)
921-2549
jeremy.horowitz@eeoc.gov
May 18,
2022
