CORSON v. MODULA INC

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

RHONDA CORSON, )

)

PLAINTIFF )

)

V. ) CIVIL NO. 2:20-CV-104-DBH

)

MODULA, INC., )

)

DEFENDANT )

DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS

In this employment discrimination case, the plaintiff Rhonda Corson

alleges that her employer, the defendant Modula Inc., fired her on the basis of

her sex and age, and retaliated against her for opposing what she believed to be

unlawful race and sex discrimination. At the motion to dismiss stage, Modula

does not seek a ruling on Corson’s retaliation claims, but it does challenge her

sex and age discrimination claims. I conclude that with respect to the sex and

age discrimination claims, Corson’s allegations, if proven, satisfy McDonnell

Douglas’s prima facie evidentiary standard, generating an inference that Modula

discriminated against her. As a result, I conclude that Corson’s allegations of

discrimination are plausible on their face and therefore meet the pleading

standard. I DENY Modula’s motion to dismiss those claims.

PROCEDURAL POSTURE

In her four-count lawsuit, Corson alleges that Modula violated the Maine

Human Rights Act (MHRA), the Maine Whistleblowers’ Protection Act, Title VII of

the federal Civil Rights Act of 1964, and the federal Age Discrimination in

Employment Act by discriminating against her on the basis of sex and age, and

by retaliating against her for opposing sex and race discrimination at Modula.

Complaint (ECF No. 1). Modula has filed a motion to dismiss the sex and age

discrimination claims under Federal Rule of Civil Procedure 12(b)(6). Mot. to

Dismiss (ECF No. 9).

FACTUAL ALLEGATIONS AND BACKGROUND

On a 12(b)(6) motion to dismiss, I take the Complaint’s factual allegations

as true, and I draw all reasonable inferences in Corson’s favor. Morales-Cruz v.

Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012). Because Modula does not seek

to dismiss Corson’s claims of retaliation for complaining about race and sex

discrimination, Mot. at 1, I focus only on the allegations related to her sex and

age discrimination claims. Corson’s retaliation claims may be stronger, but that

is not the issue on this motion to dismiss the other claims.

Corson is female and was 49 at the time Modula fired her. Compl. ¶¶ 12,

114. She became Modula’s Human Resources Manager in May 2017. Id. ¶¶ 13,

14. Her Complaint alleges that her job performance was “exemplary,” id. ¶ 15,

and it gives specific examples in support. Among other things, she created a

new training course, id. ¶ 18; improved the network of staffing agencies the

defendant used to fill vacancies, id. ¶ 19; built relationships with outside

organizations, id. ¶ 21; advised the company on switching 401(k) providers to

save money, id. ¶ 22; moved the company to a new health insurance broker that

resulted in lower premium increases, id. ¶¶ 23-26; switched the company’s

Employee Assistance Plan to one that employees used more often, id. ¶ 28; and

advised employees on their benefits, earning their appreciation and gratitude, id.

¶¶ 31-33.

Around October 2017, Corson began receiving reports about inappropriate

behavior on the part of Modula’s Project Manager for Special Projects. Id. ¶¶ 34,

39. The following spring (2018), she heard from the Factory Manager that the

Project Manager “made numerous lewd comments about women and treated

women in the workplace with disrespect,” among other inappropriate comments.

Id. ¶¶ 40-49. Corson repeatedly raised the Project Manager’s behavior with

Modula’s CEO, id. ¶¶ 55-57, who stated that he liked the Project Manager and

did not believe the Project Manager’s behavior was a problem, id. ¶¶ 63-65.

Nevertheless, Modula “issued a final warning” in July of 20181 that stated the

Project Manager “would be transitioned out of the company when a replacement

could be recruited.” Id. ¶¶ 66, 68. The Project Manager left the company about

six months later. Id. ¶ 75.

Corson alleges that male employees were treated better than she was. For

example, when an error by the male Purchasing Manager caused the company

to run out of sheet steel, management told employees not to blame the

Purchasing Manager. Id. ¶ 110. The male Finance Director received a larger

raise in 2018 than anyone else did, even though the CEO told Corson that he

knew the Finance Director “was taking advantage of him.” Id. ¶ 111. In

1 The Complaint says July 25, 2019, Compl. ¶ 66, but the year must be a typographical error

since he finally separated from employment on January 4, 2019, id. ¶ 75.

December 2018, Corson received her annual performance review. She was told

she needed to improve her “use of tools and/or technology . . . and be less

‘emotional’ in the job environment.” Id. ¶ 84. Corson says both charges were

unfounded. Id. ¶¶ 87, 117.

Modula’s CEO told Corson in January 2019 that he was considering firing

her because he did not like how hard she pushed on the Project Manager issue.

Id. ¶¶ 88-89. He fired Corson the next month, explaining that she was “not the

right person” for the job.2 Id. ¶¶ 95, 100. At age 49, she was replaced by a 33-

year-old man. Id. ¶ 114. Her replacement had about 9 years’ experience in

human resources; Corson had about 20 years’ experience in human resources

and related fields. Id. ¶ 115.

LEGAL STANDARD

To defeat a motion to dismiss, a plaintiff “must allege only ‘sufficient

factual matter to state a claim to relief that is plausible on its face.’” Garayalde-

Rijos v. Mun. of Carolina, 747 F.3d 15, 23 (1st Cir. 2014) (quoting Grajales v.

P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In determining the

complaint’s facial plausibility, I examine only its factual allegations, disregarding

any conclusory statements or legal allegations. Morales-Cruz v. Univ. of P.R.,

2 Modula gave additional explanations in a subsequent termination letter and in response to

Corson’s Maine Human Rights Commission complaint, all of which Corson challenges as

unfounded. See Compl. ¶¶ 116-123.

676 F.3d 220, 224 (1st Cir. 2012). I “assum[e] the truth of all well-pleaded facts”

and draw “all reasonable inferences in the plaintiff’s favor.” Id.

ANALYSIS

The Test for an Employment Discrimination Complaint

A series of Supreme Court decisions has left the circuit courts and, in this

circuit, the district courts divided on what a plaintiff must assert in an

employment discrimination complaint to avoid a plausibility dismissal.

In McDonnell Douglas, the Supreme Court identified the evidence a

plaintiff must produce at summary judgment to generate an inference of

discriminatory treatment requiring an employer to produce an alternative

legitimate explanation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). That is called the “prima facie case.” In Swierkiewicz, the Court

announced that McDonnell Douglas’s prima facie case was an evidentiary

standard, not a pleading standard, and that a plaintiff did not have to plead all

the elements of a prima facie case to avoid dismissal. Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 510 (2002). But the Court decided Swierkiewicz when Conley

v. Gibson, 355 U.S. 41, 47 (1957), was still the guiding standard for notice

pleading (holding that a complaint need only “give the defendant fair notice of

what the plaintiff’s claim is and the grounds upon which it rests”). Later, in

Twombly and Iqbal, the Supreme Court backed away from the Conley standard

and announced that a plaintiff must allege facts that make her claim “plausible.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Twombly seemed to

endorse Swierkiewicz, see id. at 569-70, but Twombly was an antitrust case and

initially some courts and commentators thought it might be limited to that

context. E.g., Janice R. Ballard, Bell Atlantic v. Twombly: Has the Court Re-Set

the Bar With a Heightened Pleading Standard?, 32 Am. J. Trial Advoc. 183, 198-

200 (2008). The later Iqbal decision made clear that plausibility applied to all

cases, and Iqbal did not mention Swierkiewicz. Ashcroft v. Iqbal, 556 U.S. 662,

677-78 (2009).

After those Supreme Court cases, the Second Circuit held that an

employment discrimination plaintiff need not plead a prima facie case in her

complaint but that, if she does, it is necessarily plausible, and therefore survives

a motion to dismiss. Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir.

2015) (“The plaintiff cannot reasonably be required to allege more facts in the

complaint than the plaintiff would need to defeat a motion for summary

judgment made prior to the defendant’s furnishing of a non-discriminatory

justification.”). The Ninth Circuit recently explicitly disagreed. Austin v. Univ.

of Or., 925 F.3d 1133, 1137 (9th Cir. 2019) (“We read the Second Circuit’s

application of the McDonnell Douglas presumption at the pleading stage as

contrary to Supreme Court precedent, and we decline to embrace that

approach.”).

The First Circuit is harder to categorize. It has held that, even after Iqbal,

the plaintiff is not required to satisfy the prima facie burden at the motion to

dismiss stage. Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir.

2013); Garayalde-Rijos, 747 F.3d at 24. In that respect, it concluded that

Swierkiewicz is still valid:

[T]he Swierkiewicz holding remains good law. It is not

necessary to plead facts sufficient to establish a prima facie

case at the pleading stage. See Swierkiewicz, 534 U.S. at

512, 122 S. Ct. 992. This conclusion is bolstered by the fact

that the Twombly Court, which first authoritatively

articulated the plausibility standard, cited Swierkiewicz with

approval. See Twombly, 550 U.S. at 569-70, 127 S .Ct. 1955

(discussing how the new pleading standard does not “run[ ]

counter to” Swierkiewicz).

Iqbal does not mention, but is wholly consistent with,

Swierkiewicz; there, the Court stressed that,

notwithstanding the neoteric plausibility standard, no

“detailed factual allegations” are required in a complaint.

Iqbal, 556 U.S. at 677-78, 129 S. Ct. 1937 (internal quotation

marks omitted). The prima facie standard is an evidentiary

standard, not a pleading standard, and there is no need to

set forth a detailed evidentiary proffer in a complaint.

Rodriguez-Reyes, 711 F.3d at 54. The First Circuit described the plausibility

standard as “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,” and said that “the elements of a prima facie case may be used

as a prism to shed light upon the plausibility of the claim.” Id. (emphasis added).

Although Rodriguez-Reyes was a case where the First Circuit said a

complaint need not plead all the elements of a prima case, a magistrate judge in

Rhode Island soon read it to mean that pleading a prima facie case is not even

sufficient. Reilly v. Cox Enters., Inc., No. CA 13-785S, 2014 WL 4473772, at *9

(D.R.I. Apr. 16, 2014) (“[W]hile the prima facie elements are not irrelevant to the

plausibility determination in discrimination suits, they are only part of the

background against which a plausibility determination should be made.”). A

district judge in New Hampshire disagreed. Gascard v. Franklin Pierce Univ.,

No. 14-CV-220-JL, 2015 WL 1097485, at *4 (D.N.H. Mar. 11, 2015) (“Since they

make out a prima facie case, these facts are more than sufficient to state a

plausible claim of disability discrimination.”).

Around the same time, a decision in this district followed the Rhode Island

decision focusing exclusively on plausibility. Lustgarten v. Lowe’s Home Ctrs.,

LLC, No. 2:15-CV-289-NT, 2015 WL 7312442, at *2 & n.4 (D. Me. Nov. 19, 2015)

(“[P]leading a prima facie case is not the same as pleading a plausible claim.”

(quoting Reilly, 2014 WL 4473772, at *8)). Modula urges me to apply that

Lustgarten statement and dismiss Corson’s case even if I conclude that Corson

adequately pleads facts to establish a prima facie case. I agree that a plaintiff

need not plead a prima facie case to meet the plausibility standard. But I decline

to rule that pleading facts sufficient to establish a prima facie case is insufficient

to meet the plausibility standard.3 Without deciding the issue, Lustgarten

expressed doubt over whether the plaintiff there had met the prima facie

standard for age discrimination. Id. & n.4. In truth, the plaintiff had omitted

“any facts about the age of his replacement,” a “telling [omission], as the

‘plausibility of an age discrimination claim depends in no small part on

allegations about the age of a replacement.’” Lustgarten, 2015 WL 7312442, at

*3 (quoting Minahan v. Town of E. Longmeadow, No. 3:12-cv-30203-MAP, 2014

WL 7883586, at *7 (D. Mass. Sept. 11, 2014)). In that respect, Lustgarten

implicitly followed O’Connor v. Consolidated Coin Caterers Corp., in which the

Supreme Court explained the prima facie requirement:

3 The parties’ briefings in Lustgarten did not draw the court’s attention to Gascard, Reilly, or

Littlejohn. See Lustgarten, No. 2:15-CV-289-NT, ECF Nos. 15 (motion to dismiss) & 17

(response).

[T]he prima facie case requires evidence adequate to create

an inference that an employment decision was based on an

illegal discriminatory criterion. In the age-discrimination

context, such an inference cannot be drawn from the

replacement of one worker with another worker

insignificantly younger. Because the ADEA prohibits

discrimination on the basis of age and not class membership,

the fact that a replacement is substantially younger than the

plaintiff is a far more reliable indicator of age discrimination

than is the fact that the plaintiff was replaced by someone

outside the protected class.

517 U.S. 308, 312-13 (1996). In other words, whether you call it a plausibility

defect (Lustgarten) or a prima facie defect (O’Connor), the age of the plaintiff’s

replacement matters. Here, as I detail below, Corson’s Complaint states clearly

that Modula filled her position with a much younger male who did not measure

up to her qualifications, avoiding the problem found in the pleadings of

Lustgarten and satisfying the O’Connor requirement.

Application of the Test to the Facts Alleged in This Case

In this case, Modula argues that Corson does not meet even the prima

facie standards, and I turn first to that issue.

Prima Facie Standard for Sex Discrimination Claim

A plaintiff satisfies her prima facie burden in a sex discrimination claim

by establishing four elements: “(1) she was within a protected class, (2) [she]

possessed the necessary qualifications and adequately performed her job, (3) but

was nevertheless dismissed, and (4) her employer sought someone of roughly

equivalent qualifications to perform substantially the same work.” Gomez-

Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 662 (1st Cir. 2010) (quoting

Rodriguez–Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 58 (1st Cir.

2005)).4 The same four elements establish a prima facie case for both the Title

VII and MHRA discrimination claims. Gavrilovic v. Worldwide Language Res.,

Inc., 441 F. Supp. 2d 163, 177 (D. Me. 2006) (“Maine courts look to Title VII case

law in construing the MHRA.”).

Corson’s factual allegations, taken as true, meet all of those elements.

(1) She is female. Compl. ¶ 12; see 42 U.S.C. § 2000e-2(a)(1) (including sex as a

protected class). (2) She has 20 years’ experience in relevant fields. Compl.

¶ 115. Her job performance was “exemplary,” id. ¶ 15, as demonstrated by her

improvement of various programs and services, id. ¶¶ 18-28, and employees’

positive responses to her efforts, id. ¶¶ 32-33. (3) She was fired. Id. ¶ 95.

(4) Modula hired a man with less experience to do the same job. Id. ¶¶ 114-15.

These allegations establish a prima facie case, justifying an inference of sex

discrimination in how Modula treated Corson.

Prima Facie Standard for Age Claim

For Corson’s age discrimination claims, the prima facie standard is much

the same, and it applies to both the Maine Human Rights Act claim and the Age

Discrimination in Employment Act claim. Boyajian v. Starbucks Corp., 587 F.

Supp. 2d 295, 303 n.3 (D. Me. 2008) (“Maine courts apply the MHRA in

accordance with federal anti-discrimination law, including the ADEA.”). “The

plaintiff must establish that (1) she was at least forty years old; (2) she was

qualified for the position she had held; (3) she was fired; and (4) the employer

4 Modula cites the fourth element differently, as requiring “that [the plaintiff] was treated

differently from similarly situated men.’” Mot. at 8 (quoting Charette v. St. John Valley Soil &

Water Cons. Dist., 332 F. Supp. 3d 316, 349 (D. Me. 2018)). Firing a female plaintiff only to

replace her with a less qualified male certainly meets that requirement.

subsequently filled the position, demonstrating a continuing need for the

plaintiff’s services.” Gomez-Gonzalez, 626 F.3d at 662; see also Robinson v.

Town of Marshfield, 950 F.3d 21, 25 (1st Cir. 2020) (describing the elements as

“(1) he was at least forty years old; (2) his work was sufficient to meet his

employer’s legitimate expectations; (3) his employer took adverse action against

him; and . . . (4) the employer refilled the position, thus demonstrating a

continuing need for the plaintiff’s services and skill”).

Taking Corson’s allegations as true, each element is satisfied. (1) Corson

was 49 when she was fired.5 Compl. ¶ 114. (2) She was qualified, as explained

in the sex discrimination section above. (3) She was fired. (4) Modula hired a

33-year-old with less experience to do the same job. Id. ¶¶ 112-15. Those

factual allegations justify an inference of age discrimination in her termination.

Plausibility

I turn therefore to the issue that has divided the circuits and the judges

within this circuit. Does stating facts in the complaint that are sufficient to

support a prima facie case suffice also to meet the requirement of a claim that is

plausible on its face? I start with Rodriguez-Reyes, the governing authority in

this circuit. In Rodriguez-Reyes, the issue was whether a plaintiff had to satisfy

the prima facie case standard at the pleading stage. In saying no, the First

Circuit said that the prima facie case standard is “a crucible hotter than the

plausibility standard demands.” 711 F.3d at 53 (emphasis added); see also

5 Modula argues that the McDonnell Douglas inference of discrimination is “undercut by the fact

that she was hired by Modula while in her late forties.” Mot. at 7. What Modula did earlier may

be a factor for the jury to consider in determining Modula’s motive for her later termination, but

it does not change whether Corson has met the prima facie standard.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that the “plausibility

standard” is relatively low, “not akin to a ‘probability requirement’”). I agree with

Gascard that, following Rodriguez-Reyes, if a complaint properly alleges facts to

support the “hotter” prima facie elements, it ipso facto satisfies the plausibility

standard. See Gascard v. Franklin Pierce Univ., No. 14-CV-220-JL, 2015 WL

1097485, at *4 (D.N.H. Mar. 11, 2015). If a plaintiff succeeds in establishing the

elements of the prima facie case at summary judgment, she “creates a

presumption that the employer unlawfully discriminated against [her].” St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). If she alleges those

elements factually in her complaint, how can it be that she does not satisfy the

plausibility standard?

A contrary rule would make little sense, i.e., that a plaintiff whose factual

allegations “create[d] a presumption” of unlawful discrimination, and could get

to a jury in the absence of a defendant’s legitimate explanation for the action it

took, nevertheless failed to state a “plausible” claim to avoid a motion to dismiss.6

According to the Supreme Court, “[t]o establish a ‘presumption’ is to say that a

finding of the predicate fact (here, the prima facie case) produces ‘a required

conclusion in the absence of explanation’ (here, the finding of unlawful

6 Modula also argues that Corson cannot establish but-for causation on her age discrimination

claim because at various points she claims her termination was also caused by sex

discrimination and retaliation. Reply at 3 (ECF No. 14). (Modula does not make that argument

as to sex discrimination, where mixed motive still suffices for some relief. 42 U.S.C. § 2000e-

2(m).). But a plaintiff is permitted to plead multiple alternative claims, even if her claims are

inconsistent. Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a

claim . . . alternatively.”); id. 8(d)(3) (“A party may state as many separate claims . . . as it has,

regardless of consistency.”).

discrimination).” St. Mary’s Honor Center, 509 U.S. at 506. What Rodriguez-

Reyes said was: “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.” 711 F.3d at 54.7 If the pleaded

facts meet the prima facie standard, that should suffice. See Charles A. Sullivan,

Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613,

1653-54 (2011) (doubtful “that a McDonnell Douglas prima facie case [is]

insufficient to satisfy the plausibility standard, because McDonnell Douglas is

so well-recognized by circuit court precedent to create a presumption of

discrimination”).

Modula seems to argue that pleading a prima facie case does not equate

to pleading causation. See Mot. at 6-7. I disagree. Nowhere does McDonnell

Douglas or any other Supreme Court case suggest that. How can there be

actionable discrimination if there was no causation of adverse employment

action? It is true that if a defendant produces evidence of a legitimate

nondiscriminatory reason for the adverse action it took, the plaintiff must prove

that discrimination caused the adverse action (as either a “but for” cause or a

motivating factor, depending on the cause of action), but we are not yet at this

stage because Modula, in moving to dismiss the complaint, has not yet produced

evidence of a proper motive.

7 Rodriguez-Reyes went on to say that in fact a plaintiff “need not [even] plead facts sufficient to

establish a prima facie case,” 711 F.3d at 54, surely a sign that pleading facts sufficient to

establish a prima facie case is more than enough.

CONCLUSION

The factual allegations in Corson’s complaint, assuming they are true,

make out a prima facie case supporting her sex and age discrimination claims.

I conclude that since they meet the prima facie case standard, they meet the

plausible claim standard and defeat a motion to dismiss. Therefore, the

defendant’s motion is DENIED.

SO ORDERED.

DATED THIS 21ST DAY OF JULY, 2020

/S/D. BROCK HORNBY

D. BROCK HORNBY

UNITED STATES DISTRICT JUDGE