Sparrow, Victor H. v. United Airlines Inc

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2000 Decided June 27, 2000

No. 99-7165

Victor H. Sparrow, III,

Appellant

v.

United Air Lines, Inc., et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 98cv02194)

Victor H. Sparrow, III, appearing pro se, argued the cause

and filed the briefs for appellant.

Jeffrey S. Piell argued the cause for appellees. With him

on the brief were Gary A. Orseck and Andrew A. Nicely.

Before: Edwards, Chief Judge, Randolph and Garland,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Plaintiff Victor H. Sparrow, III

worked for United Air Lines for three years before being

terminated in 1997. On September 15, 1998, he sued his

former employer on a number of grounds, including alleged

racial discrimination in employment. In lieu of an answer,

United filed a motion under Federal Rule of Civil Procedure

12(b)(6), asking the district court to dismiss plaintiff's action

for "failure to state a claim upon which relief can be granted."

The court granted the motion, holding that plaintiff's com-

plaint had failed to "make out a prima facie case of discrimi-

nation." Sparrow v. United Airlines, Inc., No. 98-2194, slip

op. at 17 (D.D.C. July 22, 1999). Because a plaintiff need not

set forth the elements of a prima facie case at the initial

pleading stage, we reverse and remand for further proceed-

ings.

I

Sparrow's amended complaint included a plethora of

charges against United, ranging from breach of contract to

violation of various state laws. The district court dismissed

the complaint in its entirety, and, in an earlier opinion, this

court affirmed as to all claims other than those alleging

"discriminatory discharge and failure to promote under 42

U.S.C. s 1981." Sparrow v. United Air Lines, Inc., No.

99-7165 (D.C. Cir. Dec. 21, 1999).1 We review de novo the

district court's dismissal of the remaining claims under Rule

12(b)(6). See, e.g., Croixland Properties Ltd. v. Corcoran, 174

F.3d 213, 215 (D.C. Cir. 1999). In so doing, we must treat the

complaint's factual allegations as true, see Leatherman v.

Tarrant County Narcotics Intelligence and Coordination

Unit, 507 U.S. 163, 164 (1993), and must grant plaintiff "the

benefit of all inferences that can be derived from the facts

alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C.

Cir. 1979). See Croixland Properties, 174 F.3d at 215.2

__________

1 Section 1981 prohibits racial discrimination in "the making,

performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the

contractual relationship." 42 U.S.C. s 1981(b); see Carney v.

American Univ., 151 F.3d 1090, 1092-93 (D.C. Cir. 1998).

2 We also note that Sparrow brought this action pro se, and that

the Supreme Court has instructed the lower courts to hold "allega-

A

The district court dismissed Sparrow's employment dis-

crimination claims on the ground that "[p]laintiff cannot make

out a prima facie case of discrimination." Sparrow, slip op. at

17. "Specifically," the court said, "plaintiff has not pointed to

any similarly situated employees who were given preferential

treatment over him." Id. Moreover, "even assuming that

plaintiff could meet the elements of a prima facie case, he has

offered no evidence to demonstrate that [United's] reasons

for firing him were pretextual." Id.

It is true that under the familiar McDonnell Douglas

framework for proving unlawful discrimination:

First, the plaintiff has the burden of proving by the

preponderance of the evidence a prima facie case of

discrimination. Second, if the plaintiff succeeds in prov-

ing the prima facie case, the burden shifts to the defen-

dant "to articulate some legitimate, nondiscriminatory

reason for the employee's rejection." Third, should the

defendant carry this burden, the plaintiff must then have

an opportunity to prove by a preponderance of the

evidence that the legitimate reasons offered by the de-

fendant were not its true reasons, but were a pretext for

discrimination.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,

252-53 (1981) (quoting McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973)) (citations omitted); see Reeves v.

Sanderson Plumbing Prods., 68 U.S.L.W. 4480, 4482 (U.S.

June 12, 2000). It is also true that "[t]o establish a prima

facie case under the McDonnell Douglas framework, [a plain-

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tions of [a] pro se complaint ... to less stringent standards than

formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S.

519, 520 (1972). However, because we decide this appeal in Spar-

row's favor under the standards applicable to represented plaintiffs,

we need not decide whether Sparrow--who graduated from Har-

vard Law School but is not now licensed to practice law--would be

entitled to the benefit of the less stringent pro se standards

enunciated by the Court.

tiff] must demonstrate (1) that she is a member of a protected

class; (2) that she was similarly situated to an employee who

was not a member of the protected class; and (3) that she

and the similarly situated person were treated disparately."

Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999).3

None of this, however, has to be accomplished in the

complaint itself. Under Federal Rule of Civil Procedure

8(a)(2), a claim need only contain "a short and plain statement

of the claim showing that the pleader is entitled to relief."

Rule 8(e)(1) states that "[e]ach averment of a pleading shall

be simple, concise, and direct. No technical forms of pleading

or motions are required." And Rule 8(f) instructs that "[a]ll

pleadings shall be so construed as to do substantial justice."

In Conley v. Gibson, the Supreme Court interpreted these

rules to mean that "a complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." 355 U.S. 41, 45-46 (1957).

The Court went on to hold that

the Federal Rules of Civil Procedure do not require a

claimant to set out in detail the facts upon which he

bases his claim. To the contrary, all the Rules require is

"a short and plain statement of the claim" that will give

the defendant fair notice of what the plaintiff's claim is

and the grounds upon which it rests.... Such simplified

"notice pleading" is made possible by the liberal opportu-

nity for discovery and the other pretrial procedures

established by the Rules to disclose more precisely the

basis of both claim and defense and to define more

narrowly the disputed facts and issues.

Id. at 47-48 (citations omitted).

The grounds for the district court's dismissal of Sparrow's

complaint are inconsistent with Rule 8 and Conley. Sparrow

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3 Although the McDonnell Douglas framework was established

for proving racial discrimination under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. ss 2000e et seq., the same framework is used

for evaluating claims under 42 U.S.C. s 1981. See Carney, 151

F.3d at 1092-93.

did not have to "make out a prima facie case of discrimina-

tion" in his complaint, specifically point to "similarly situated

employees who were given preferential treatment over him,"

or offer "evidence to demonstrate that [United's] reasons for

firing him were pretextual." Sparrow, slip op. at 17.4 To the

contrary, "[c]omplaints 'need not plead law or match facts to

every element of a legal theory.' " Krieger v. Fadely, 211

F.3d 134, 136 (D.C. Cir. 2000) (quoting Bennett v. Schmidt,

153 F.3d 516, 518 (7th Cir. 1998)); see Caribbean Broad. Sys.,

Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir.

1998) ("[A] plaintiff need not allege all the facts necessary to

prove its claim."); Atchinson v. District of Columbia, 73 F.3d

418, 421-22 (D.C. Cir. 1996) ("A complaint ... need not allege

all that a plaintiff must eventually prove ...."); Sinclair v.

Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983) ("The Federal

Rules of Civil Procedure do not require a claimant to set out

the precise facts on which the claim is based.... 'Notice

pleading' is sufficient.").

Nor are discrimination or other civil rights complaints

different in this regard. Conley itself involved a class action

by African-American railroad clerks who alleged that their

union had breached its duty of fair representation by discrim-

inating against them in violation of their rights under the

Railway Labor Act, 45 U.S.C. ss 151 et seq. In reversing the

dismissal of the complaint under Rule 12(b)(6), the Court

rejected defendant's argument that dismissal was proper

because "the complaint failed to set forth specific facts to

support its general allegations of discrimination." Conley,

355 U.S. at 47. Thiry-five years later, in Leatherman v.

Tarrant County, the Supreme Court reaffirmed the continu-

ing vitality of Conley, rejecting the suggestion that a

" 'heightened pleading standard'--more stringent than the

usual pleading requirements of Rule 8(a)" should apply in civil

__________

4 See Powell v. Ridge, 189 F.3d 387, 394 (3d Cir. 1999); Ortez v.

Washington County, 88 F.3d 804, 808 (9th Cir. 1996); Ring v. First

Interstate Mortgage, Inc., 984 F.2d 924, 926-27 (8th Cir. 1993).

rights cases brought under 42 U.S.C. s 1983. 507 U.S. at

164; see id. at 167-68 (citing Conley, 355 U.S. at 47).

This court has followed the Supreme Court's lead. In

Atchinson, for example, we reversed the dismissal of a com-

plaint alleging that a municipality had violated a plaintiff's

civil rights by failing to train or supervise its police officers.

See 73 F.3d at 419. Citing Conley and Leatherman, we

rejected the district court's conclusion that plaintiff's com-

plaint was deficient because it "failed to identify a specific

custom, policy statement, or procedure that caused his inju-

ries," and otherwise "failed to state facts supporting" its

allegations. Id. at 422. It was enough, we said, that plaintiff

"alleg[ed] that [the police officer] shot him in broad daylight

on a city street so quickly after [plaintiff] was ordered to

'freeze.' " Id.

In sum, we agree with the conclusion reached by Judge

Easterbrook in Bennett: "Because racial discrimination in

employment is 'a claim upon which relief can be granted,'....

'I was turned down for a job because of my race' is all a

complaint has to say" to survive a motion to dismiss under

Rule 12(b)(6). Bennett, 153 F.3d at 518; see Krieger, 211

F.3d at 136 (citing Bennett with approval).

B

Plaintiff's complaint readily meets the standard of Conley

and its progeny. Count Five5 expressly states that it "is

founded upon 42 United States Code s 1981 for a disparate

and discriminatory application by the Defendants of the per-

sonnel, compensation, and termination policies of Defendant

United because of his race." Compl. p 76. It goes on to

charge that the "discriminatory, offensive, and invidious treat-

ment which the Plaintiff has experienced" was "motivated and

predicated in principal part by a pervasive distaste for the

racial ethnicity of the Plaintiff." Id. p 77. And, in words that

presage the district court's own decision concerning the re-

quirements of a prima facie case, it alleges that "a similarly

situated male Caucasian United States citizen employee of

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5 There are two counts labeled "Five" in the amended complaint.

We refer here to the second of the two.

defendant United would not have experienced such disparate

treatment culminating in termination." Id.

Indeed, the complaint goes into considerably more detail,

fleshing out specific claims of both discriminatory failure to

promote and discriminatory termination.

With respect to promotion, the complaint alleges that there

were

continuing violations of public policy in an atmosphere of

pervasive racial discrimination beginning with: (a) the

failure of the United Air Lines Sales Department in

September 1995 to hire the Plaintiff as an Account

Representative at the Washington Reservations Center

(IADRR); continuing with the refusal to allow the Plain-

tiff to interview for the vacant position of Manager,

Vendor Contracts & Services at the Maintenance Opera-

tions Center (SFOPP) and the hiring of a Caucasian who

had been unsuccessful in her application to become a

peer of the Plaintiff as a Senior Contracts Specialist in

May, 1998.

Id. at 3. The complaint further alleges that as part of the

promotion process, in September 1995 United conducted

" 'subjective' performance tests" that it refused to show "were

either 'validated,' 'job related,' or 'required by business neces-

sity' as mandated by the various State and Federal Civil

rights laws," id. p 20-21, and that "all of the 'successful'

candidates from the IADRR September Testing session were

Caucasian," id. p 20.6 See id. pp 33, 36, 38, 43.

With respect to the termination claim, Sparrow alleges that

"[t]he conduct of the named Defendants and their co-

conspirators culminated in the wrongful termination of the

Plaintiff, Victor H. Sparrow, III, an African-American male

citizen ... in violation of the anti-discrimination laws ... of

the United States." Id. at 5. That termination occurred, he

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6 Although these paragraphs of the complaint are formally alleged

as part of Count One, which charges only breach of contract, they

(and all of paragraphs 1-70) are expressly incorporated into Count

Five by reference. See Compl. p 75.

alleges, notwithstanding that "[d]uring the period of his em-

ployment by Defendant United ... the Plaintiff performed in

a skillful and workmanlike manner," receiving "three (3)

outstanding 'Employee Performance Reviews' and two (2)

competitive promotions." Id. at 6; see id. pp 14(b), 15. The

complaint goes on to state: "The Plaintiff contends that he

would not have been terminated had he been a similarly

situated Caucasian male," id. at 6, and further complains that

in firing him, "Defendants failed to follow the termination

procedure set out" in United's management handbook, id.

p 49. This detail was more than was necessary to constitute

the "short and plain statement" required by Rule 8(a).

In some cases, it is possible for a plaintiff to plead too

much: that is, to plead himself out of court by alleging facts

that render success on the merits impossible. See Bennett,

153 F.3d at 519. In this case, Sparrow came close to crossing

that line by stating in his complaint that: (a) he was convicted

of multiple felonies in 1982, see Compl. p 1; (b) he answered

"no" when asked on his United employment application

whether he had ever been convicted of a felony, id. p 9; and

(c) United advised him that he was being terminated because

of his dishonesty in failing to reveal the 1982 convictions, see

id. p 48. As noted above, under the McDonnell Douglas

framework, even if a plaintiff succeeds in establishing a prima

facie case, an employer can overcome the resulting burden by

" 'articulat[ing] some legitimate, nondiscriminatory reason for

the employee's rejection.' " Burdine, 450 U.S. at 252-53

(quoting McDonnell Douglas, 411 U.S. at 802). Intentional

dishonesty on an employment application surely constitutes

such a reason.

But that is not the end of the matter. First, this nondis-

criminatory reason would apply at most to Sparrow's termi-

nation claim; the complaint does not suggest that United

knew of Sparrow's false statement at the time his requests

for promotion were rejected. See McKennon v. Nashville

Banner Publ'g Co., 513 U.S. 352, 360-63 (1995) (holding that

after-acquired evidence can serve only to limit remedy, not to

preclude liability altogether).7

Second, even where "the defendant carr[ies] [its] burden"

of articulating a nondiscriminatory reason for its actions, "the

plaintiff must then have an opportunity to prove by a prepon-

derance of the evidence that the legitimate reasons offered by

the defendant were not its true reasons, but were a pretext

for discrimination." Burdine, 450 U.S. at 253; see Reeves, 68

U.S.L.W. at 4482. Although the district court correctly noted

that plaintiff had "offered no evidence to demonstrate that

[United's] reasons for firing him were pretextual," Sparrow,

slip op. at 17, Sparrow had not yet had the opportunity to do

so. The district court had stayed all discovery pending its

decision on the motion to dismiss. See Sparrow v. United

Air Lines, Inc., No. 98-02194 (D.D.C. Dec. 22, 1998) (order

staying discovery); cf. Bennett, 153 F.3d at 519 ("Litigants

are entitled to discovery before being put to their proof.").

Moreover, plaintiff's complaint did repeatedly allege that his

1982 convictions were "employed as a pretext for termi-

nation," and that "a similarly situated Caucasian employee"

would not have been terminated on the same grounds.

Compl. at 3; see id. at 1, 6. As with any other factual

allegation in a complaint, we must treat this one as true for

purposes of evaluating dismissal under Rule 12(b)(6). See

Leatherman, 507 U.S. at 164. A "complaint should not be

dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief." Conley, 355 U.S.

at 45-46. Although it may be doubtful whether Sparrow

ultimately will be able to establish that his conceded dishones-

ty was a mere pretext, we cannot say it is "beyond doubt"

that he can prove no set of facts that would do so.

II

Before concluding, we briefly consider two additional issues

raised by the parties.

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7 United's brief concedes that the company did not know of

plaintiff's dishonesty until September 1997, long after the allegedly

discriminatory failures to promote occurred. See United Br. at 7-8.

First, United urges us to reject Sparrow's failure-to-

promote claim on the ground that he waived it below. The

district court did not dismiss on the ground of waiver, and we

do not believe there was one. As we held in Part I, Spar-

row's complaint sets forth a claim of discriminatory failure to

promote in sufficient detail to survive a motion to dismiss.

United contends that Sparrow waived that claim by not

arguing it in his opposition to United's Rule 12(b)(6) motion.

It was United, however, that failed to argue the point. The

company acknowledges that in its motion to dismiss it "did

not separately address whether the amended complaint states

a claim for race discrimination in promotions." United Br. at

5.8 In fact, United did not mention the promotion issue at all,

addressing only the allegation of discriminatory discharge.

See United Mem. in Supp. of Mot. to Dismiss at 8. Sparrow,

on the other hand, noted United's omission and complained

that "Defendants ignore the events alleged to have occurred"

in connection with the specific failures to promote. Sparrow

Mem. in Opp'n to Mot. to Dismiss at 11.9 Sparrow then went

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8 United contends that it did not address the failure-to-promote

issue because Count Five of the complaint (entitled "Violation of the

Federal Civil Rights Act") did "not allege that the lost promotions

were caused by race discrimination." United Br. at 5. But as we

have noted above, that count did allege violations of 42 U.S.C.

s 1981 for "disparate and discriminatory application by the defen-

dants of the personnel, compensation, and termination policies of

Defendant United because of his race." Compl. p 76 (emphasis

added). And while United is correct that the allegations that

plaintiff did not receive three promotions for which he applied were

made elsewhere in the complaint, see id. pp 18-20, 33, 35-36, 38, 40-

41, 43, those paragraphs were "incorporated by reference" in Count

Five "as if fully set out" therein, id. p 75. See supra note 6; see

also Compl. at 3 (describing failures to promote as occurring "in an

atmosphere of pervasive racial discrimination").

9 See Sparrow Mem. in Opp'n at 11 (noting, with citations to

paragraphs of the complaint, United's failure to address the "events

alleged to have occurred at the Washington Reservations Center or

those involving the United Department of Governmental Affairs in

Washington, or the denial of an interview opportunity for the

Manager of Vendor Contracts").

on to discuss United's argument relating to the allegation of

discriminatory discharge. See id. at 12-13. Nothing more

was required to preserve the failure-to-promote claim.

Second, Sparrow seeks review of the district court's grant

of United's motion for sanctions against him under Federal

Rule of Civil Procedure 11. The district court has not yet

fixed the amount of sanctions to be imposed. As a conse-

quence, United contends that the sanctions order is not

"final" and thus is not reviewable under 28 U.S.C. s 1291,

which grants courts of appeals jurisdiction over appeals from

final decisions of the district courts. See Gilda Marx, Inc. v.

Wildwood Exercise, Inc., 85 F.3d 675, 677 (D.C. Cir. 1996).

Although we may nonetheless have discretion to exercise

pendant jurisdiction to review the non-final Rule 11 order

along with the final dismissal under Rule 12(b)(6), see id. at

678, we will not exercise that discretion in this case. "[W]e

entertain pendant appeals only when substantial consider-

ations of fairness or efficiency demand it," id. at 679, and

those considerations are absent here. There is no reason to

believe that the interest in judicial economy would be served

by deciding the sanctions issue now, nor do we have before us

a record sufficient to permit a fair determination of its merits.

Moreover, since no sanctions have yet been imposed, the

plaintiff will not be injured by awaiting final resolution of the

issue in the district court.

III

We understand why district courts may want to alleviate

their crowded dockets by disposing quickly of cases that they

believe cannot survive in the long run. But as the Supreme

Court held in Leatherman, this may not be accomplished by

employing heightened pleading standards except in those

cases specifically listed in Federal Rule 9(b).10 Rather, "fed-

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10 See Leatherman, 507 U.S. at 168 (noting that Rule 9(b) imposes

a particularity requirement in only two specific instances: fraud and

mistake); Fed. R. Civ. P. 9(b) ("In all averments of fraud or

mistake, the circumstances constituting fraud or mistake shall be

stated with particularity.").

eral courts and litigants must rely on summary judgment and

control of discovery to weed out unmeritorious claims sooner

rather than later." Leatherman, 507 U.S. at 168-69; see

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("[I]t may appear

on the face of the pleadings that a recovery is very remote

and unlikely but that is not the test."); Krieger, 211 F.3d at

136.

Under Rule 8, all that is required is that "the complaint

give[ ] the defendants fair notice of each claim and its basis."

Atchinson, 73 F.3d at 422; see Krieger, 211 F.3d at 136. We

have no doubt that Sparrow's complaint did so. See United

Br. at 3 (acknowledging that "Sparrow alleged in the amend-

ed complaint that he was passed over for three promotions,

and that he was ultimately discharged by United because he

is African-American"). Accordingly, we reverse the dismissal

of plaintiff's section 1981 claims and remand for further

proceedings consistent with this opinion.