Stephanie Carlson v. CSX Transportation, Incorpora

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 13-1944 & 13-2054

STEPHANIE SUE CARLSON,

Plaintiff-Appellant, Cross-Appellee,

v.

CSX TRANSPORTATION, INC.,

Defendant-Appellee, Cross-Appellant.

____________________

Appeals from the United States District Court for the

Southern District of Indiana, Evansville Division.

No. 3:11-cv-66-RLY-WGH — Richard L. Young, Chief Judge.

____________________

ARGUED MARCH 31, 2014 — DECIDED JULY 10, 2014

____________________

Before WOOD, Chief Judge, and WILLIAMS and HAMILTON,

Circuit Judges.

HAMILTON, Circuit Judge. This appeal requires us to revis-

it the pleading requirements for discrimination and retalia-

tion claims under Title VII of the Civil Rights Act of 1964,

including claims for retaliation where the employee alleges

an ongoing pattern of retaliation. We must also clarify the

scope and effect of the Railway Labor Act’s mandatory arbi-

2 Nos. 13-1944 & 13-2054

tration provision when an employee alleges discrimination

or retaliation in violation of federal statutes.

Plaintiff Stephanie Carlson brought several sex discrimi-

nation and retaliation claims under Title VII against her em-

ployer, defendant CSX Transportation, Inc., a railway com-

pany. She also brought a related contract claim based on the

settlement she had reached with CSX of an earlier discrimi-

nation lawsuit. CSX moved to dismiss, arguing that Carl-

son’s claims were implausible and that some were precluded

by the Railway Labor Act (RLA) because they were based on

company decisions justified by the terms of a collective bar-

gaining agreement.

For the most part, the district court agreed with CSX,

dismissing the majority of Carlson’s claims for failure to state

a claim upon which relief could be granted and finding that

the RLA precluded the remaining claims. Carlson has ap-

pealed. We conclude that none of her claims should have

been dismissed. The allegations in her complaint are easily

sufficient to state claims for sex discrimination and retalia-

tion. And the RLA, which requires that claims arising under

collective bargaining agreements in the railway and airline

industries be decided in arbitration, does not preclude Carl-

son’s claims, which arise under Title VII and a private con-

tract between Carlson and CSX.

Upon granting CSX’s motion to dismiss, the district court

also denied as moot a motion for summary judgment that

CSX had filed while its motion to dismiss was pending. CSX

has cross-appealed and asked us to grant summary judg-

ment in its favor if we conclude (as we do) that the district

court erred by dismissing Carlson’s claims on the pleadings.

We decline to rule on the summary judgment motion that

Nos. 13-1944 & 13-2054 3

the district court did not consider. We remand the case for

further proceedings.

I. Factual and Procedural Background

We present the relevant facts based on Carlson’s allega-

tions, which we must accept as true on appeal from the grant

of a Rule 12(b)(6) motion to dismiss. E.g., Tellabs, Inc. v. Ma-

kor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Luevano v.

Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). Carl-

son began her career with CSX in 2002 as a clerk. After seek-

ing unsuccessfully to advance in the company, she filed a

lawsuit in 2007 alleging sex discrimination. She was promot-

ed twice while that lawsuit was pending, first in 2008 to the

position of substitute yardmaster in Birmingham, Alabama,

and then in 2009 to the company’s manager trainee program.

In May 2009 while she was still in manager training, she and

CSX negotiated a settlement of her lawsuit. According to her

complaint, her superiors at CSX then made the training pro-

gram intolerable by belittling her, assigning her extra work,

and giving her unjustifiably poor evaluations, leaving her no

viable choice but to drop out.

Upon leaving the training program, Carlson asked to be

reinstated as a substitute yardmaster in Birmingham. Her

request was denied. She alleges that the initial explanation

she received was that no positions were available, a conten-

tion that Carlson knew was untrue. Later a company repre-

sentative told her that she was denied the position because

she had not completed 60 “starts” (shifts) as a substitute

yardmaster when she previously held the position. But CSX

had allowed a male employee Carlson knows to return to a

substitute yardmaster position despite his not having com-

pleted 60 starts.

4 Nos. 13-1944 & 13-2054

After learning that she could not resume work as a sub-

stitute yardmaster in Birmingham, Carlson took a lower-

paying position as a clerk in Evansville, Indiana. Two substi-

tute yardmaster positions were posted for Birmingham in

September 2009. Carlson applied for them but was rejected.

A company representative told her she was ineligible for the

positions because Birmingham was outside of her district,

though Carlson knows a male employee who was allowed to

transfer across districts. When substitute yardmaster posi-

tions later opened up in her district in Indiana, Carlson ap-

plied for those as well, but she was not even interviewed.

She alleges that the people ultimately hired for those posi-

tions were less qualified than she.

Carlson filed charges with the Equal Employment Op-

portunity Commission regarding these events. After com-

pleting the EEOC process, she filed this federal lawsuit alleg-

ing violations of Title VII, see 42 U.S.C. § 2000e-2 (discrimi-

nation) and § 2000e-3 (retaliation), and state contract law.

(She actually filed suit in both Alabama and Indiana district

courts, but the suits were consolidated in the Southern Dis-

trict of Indiana.) She alleges that her poor treatment in man-

ager training amounted to a constructive demotion motivat-

ed by hostility to her sex and in retaliation for her EEOC

complaints and the 2007 lawsuit. She also alleges that CSX

for the same reasons refused to reinstate her to the substitute

yardmaster position she had previously held and refused to

select her for any of the substitute yardmaster positions that

opened up later. Her contract claim is that CSX breached a

no-retaliation clause of the agreement to settle her 2007 law-

suit.

Nos. 13-1944 & 13-2054 5

In granting CSX’s motion to dismiss, the district court re-

jected most of Carlson’s claims under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim upon which

relief could be granted. Carlson v. CSX Transp., Inc., No. 3:11-

cv-66-RLY-WGH, 2013 WL 869762, at *6–8 (S.D. Ind. Mar. 5,

2013). The only exceptions were her claims based on the de-

cision not to reinstate her as a substitute yardmaster in Ala-

bama immediately after she left the manager training pro-

gram. The court concluded that the discrimination claim was

plausible because Carlson had identified a male comparator

and that the retaliation claim was plausible because she was

denied the position within one month of the resolution of

her 2007 lawsuit. Regarding Carlson’s sex discrimination

claims relating to the other substitute yardmaster positions,

the court explained that she did not state plausible claims for

relief because each claim lacked either an allegation that the

position was filled by someone else or an allegation that the

person who filled the position was male. Her retaliation

claims relating to those positions, the court said, were im-

plausible because of the amount of time that had passed

(several months) between any protected activity and the de-

nial decisions.

The court also explained that Carlson’s sex discrimination

and retaliation claims based on being forced out of the man-

ager training program were insufficient. No one at the pro-

gram had said anything about her sex or told her she would

be expelled from the program. Her allegations were “conclu-

sory,” the court wrote, and she had not provided “evidence

of intolerable working conditions.” Id. at *7. Moreover, Carl-

son had not cited any constructive demotion cases, i.e., cases

where an employee was forced out of a position yet re-

mained employed by the company. (The parties and the dis-

6 Nos. 13-1944 & 13-2054

trict court used the term “constructive discharge,” though a

more precise description of what Carlson alleges is construc-

tive demotion.)

In dismissing her contract claim, the court gave two re-

lated reasons. Her allegations about the settlement agree-

ment were vague (intentionally so because she did not want

to risk a claim that she had breached the confidentiality

terms), and she had not fixed that problem by providing the

court a copy of the agreement.

Returning to the two claims that had survived

Rule 12(b)(6)—sex discrimination and retaliation based on

CSX’s refusal to return her to the substitute yardmaster posi-

tion in Birmingham—the court dismissed them for lack of

subject matter jurisdiction. Id. at *8–9. The claims, the court

concluded, were precluded by the Railway Labor Act, which

requires that any claim of a railroad or airline employee that

is “grounded” in a collective bargaining agreement be de-

cided by an arbitrator. See Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246, 256 (1994). CSX had argued in its motion to

dismiss that it acted in compliance with a collective bargain-

ing agreement when it refused to return Carlson to a substi-

tute yardmaster position. The district court found that CSX’s

explanation was enough to preclude the claims.

II. Timeliness of the Appeal

CSX contends that Carlson’s notice of appeal was untime-

ly because she filed it more than 30 days after the district

court entered judgment against her. If CSX were correct, this

court would lack jurisdiction over her appeal. See Bowles v.

Russell, 551 U.S. 205, 209 (2007) (compliance with time limits

Nos. 13-1944 & 13-2054 7

on filing appeal is “mandatory and jurisdictional”). We find

that Carlson’s notice of appeal was timely.

Judgment was entered on March 19, 2013. Within just a

few days, Carlson’s lawyers told her they would no longer

represent her, but they did not move to withdraw their ap-

pearances. Then on March 26 Carlson filed a pro se “motion

to reconsider,” explaining that her lawyers had quit and ask-

ing the court to reconsider the dismissal of her claims. She

said in the motion that she had actually submitted a copy of

the settlement agreement, and she argued that the court had

mistakenly accepted certain misrepresentations by CSX.

On April 22, more than 30 days after the entry of judg-

ment, the district court entered an order “striking” Carlson’s

motion because she had signed it herself despite—

technically, at least—still being represented by counsel. See

Fed. R. Civ. P. 11(a). Two days later, Carlson’s lawyers finally

filed motions to withdraw, which the court granted. Then,

on May 1, nine days after the district court had stricken her

motion, new counsel for Carlson filed her notice of appeal.

In a private civil case like this one, a party normally has

30 days from the entry of judgment to file a notice of appeal.

See Fed. R. App. P. 4(a)(1)(A). For Carlson that would have

been April 18. But if a party files a timely motion listed in

Federal Rule of Appellate Procedure 4(a)(4)(A), which in-

cludes a motion under Federal Rule of Civil Procedure 59(e)

to alter or amend a judgment, the 30-day window to appeal

runs from the time the district court “disposes” of the mo-

tion.

Our jurisdiction therefore depends on the effect of Carl-

son’s pro se motion for reconsideration and the district court’s

8 Nos. 13-1944 & 13-2054

order striking it. A motion under Rule 59(e) need not be la-

beled as such or use the words “alter or amend” so long as it

“instead uses a synonym, such as ‘vacate’ or ‘reconsider.’”

Borrero v. City of Chicago, 456 F.3d 698, 699 (7th Cir. 2006).

Carlson filed a motion asking the district court to “reconsid-

er” its judgment one week after judgment was entered, well

within the 28 days Rule 59(e) allows.

To counter this argument that the notice of appeal was

timely, CSX argues that Carlson’s motion could not toll the

time for filing the notice of appeal because the district court

dealt with the motion by striking it rather than denying it.

Relying on dictionary definitions of the word “strike,” CSX

sees Carlson’s stricken motion as a “nullity” that should be

treated as never having been filed at all. We reject this argu-

ment.

The improper signature on Carlson’s motion was not an

error with jurisdictional consequences. The Supreme Court

held in Becker v. Montgomery, 532 U.S. 757, 765 (2001), that a

curable defect in a signature on a notice of appeal did not

render an appeal untimely. That logic easily extends to cura-

ble defects in signatures on post-judgment motions that af-

fect the time to file a notice of appeal. As the Court explained

in Becker, Rule 11(a), which the district court in this case re-

lied upon to strike Carlson’s motion, establishes that a defec-

tive signature on a filing may be cured. In fact, the rule al-

lows striking only after a missing signature is brought to the

attorney’s or party’s attention and is not promptly corrected.

The district court thus erred by not giving Carlson an oppor-

tunity to correct the defect in her motion. Moreover, under

Rule 4(a)(4)(A), the time to appeal runs from the entry of an

order “disposing” of a timely filed Rule 59(e) motion, and

Nos. 13-1944 & 13-2054 9

the district court’s order striking Carlson’s motion undenia-

bly disposed of it, whatever the meaning of the word

“strike.”

In addition to those reasons, the district court’s error in

striking the motion sua sponte was also problematic here be-

cause Carlson’s lawyers had told her they would take no fur-

ther action on her behalf but had not withdrawn their ap-

pearances. She thus had no choice but to file the motion her-

self. Although “hybrid representation” (i.e., a represented

party filing papers on her own) is generally to be avoided,

see United States v. Chavin, 316 F.3d 666, 671–72 (7th Cir.

2002), summarily striking sua sponte a pro se filing that alerts

the court to an attorney’s withdrawal is unwarranted. The

fact that Carlson’s lawyers were slow to withdraw formally

should not have been held against her.

CSX offers an additional argument that Carlson’s motion

for reconsideration could not toll the time to appeal. It ar-

gues that the motion was too insubstantial to qualify as a

motion under Rule 59(e). But only in extreme cases where a

motion was completely devoid of substance—meaning that it

did not identify a single reason, even a bad one, for the court

to reconsider its judgment—have we held that it did not toll

the time to appeal. See Talano v. Northwestern Medical Faculty

Foundation, Inc., 273 F.3d 757, 760–61 (7th Cir. 2001); Mar-

tinez v. Trainor, 556 F.2d 818, 819–20 (7th Cir. 1977). Carlson’s

motion asked the court to reconsider its judgment for sub-

stantive reasons (for example because the court had over-

looked that she had submitted a copy of her settlement

agreement), easily qualifying it as a Rule 59(e) motion. See

Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 598 (7th

Cir. 2012) (explaining that one basis for a Rule 59(e) motion

10 Nos. 13-1944 & 13-2054

is that “the court committed a manifest error of law or fact”).

To require more from a motion than an identifiable reason

for reconsidering (regardless of the reason’s merit) would

create troublesome uncertainty about when a notice of ap-

peal must be filed and would invite sterile litigation over

when unsuccessful motions to reconsider were too weak to

toll the time to appeal. We decline to go any further down

that road.

III. Sufficiency of Claims under Rule 12(b)(6)

To analyze the sufficiency of a complaint we must con-

strue it in the light most favorable to the plaintiff, accept

well-pleaded facts as true, and draw all inferences in the

plaintiff's favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081

(7th Cir. 2008). A claim must be plausible rather than merely

conceivable or speculative, see Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556

(2007), meaning that the plaintiff must include “enough de-

tails about the subject-matter of the case to present a story

that holds together,” Swanson v. Citibank, N.A., 614 F.3d 400,

404–05 (7th Cir. 2010). But the proper question to ask is still

“could these things have happened, not did they happen.” Id.

In rejecting all but two of Carlson’s claims for failing to

state a plausible claim for relief, the district court applied the

wrong standard. The court repeatedly faulted her for not

providing “evidence” in support of her claims, see Carlson,

2013 WL 869762, at *6–7, though of course evidence is not

required at the pleading stage. And the court relied on

summary judgment decisions that addressed not the content

of complaints but the evidence needed to take a claim to a

jury. E.g., Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d

681, 683 (7th Cir. 2000); Morrow v. Wal-Mart Stores, Inc.,

Nos. 13-1944 & 13-2054 11

152 F.3d 559, 561 (7th Cir. 1999); and Geier v. Medtronic, Inc.,

99 F.3d 238, 240 (7th Cir. 1996). The judicial pen may some-

times slip inadvertently in these ways, but in this case the

slips signaled accurately that the court had applied too de-

manding a standard. We assess Carlson’s claims under the

proper standard for Rule 12(b)(6) determinations.

A. Sex Discrimination Claims Relating to Substitute Yard-

master Positions

A complaint alleging sex discrimination under Title VII

“need only aver that the employer instituted a (specified)

adverse employment action against the plaintiff on the basis

of her sex.” Tamayo, 526 F.3d at 1084; see also EEOC v. Con-

centra Health Services, Inc., 496 F.3d 773, 781–82 (7th Cir. 2007)

(stressing the simplicity of pleading a Title VII discrimina-

tion claim). The plaintiff is not required to include allega-

tions—such as the existence of a similarly situated compara-

tor—that would establish a prima facie case of discrimina-

tion under the “indirect” method of proof. Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 511–12 (2002); see also Luevano v.

Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013) (ob-

serving that Swierkiewicz survived Twombly and Iqbal); Swan-

son, 614 F.3d at 404 (same). While fraud claims, for example,

must be pled with particularity, see Fed. R. Civ. P. 9(b), Ti-

tle VII claims are not subject to a heightened pleading stand-

ard. Swierkiewicz, 534 U.S. at 513–15. Employers are familiar

with discrimination claims and know how to investigate

them, so little information is required to put the employer on

notice of these claims. Concentra, 496 F.3d at 782.

In Carlson’s second amended complaint (the operative

one), she alleged which positions she sought and was de-

nied, and she attributed the denial to sex discrimination, sat-

12 Nos. 13-1944 & 13-2054

isfying the standard applied in Swanson, Tamayo, and Concen-

tra. She then provided additional allegations (which we

must accept as true at this stage) that were not needed but

bolstered the plausibility of her claims. These include that a

male employee was allowed to resume work as a substitute

yardmaster without having completed 60 starts and that an-

other man was allowed to transfer across districts, both

things Carlson was not allowed to do. Also casting doubt on

the honesty of CSX’s explanations for not promoting her are

Carlson’s allegations that the company gave her different

reasons at different times regarding the same job opening.

Inconsistent explanations by an employer can support a rea-

sonable inference of pretext that can defeat a motion for

summary judgment. E.g., Mullin v. Temco Machinery, Inc.,

732 F.3d 772, 778 (7th Cir. 2013) (reversing summary judg-

ment for employer); Hitchcock v. Angel Corps, Inc., 718 F.3d

733, 738 (7th Cir. 2013) (same).

B. Retaliation Claims Relating to Substitute Yardmaster

Positions

Pleading a retaliation claim under Title VII requires the

plaintiff to “allege that she engaged in statutorily protected

activity and was subjected to an adverse employment action

as a result.” Luevano, 722 F.3d at 1029. 1 The protected activity

1 Following University of Texas Southwestern Medical Center v. Nassar, 133

S. Ct. 2517, 2534 (2013), the protected activity of an employee making a

retaliation claim must have been “a but-for cause of the alleged adverse

action by the employer.” (As opposed to the “lessened causation stand-

ard” that applies in Title VII discrimination cases. Id. at 2526.) The re-

quirement of but-for causation in retaliation claims does not mean that

the protected activity must have been the only cause of the adverse ac-

tion. Rather, it means that the adverse action would not have happened

without the activity. See id. at 2525.

Nos. 13-1944 & 13-2054 13

must be specifically identified. Concentra, 496 F.3d at 781.

Carlson’s retaliation claims relating to the substitute yard-

master positions include the allegations supporting her dis-

crimination claims, supplemented by the allegation that her

employer’s actions were caused by protected activity, name-

ly, her EEOC complaints and her lawsuit that began in 2007

and was settled in 2009.

The district court found Carlson’s retaliation claim about

not being reinstated as a substitute yardmaster when she left

the training program to be plausible because CSX’s refusal to

reinstate her came less than a month after she and the com-

pany agreed to a settle her earlier lawsuit. But the court con-

cluded that the five months separating the resolution of the

lawsuit and the first of Carlson’s later substitute yardmaster

applications rendered her other retaliation claims implausi-

ble. Five months—“with no other evidence suggesting the

protected conduct provoked CSX’s retaliation”—was too

long for the events to be connected, the court reasoned, be-

cause four months was too long under Hughes v. Derwinski,

967 F.2d 1168 (7th Cir. 1992).

In Hughes, we affirmed the grant of summary judgment

on a retaliation claim for the employer because, “standing by

itself,” four months between the employee’s protected activi-

ty and his discipline could not support an inference that the

two events were related. Id. at 1174–75. The “inference of

causation weakens as the time between the protected expres-

sion and the adverse action increases, and then ‘additional

proof of a causal nexus is necessary.’” Oest v. Illinois Dep’t of

Corrections, 240 F.3d 605, 616 (7th Cir. 2001), quoting Da-

vidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511

(7th Cir. 1998). Even intervals shorter than four months are

14 Nos. 13-1944 & 13-2054

unlikely, standing alone, to establish the causation element

of a retaliation claim. See Cung Hnin v. TOA (USA), LLC, 751

F.3d 499, 508 (7th Cir. 2014) (“Under most circumstances,

suspicious timing alone does not create a triable issue on

causation … .”).

Although the district court once again seemed to require

evidence at the pleading stage and, in citing only Hughes, re-

lied exclusively on a summary judgment case, a retaliation

claim can indeed be so bare-bones that a lengthy time period

between the protected activity and the alleged retaliation

will make any causal connection between the two implausi-

ble. If the best a plaintiff can do is allege that he engaged in

protected activity and then, years later, the employer took an

adverse action against him, the claim may not be permitted

to proceed. See, e.g., Carmody v. Board of Trustees of Univ. of

Illinois, 747 F.3d 470, 480 (7th Cir. 2014) (unexplained three-

year gap between employee’s report against another em-

ployee and his termination made state-law retaliation claim

implausible where focus of case was much more immediate

dispute, including full due-process hearing, over whether

employee had breached security of employer’s computer

network).

But no bright-line timing rule can be used to decide

whether a retaliation claim is plausible or whether it should

go to a jury. Other factors can always be relevant. “A mecha-

nistically applied time frame would ill serve our obligation

to be faithful to the legislative purpose of Title VII. The facts

and circumstances of each case necessarily must be evaluat-

ed to determine whether an interval is too long to permit a

jury to determine rationally that an adverse employment ac-

Nos. 13-1944 & 13-2054 15

tion is linked to an employee’s earlier complaint.” Oest,

240 F.3d at 616.

In this case, Carlson has alleged that the resolution of her

2007 lawsuit in 2009 sparked animosity right away and that

all of her attempts to advance at CSX since then have been

thwarted. She has described an ongoing campaign of retalia-

tion, and her claims must be viewed through that lens. See,

e.g., Warren v. Prejean, 301 F.3d 893, 900 (8th Cir. 2002) (af-

firming jury verdict for plaintiff on retaliation claim because,

despite over four-year gap between grievance and termina-

tion, termination “was the end result of an ongoing pattern of

retaliatory behavior”); Woodson v. Scott Paper Co., 109 F.3d

913, 920–21 (3d Cir. 1997) (affirming jury verdict for plaintiff

on retaliation claim because “a plaintiff can establish a link

between his or her protected behavior and subsequent dis-

charge if the employer engaged in a pattern of antagonism in

the intervening period,” even if the intervening period

spanned years).

Carlson’s allegations convinced the district court that

CSX’s initial refusal to reinstate her as substitute yardmaster

may have been retaliatory, but the court then concluded that

the company’s refusal to hire her for the same position a few

months later could not possibly have been retaliatory be-

cause of the time that had passed. This parsing of events lost

sight of the bigger picture, which showed an ongoing pat-

tern of retaliation. Under these circumstances, we conclude

that all of Carlson’s retaliation claims are plausible and sur-

vive Rule 12(b)(6).

16 Nos. 13-1944 & 13-2054

C. Claims Relating to Training Program

Also plausible are Carlson’s sex discrimination and retal-

iation claims relating to the manager training program, from

which she withdrew just before seeking to resume work as a

substitute yardmaster. According to Carlson’s complaint, she

was treated so poorly in CSX’s manager training program

that she was effectively forced out. She alleges that the poor

treatment was motivated by her sex and by her 2007 lawsuit,

which the parties agreed to settle in 2009 while she was in

the training program. Her supervisors in the training pro-

gram were aware of the settlement negotiations because she

had to take time off to attend them, and the supervisors’ hos-

tility toward her increased substantially upon her return

from the successful negotiations.

The district court concluded that her allegations of regu-

lar belittlement, unfair criticism, and unduly poor assess-

ments were insufficient to support either claim. No one had

said anything overtly sexist or told Carlson’s that she would

soon be dismissed from the program. Her allegations were

“conclusory,” the court said, and she did not offer “evidence

of intolerable working conditions.” Nor did Carlson cite cas-

es involving employees who were forced out of a position

but not out of the company.

These were not sufficient reasons for dismissing Carlson’s

claims on the pleadings. Even if a claim might theoretically

be too “conclusory”—a theory hard to square with

Swierkiewicz and Swanson, at least where the situation is

identified and unlawful motivation alleged—Carlson in-

cluded specific examples of poor treatment. A work envi-

ronment, it is true, must be “intolerable” to support a con-

structive discharge claim. See Chapin v. Fort-Rohr Motors, Inc.,

Nos. 13-1944 & 13-2054 17

621 F.3d 673, 679 (7th Cir. 2010). The conditions Carlson de-

scribed in her complaint may not ultimately qualify as intol-

erable, but we cannot say so definitively at the pleading

stage, which (we stress again) is before any evidence is re-

quired. And although “constructive demotion” (what Carl-

son has actually asserted) is an unusual claim, it is nonethe-

less a viable legal theory. See Simpson v. Borg-Warner Automo-

tive, Inc., 196 F.3d 873, 876 (7th Cir. 1999) (“[A] constructive

demotion analysis should have the same structure as that for

constructive discharge.”).

Before moving on to the contract claim and the RLA is-

sues, we also note that all the discrimination and retaliation

claims in Carlson’s first amended complaint also satisfied

Rule 12(b)(6). The district court simply demanded too much

at the pleading stage here, resulting in further efforts at

pleading to reach a standard that is rarely realistic before

discovery. This case therefore illustrates well the important

distinction the Supreme Court drew in Swierkiewicz be-

tween pleading requirements and evidentiary requirements.

534 U.S. at 510–12 (holding that plaintiff need not plead ele-

ments of prima facie case under indirect proof method).

To illustrate this point, consider the need to identify simi-

larly situated employees as part of the prima facie case un-

der the indirect proof method. As we explained in Coleman v.

Donahoe, 667 F.3d 835, 847–50 (7th Cir. 2012), the identity of

the employer’s decision-maker and the employer’s stated

reason for its decision are critical in figuring out who else

might have been similarly situated. The employee often will

not be able to answer those questions without discovery. See

Cloe v. City of Indianapolis, 712 F.3d 1171, 1184–85 (7th Cir.

2013) (Hamilton, J., concurring). The plaintiff is not required

18 Nos. 13-1944 & 13-2054

to identify similarly situated comparators at the pleading

stage. And the very complexity of the dance between the in-

terdependent steps of the indirect proof method supports

Chief Judge Wood’s suggestion in her concurrence in Cole-

man that it is time to collapse the different methods of proof

into one test: whether a rational jury could find that the em-

ployer took action against the plaintiff for an unlawful rea-

son. 667 F.3d at 862–63.

D. Contract Claim

Carlson explained in her complaint that her contract

claim was intentionally vague because she was bound by a

confidentiality clause in the settlement agreement. She asked

the court to allow her to submit the settlement agreement for

in camera review. The district court dismissed the claim on

the basis that Carlson never provided a copy of the agree-

ment. But as Carlson first pointed out in her Rule 59(e) mo-

tion—and as the record confirms—she did submit the

agreement under seal to the district court. Thus the court’s

dismissal of this claim must be reversed as well. (During oral

argument, Carlson’s lawyer acknowledged that the contract

claim stands or falls with the retaliation claims. It is not clear

how much the claim adds to the case, but that can be ad-

dressed later.)

IV. Preclusion by the Railway Labor Act

Two claims survived the district court’s scrutiny under

Rule 12(b)(6): Carlson’s discrimination and retaliation claims

relating to CSX’s failure to reinstate her as substitute yard-

master just after she left the manager training program.

These claims, the court determined, were precluded by the

Railway Labor Act (RLA), which requires that certain claims

Nos. 13-1944 & 13-2054 19

be resolved through arbitration under the Act. The court

dismissed the claims for lack of subject matter jurisdiction.

A. Jurisdictional Requirement?

Before addressing whether any of Carlson’s claims were

in fact subject to mandatory arbitration, we briefly call atten-

tion to the issue whether a party’s failure to comply with the

RLA’s arbitration provision deprives federal courts of subject

matter jurisdiction rather than simply defeats the claim. The

distinction between the two grounds for dismissal is incon-

sequential in this case, where waiver is not an issue because

the defendant argued RLA preclusion at every stage, but it

could matter in others.

The district court, in treating the RLA’s arbitration re-

quirement as jurisdictional, naturally followed this court’s

practice of referring to the requirement in those terms. See,

e.g., Brotherhood of Maintenance of Way Employees Division/IBT

v. Norfolk Southern Ry. Co., 745 F.3d 808 (7th Cir. 2014); Brown

v. Illinois Central R.R. Co., 254 F.3d 654 (7th Cir. 2001). But our

longstanding practice under the RLA has not yet taken into

account the lesson of Arbaugh v. Y&H Corp., 546 U.S. 500

(2006), and other similar cases in which the Supreme Court

has explained that many statutory requirements that have

been termed “jurisdictional” are actually just elements that

must be satisfied for a plaintiff to prevail. “Jurisdiction” is a

word with “many, too many, meanings,” and a proper ruling

on whether a party’s failure to meet a statutory requirement

deprives federal courts of subject matter jurisdiction must be

based on whether Congress clearly indicated that it was set-

ting a jurisdictional limitation. Id. at 510–11, 515–16.

20 Nos. 13-1944 & 13-2054

When a future case requires a decision on whether the

RLA’s arbitration provision is jurisdictional, we will need to

consider carefully the opposing positions recently taken on

the issue by the D.C. and Sixth Circuits. Compare Oakey v.

US Airways Pilots Disability Income Plan, 723 F.3d 227 (D.C.

Cir. 2013) (RLA arbitration requirement is jurisdictional),

with Emswiler v. CSX Transportation, Inc., 691 F.3d 782

(6th Cir. 2012) (not jurisdictional). We need not and do not

decide the issue in this case.

B. Claims Grounded in the Collective Bargaining Agreement?

Congress passed the RLA, which governs railroads and

airlines, to provide for “the prompt and orderly settlement”

of labor disputes in those industries. 45 U.S.C. § 151a; see

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994)

(“Congress’ purpose in passing the RLA was to promote sta-

bility in labor-management relations by providing a com-

prehensive framework for resolving labor disputes.”). To

that end, the Act requires that so-called “minor disputes” be

resolved in arbitration before an adjustment board estab-

lished by the employer and union rather than in court. Ha-

waiian Airlines, 512 U.S. at 252; Atchison, Topeka & Santa Fe Ry.

Co. v. Buell, 480 U.S. 557, 563, 566 (1987); Brown, 254 F.3d at

658. Minor disputes are those “growing out of grievances or

out of the interpretation or application of agreements con-

cerning rates of pay, rules, or working conditions.” 45 U.S.C.

§ 153 First (i). In other words, minor disputes are those

“grounded in” a collective bargaining agreement. Hawaiian

Airlines, 512 U.S. at 256. (By contrast a “major dispute” is one

involving the formation or modification of a collective bar-

gaining agreement. Id. at 252; Chicago & North Western

Nos. 13-1944 & 13-2054 21

Transp. Co. v. Railway Labor Executives’ Ass’n, 908 F.2d 144,

148 (7th Cir. 1990).)

In this case we must fit Title VII claims into this frame-

work, taking care not to interpret the RLA as excluding a

class of employees from statutory protections against em-

ployment discrimination and retaliation. CSX’s position is

that the RLA precludes Carlson’s Title VII claims simply be-

cause the company says that, in refusing to reinstate Carlson

as a substitute yardmaster, it acted pursuant to a collective

bargaining agreement rather than for discriminatory or retal-

iatory reasons. Carlson’s position is that the RLA does not

preclude her claims because she is not asserting any right

under the collective bargaining agreement, which in any

event does not itself prohibit sex discrimination or retalia-

tion.

The Supreme Court’s decision in Hawaiian Airlines pro-

vides important guidance. The plaintiff in Hawaiian Airlines

was an airline mechanic who was fired after he refused to

sign a maintenance record when he believed the airplane

was still not safe. He sued his former employer for wrongful

discharge under a state whistleblower law and a public poli-

cy exception to employment at will. The employer contend-

ed that the RLA preempted the plaintiff’s claim because his

discharge may have been justified under the collective bar-

gaining agreement. The Supreme Court rejected that argu-

ment: a claim based on a right that is “independent” of a col-

lective bargaining agreement is not subject to mandatory ar-

bitration, and a claim is independent if it cannot be “conclu-

sively resolved” by interpreting the collective bargaining

agreement. Hawaiian Airlines, 512 U.S. at 263, 265. This analy-

sis applies regardless of whether the independent right as-

22 Nos. 13-1944 & 13-2054

serted is based on state or federal law. The Court made this

clear in Hawaiian Airlines by reaffirming the holding of

Atchison, Topeka and Santa Fe Ry. Co. v. Buell that the RLA

does not preclude claims under the Federal Employers’ Lia-

bility Act even when the employee may also have a claim

based on the same facts under the collective bargaining

agreement. See 512 U.S. at 258–59, citing Buell, 480 U.S. at

564–65.

The line drawn in Hawaiian Airlines—disputes over rights

under a collective bargaining agreement must be resolved by

an arbitrator while claims based on rights with an independ-

ent basis may be litigated as usual—is generally easy to dis-

cern. On occasion, however, a claim is brought under state or

federal law that in reality asserts rights established by a col-

lective bargaining agreement. For example, in Tice v. Ameri-

can Airlines, Inc., 288 F.3d 313, 316–17 (7th Cir. 2002), we

found that the employees’ claims under the Age Discrimina-

tion in Employment Act were precluded because they relied

on a contention that the collective bargaining agreement en-

titled the employees to certain positions. And sometimes a

nominally independent claim can be “conclusively resolved”

by interpreting a collective bargaining agreement because

the claim’s success depends entirely on the agreement’s

meaning. See Brown, 254 F.3d at 660–61. In Brown, the plain-

tiff’s accommodation request under the Americans with Dis-

abilities Act (ADA) “might very well violate the seniority

system established by the CBA,” and the ADA does not re-

quire accommodations that interfere with the seniority rights

of other employees. Id. at 661; see Eckles v. Consolidated Rail

Corp., 94 F.3d 1041, 1046 (7th Cir. 1996). The “heart of the

dispute” in Brown, we explained, was “a disagreement over

Nos. 13-1944 & 13-2054 23

the interpretation” of a collective bargaining agreement.

254 F.3d at 664.

Carlson’s claims do not fall into the exception illustrated

by Tice and Brown to the general rule that the RLA does not

require arbitration of claims asserting rights established by

state or federal law independent of a collective bargaining

agreement. Unlike the plaintiff in Tice, Carlson does not

claim that she was entitled to a particular job under the col-

lective bargaining agreement. She alleges that her applica-

tions were rejected because of her sex and in retaliation for

protected activity, in violation of Title VII. Her claims thus

depend on a “factual inquiry into any retaliatory [or discrim-

inatory] motive of the employer” rather than on an interpre-

tation of the collective bargaining agreement. See Hawaiian

Airlines, 512 U.S. at 266 (finding such claims are not preclud-

ed or preempted by RLA).

CSX argues that Carlson’s claims could be conclusively

resolved by an arbitral ruling that she was not qualified un-

der the collective bargaining agreement to be a substitute

yardmaster, making her claims equivalent to those in Brown.

The argument is based on a misunderstanding of the nature

of her claims. Even if Carlson did not have the qualifications

specified in the collective bargaining agreement, she would

still have viable Title VII claims if, as she alleges, the same

potentially disqualifying attributes have been overlooked for

men or for others who have not complained about discrimi-

nation. See Rabé v. United Air Lines, Inc., 636 F.3d 866, 873 (7th

Cir. 2011) (holding that a flight attendant’s claim that a col-

lective bargaining agreement’s voucher policy was enforced

against her discriminatorily in violation of Title VII was not

precluded by the RLA because the claim did not “call the

24 Nos. 13-1944 & 13-2054

policy itself into dispute”); Carmona v. Southwest Airlines Co.,

536 F.3d 344, 349–50 (5th Cir. 2008) (claims under Title VII

avoided RLA preclusion because plaintiff alleged “that CBA

procedures were applied in a discriminatory manner, not that

CBA procedures were fundamentally discriminatory”).

As we were careful to clarify in Brown, a claim is not

barred simply because “the action challenged by the plaintiff

is ‘arguably justified’ by the terms of the CBA.” 254 F.3d at

668, quoting Hawaiian Airlines, 512 U.S. at 265–66. An “em-

ployer cannot ensure the preclusion of a plaintiff’s claim

merely by asserting certain CBA-based defenses to what is

essentially a non-CBA-based claim.” Id. at 668. And the fact

that a collective bargaining agreement might be consulted in

resolving a plaintiff’s claims is insufficient to trigger RLA

preclusion. Claims are not precluded just “because certain

provisions of the CBA must be examined and weighed as a

relevant but non-dispositive factor in deciding a claim or a

defense.” Id.

All this is to say that RLA preclusion, properly applied,

does nothing more than keep disputes actually arising under

a collective bargaining agreement out of court. Employees

may enter into a contract requiring that other types of claim

be brought only in arbitration, but if a collective bargaining

agreement simply prohibits employers from doing some-

thing (for example discriminating on a certain basis) or

merely allows arbitration of some type of claim, a claim un-

der an independent law covering the same subject matter is

not precluded. See Felt v. Atchison, Topeka & Santa Fe Ry. Co.,

60 F.3d 1416, 1419 (9th Cir. 1995) (Title VII claim of religious

discrimination was not precluded simply because the collec-

tive bargaining agreement “provides for arbitration of claims

Nos. 13-1944 & 13-2054 25

of religious discrimination”); see also Hawaiian Airlines,

512 U.S. at 262–63 (explaining that a wrongful discharge

claim based on state law can go forward even if it depends

on the same facts as a wrongful discharge claim under a col-

lective bargaining agreement).

So Carlson’s claims under Title VII could proceed in fed-

eral court even if the collective bargaining agreement pro-

hibited sex discrimination and retaliation. Notably, however,

the collective bargaining agreement in this case (as CSX con-

ceded at oral argument) does not prohibit sex discrimination

or retaliation, meaning that CSX is making a truly radical

argument: that Carlson cannot assert in any forum her right

to be free from sex discrimination and retaliation. We can see

no reason to apply the RLA in a way that, in addition to hav-

ing no basis in the text, would lead to that extraordinary re-

sult.

V. CSX’s Motion for Summary Judgment

In its cross-appeal, CSX asks that we grant summary

judgment in its favor if we should decide that Carlson’s

claims were erroneously dismissed. We have so decided, but

we decline to take the unusual step of ruling on a summary

judgment motion that the district court has not considered,

especially one as fact-intensive as this one. The district court

should take the first crack at it. On remand, however, a new

briefing schedule for summary judgment motions will need

to be set because no motion for summary judgment is cur-

rently pending. (The district court denied CSX’s motion as

moot.) Because our decision also reshapes the case by restor-

ing the claims erroneously dismissed on RLA grounds, the

court should reopen discovery so that Carlson can gather

26 Nos. 13-1944 & 13-2054

and present additional evidence now that she is represented

by new counsel.

The district court’s dismissal of Carlson’s claims is

REVERSED and the case is REMANDED for further pro-

ceedings consistent with this opinion.