Sandra Connelly v. Lane Construction Corp

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-3792

_____________

SANDRA CONNELLY,

Appellant

v.

LANE CONSTRUCTION CORPORATION

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2:13-cv-1402)

District Judge: Honorable Terrence F. McVerry

_______________

Argued on September 15, 2015

Before: FISHER, CHAGARES, and JORDAN, Circuit

Judges.

(Filed: January 11, 2016)

_______________

John E. Stember, Esq.

Emily E. Town, Esq. [ARGUED]

Stember Cohn & Davidson-Welling, LLC

425 First Avenue, 7th Floor

The Harley Rose Building

Pittsburgh, PA 15219

Counsel for Appellant

Samantha M. Clancy, Esq. [ARGUED]

Maria Greco Danaher, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

One PPG Place, Suite 1900

Pittsburgh, PA 15222

Counsel for Appellee

Christine J. Back, Esq. [ARGUED]

Equal Employment Opportunity Commission

131 M Street, N.E. – 5th Fl.

Washington, DC 20507

Counsel for Amicus Appellant

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OPINION

_______________

JORDAN, Circuit Judge.

Sandra Connelly appeals the dismissal of the

employment discrimination claims she brought against her

former employer, Lane Construction Corporation (“Lane”).

We disagree with the District Court’s assessment that

Connelly failed to plead plausible claims and, accordingly,

2

will vacate the order of dismissal and remand for further

proceedings.

I. BACKGROUND

A. Factual History1

Lane is a construction company operating in 20 states.

In May 2006, it hired Sandra Connelly as a union truck driver

at its Pittsburgh, Pennsylvania facility, and she worked during

construction seasons – normally from March or April until

October or November of each year – until near the close of

the season in October 2010. During Connelly’s tenure with

the company, Lane employed seven union truck drivers at

that location. Connelly ranked fifth in seniority and was the

only woman. Since October 2010, Lane has employed no

female truck drivers at its Pittsburgh facility.

Sometime after May 2007, and allegedly because

Connelly had ended a romance with a man who also worked

at Lane, her male co-workers began “curs[ing] at Connelly

and belittl[ing] her on a daily basis.” (App. 29.) Some male

drivers refused to speak directly to her. In the summer of

2007, another Lane employee told Connelly that Connelly’s

former boyfriend, truck driver Mark Nogy, was making

“increasingly frequent and disparaging” comments about her.

(App. 29.) The employee went on to say that he had

1

Because the District Court addressed Connelly’s

Amended Complaint upon a motion to dismiss, we recount

the facts as alleged in that pleading and draw all reasonable

inferences in favor of Connelly. Phillips v. Cty. of Allegheny,

515 F.3d 224, 231 (3d Cir. 2008).

3

complained about Nogy’s behavior to Charlie Ames, a Lane

executive. Connelly herself told several supervisors at Lane

about the hostile treatment she was experiencing. She called

the company’s Connecticut headquarters and, a day later,

Ames and another Lane executive met with her to discuss the

harassment problem. Following the meeting, Lane suspended

Nogy for three days but did not discipline or warn any other

Lane employees, who continued to harass and disparage

Connelly.

In early 2009, Connelly learned that Lane employees

could make job-related complaints through the company’s

“Ethics Line,” which she called multiple times to report

further harassment from Nogy, to make complaints about her

male co-workers drinking on the job, and to report

“discriminatory treatment due to her gender and her previous

complaints about the hostile work environment.” (App. 31.)

In or around May 2010, Lane foreman George

Manning made an unwanted physical advance to Connelly,

coming close to her and saying, “[O]ne day I’m going to kiss

you.” (App. 31.) Connelly backed away and said “No,” and

she reported the incident to the Ethics Line a few days later.

(App. 31.) She also reported the incident to supervisor

Jeremy Hostetler, requesting that he transfer her to another

work site because she was now uncomfortable working with

Manning. Hostetler expressed disbelief that Manning would

“do something like that.” (App. 32.) Although Hostetler told

Connelly that he wanted to meet with her and Manning

together, no such meeting occurred. After Connelly again

called the Ethics Line about the situation, Hostetler agreed to

transfer her to another job site, although it appears that

Connelly continued to work from Lane’s Pittsburgh facility.

4

Connelly’s relationship with both her supervisors and her

male co-workers became “increasingly strained” throughout

2010, during which time she made numerous complaints to

the Ethics Line and to local management at the Pittsburgh

facility. (App. 32.)

In October 2010, Lane supervisor Jerry Schmittein

became “incensed” at Connelly when she refused to drive a

truck that had a flat tire and steering problems. (App. 32.)

Schmittein “persisted in berating Connelly,” despite her

explanation that she could not safely operate the truck. (App.

32.) Connelly contacted Ames, who instructed her to leave

the job site. A short time later, and despite her seniority,

Connelly was laid off before the end of the construction

season and before any of the other union truck drivers. Lane

has never recalled her to work.

Lane did, however, recall Connelly’s male truck driver

co-workers in 2011, and it continues to employ them. In

April or May of 2011, after Connelly saw several of her co-

workers working at a job site, she repeatedly telephoned

Ames to ask why she had not been recalled. Ames cited the

bad economy and told her that no work was available. In one

conversation, Ames told her that he would recall her if Lane

“got more work.” (App. 33.)

Connelly had observed that all six of her male truck

driver co-workers were working for Lane, so she called Ames

and asked why union drivers with less seniority than her had

been recalled before she was. In Connelly’s experience,

between 2006 and 2010, Lane had always recalled truck

drivers in order of seniority. Ames told Connelly that the

truck driver with the least seniority had been permitted to

5

return to work as a general laborer because “he needed to

work.” (App. 33.) Lane had not offered any such

accommodation to Connelly. Ames also explained that the

other driver with less seniority than Connelly had been

recalled to operate what was known as the “tack” truck

because Connelly did not have the requisite training to

operate that type of vehicle. (App. 33.) Connelly asked why

the most senior driver, who was the primary tack truck

operator, was no longer driving that truck. Ames answered

that that driver was the “senior man – he can choose what he

drives.” (App. 33.) However, Lane had not previously

permitted truck drivers to choose their work assignment based

on seniority, and the union’s collective bargaining agreement

provided that “[d]rivers in accordance with their

qualifications and seniority shall be offered the highest rate

classification of work but cannot choose their equipment or

work assignments.” (App. 33.) Connelly was qualified to

operate – and routinely had operated – all of the trucks used

by Lane other than the tack truck.

Connelly also observed non-union truck drivers

working at Lane sites in the spring and summer of 2011. In

addition, she saw Lane employing rental trucks from other

companies and using Lane laborers to drive trucks. Prior to

2011, Lane had only resorted to that when no Lane drivers

were available, and never when a Lane driver was waiting to

be recalled.

B. Procedural History

On September 26, 2013, Connelly filed her original

complaint in the United States District Court for the Western

District of Pennsylvania, alleging claims of gender-based

6

disparate treatment, sexual harassment, hostile work

environment, and retaliation under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended

(“Title VII”), and the Pennsylvania Human Relations Act, 43

P.S. § 951 et seq. (“PHRA”). Lane responded by filing an

answer along with a motion to partially dismiss the

complaint. The Court dismissed as time-barred all but the

retaliation claim, which related to Lane’s failure to rehire

Connelly in April 2011, but granted Connelly’s request to file

an amended complaint.

Connelly then filed her Amended Complaint, alleging

separate counts of disparate treatment and retaliation under

both Title VII and the PHRA. Lane promptly moved to

dismiss the Amended Complaint under Federal Rule of Civil

Procedure 12(b)(6) and, after briefing, the District Court

granted that motion. The Court held that, with respect to her

disparate treatment claims, Connelly had “failed to plead a

sufficiently plausible inference that she was not rehired due to

her gender.” (App. 12.) Similarly, the Court held that the

Amended Complaint failed to allege sufficient facts to

establish a plausible claim of retaliation. It also denied

Connelly’s request to file a second amended complaint. The

District Court thus dismissed all of Connelly’s claims with

prejudice. She timely appealed.

II. DISCUSSION2

2

The District Court had jurisdiction over the federal

claims under 28 U.S.C. §§ 1331 and 1343, and supplemental

jurisdiction over the related state law claims under 28 U.S.C.

§ 1367. We have appellate jurisdiction over the final decision

of the District Court pursuant to 28 U.S.C. § 1291. We

7

Connelly asserts two claims of error. First, she says

that the District Court erred in holding that her Amended

Complaint failed to meet the plausibility standard set forth in

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

Ashcroft v. Iqbal, 556 U.S. 662 (2009). Second, she argues

that the District Court should have granted her leave to

further amend the Amended Complaint. Because we agree

with her on the first point, we need not reach the second.3

A. Standards for Pleading Sufficiency

review the District Court’s decision to grant a motion to

dismiss under a plenary standard. Fowler v. UPMC

Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). We are

“required to accept as true all allegations in the complaint and

all reasonable inferences that can be drawn from them after

construing them in the light most favorable to the

nonmovant.” Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d

153, 154 n.1 (3d Cir. 2014) (quotation marks and citations

omitted). However, as more fully described herein, we

disregard legal conclusions and recitals of the elements of a

cause of action supported by mere conclusory statements.

Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.

2010).

3

Connelly only sought a curative amendment if the

District Court decided to dismiss the Amended Complaint

under Rule 12(b)(6). In that event, she asked for leave to

“bolster the factual allegations related to her retaliation and

disparate treatment claims.” (App. 14.) Because we

conclude that Connelly’s pleadings were sufficient to survive

the motion to dismiss, no curative amendment is necessary.

8

A complaint may be dismissed under Rule 12(b)(6) for

“failure to state a claim upon which relief can be granted.”

But detailed pleading is not generally required. The Rules

demand “only ‘a short and plain statement of the claim

showing that the pleader is entitled to relief,’ in order to ‘give

the defendant fair notice of what the … claim is and the

grounds upon which it rests.’” Twombly, 550 U.S. at 555

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “To

survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Iqbal, 556 U.S. at 678

(citation and internal quotation marks omitted). “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.; see also

Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d

Cir. 2010). Although the plausibility standard “does not

impose a probability requirement,” Twombly, 550 U.S. at 556,

it does require a pleading to show “more than a sheer

possibility that a defendant has acted unlawfully,” Iqbal, 556

U.S. at 678. A complaint that pleads facts “merely consistent

with a defendant’s liability … stops short of the line between

possibility and plausibility of entitlement to relief.” Id.

(citation and internal quotation marks omitted). The

plausibility determination is “a context-specific task that

requires the reviewing court to draw on its judicial experience

and common sense.” Id. at 679.

Under the pleading regime established by Twombly

and Iqbal, a court reviewing the sufficiency of a complaint

must take three steps.4 First, it must “tak[e] note of the

4

Although Ashcroft v. Iqbal described the process as a

9

elements [the] plaintiff must plead to state a claim.” Iqbal,

556 U.S. at 675. Second, it should identify allegations that,

“because they are no more than conclusions, are not entitled

to the assumption of truth.” Id. at 679. See also Burtch v.

Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011)

(“Mere restatements of the elements of a claim are not

entitled to the assumption of truth.” (citation and editorial

marks omitted)). Finally, “[w]hen there are well-pleaded

factual allegations, [the] court should assume their veracity

and then determine whether they plausibly give rise to an

entitlement to relief.” Iqbal, 556 U.S. at 679.

B. The Elements Necessary to State a Claim

We thus begin by taking note of the elements Connelly

must plead to state her claims. With respect to her disparate

treatment claim, Title VII makes it an “unlawful employment

practice for an employer … to discriminate against any

individual …, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

See also Desert Palace, Inc. v. Costa, 539 U.S. 90, 92-93

(2003). In 1991, Congress amended Title VII to further

specify that, “[e]xcept as otherwise provided in this

subchapter, an unlawful employment practice is established

when the complaining party demonstrates that race, color,

religion, sex, or national origin was a motivating factor for

“two-pronged approach,” 556 U.S. 662, 679 (2009), the

Supreme Court noted the elements of the pertinent claim

before proceeding with that approach, id. at 675-79. Thus,

we have described the process as a three-step approach.

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d

Cir. 2011) (citing Santiago, 629 F.3d at 130).

10

any employment practice, even though other factors also

motivated the practice.” 42 U.S.C. § 2000e-2(m). In Watson

v. Southeastern Pennsylvania Transportation Authority, we

interpreted that amendment to apply only to the category of

discrimination cases that involve a “mixed-motive.” 207 F.3d

207, 214-20 (3d Cir. 2000). Generally speaking, in a “mixed-

motive” case a plaintiff claims that an employment decision

was based on both legitimate and illegitimate reasons. Such

cases are in contrast to so-called “pretext” cases, in which a

plaintiff claims that an employer’s stated justification for an

employment decision is false.

A Title VII plaintiff may make a claim for

discrimination “under either the pretext theory set forth in

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

or the mixed-motive theory set forth in Price Waterhouse v.

Hopkins[, 490 U.S. 228 (1989)], under which a plaintiff may

show that an employment decision was made based on both

legitimate and illegitimate reasons.”5 Makky v. Chertoff, 541

5

An employee proceeding under the McDonnell

Douglas pretext framework bears the initial burden of

establishing a prima facie case by showing: (1) that she was a

member of a protected class, (2) that she was qualified for the

job, and (3) another person, not in the protected class, was

treated more favorably. See Scheidemantle v. Slippery Rock

Univ. State Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir.

2006). If the employee establishes a prima facie case, the

burden shifts to the employer to establish a legitimate

nondiscriminatory reason for its employment action. Id. If

the employer provides such a reason, the burden shifts back to

the employee to show that the proffered reason was mere

pretext for actual discrimination. Id. Notwithstanding this

11

F.3d 205, 213 (3d Cir. 2008). As we recognized in Watson,

the “pretext” and “mixed-motive” labels can be misleading

because, even in a case that does not qualify for a burden-

shifting instruction under Price Waterhouse, the employer’s

challenged conduct may nevertheless result from two or more

motives, and the plaintiff “need not necessarily show ‘pretext’

but may prevail simply by showing, through direct or

circumstantial evidence, that the challenged action resulted

from discrimination.” 207 F.3d at 214 n.5 (3d Cir. 2000)

(citations omitted). Under either theory of discrimination, the

plaintiff must establish that her protected status was a factor

in the employer’s challenged action. The difference is in the

burden-shifting framework, a plaintiff who produces “direct

evidence” of discrimination may proceed under the mixed-

motive framework of Price Waterhouse v. Hopkins. 490 U.S.

228, 276 (1989) (O’Connor, J., concurring). As we explained

in Armbruster v. Unisys Corp.:

[I]n the Price Waterhouse framework … the

evidence the plaintiff produces is so revealing

of discriminatory animus that it is not necessary

to rely on any presumption from the prima facie

case to shift the burden of production. Both the

burden of production and the risk of non-

persuasion are shifted to the defendant who …

must persuade the factfinder that even if

discrimination was a motivating factor in the

adverse employment decision, it would have

made the same employment decision regardless

of its discriminatory animus.

32 F.3d 768, 778 (3d Cir. 1994).

12

degree of causation that must be shown: in a “mixed-motive”

case, the plaintiff must ultimately prove that her protected

status was a “motivating” factor, whereas in a non-mixed-

motive or “pretext” case, the plaintiff must ultimately prove

that her status was a “determinative” factor. See id. at 214-20

(summarizing the distinction in standards of causation that

apply to “pretext” and “mixed-motive” cases and concluding

that the 1991 amendment to Title VII did not alter that

distinction).

Connelly’s Amended Complaint does not specify

whether she intends to proceed under a “mixed-motive” or a

“pretext” theory, and understandably so. The distinction

between those two types of cases “lies in the kind of proof the

employee produces on the issue of [the employer’s] bias,”

Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1097

(3d Cir. 1995), and identifying the proof before there has

been discovery would seem to put the cart before the horse.

Indeed, we have said that, even at trial, an employee “may

present his case under both theories,” provided that, prior to

instructing the jury, the judge decides whether one or both

theories applies. Id. at 1098 (internal citation omitted); see

also Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 448

(8th Cir. 1993) (stating that “[w]hether a case is a pretext case

or a mixed-motives case is a question for the court once all

the evidence has been received”). Thus, for purposes of

noting the elements Connelly must plead to state a disparate

treatment claim, we take it as given that she may advance

either a mixed-motive or a pretext theory.

The District Court, however, incorrectly evaluated the

Amended Complaint as if Connelly were confined to showing

pretext. Moreover, the Court’s analysis proceeded with a

13

point-by-point consideration of the elements of a prima facie

case required under a pretext theory. It is thus worth

reiterating that, at least for purposes of pleading sufficiency, a

complaint need not establish a prima facie case in order to

survive a motion to dismiss.6 A prima facie case is “an

evidentiary standard, not a pleading requirement,”

Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002), and

hence is “not a proper measure of whether a complaint fails to

state a claim.” Fowler v. UPMC Shadyside, 578 F.3d 203,

213 (3d Cir. 2009). As we have previously noted about

pleading in a context such as this,

[a] determination whether a prima facie case

has been made … is an evidentiary inquiry – it

defines the quantum of proof [a] plaintiff must

present to create a rebuttable presumption of

discrimination. Even post-Twombly, it has been

6

In Makky v. Chertoff, we held that the plaintiff could

not avoid dismissal of his mixed-motive discrimination claim

if there was “unchallenged objective evidence” that he did not

possess the “baseline qualifications” to do his job, because

such a plaintiff would inevitably fail to establish a prima facie

case of employment discrimination after the pleading stage.

541 F.3d 205, 215 (3d Cir. 2008). However, our analysis

explicitly assumed the sufficiency of the plaintiff’s pleadings,

id. at 214, and we limited our “necessarily narrow” holding to

those rare mixed-motive cases in which the plaintiff’s lack of

baseline qualifications is “capable of objective determination

before discovery,” as when the job requires consideration of a

license or similar prerequisite, id. at 215. Thus, that opinion

expressly recognized that the prima facie case is a separate

inquiry that generally cannot occur until after discovery.

14

noted that a plaintiff is not required to establish

the elements of a prima facie case … .

Id. at 213 (citation omitted). Instead of requiring a prima

facie case, the post-Twombly pleading standard “‘simply calls

for enough facts to raise a reasonable expectation that

discovery will reveal evidence of’ the necessary element[s].”

Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir.

2008) (quoting Twombly, 550 U.S. at 556).

Should her case progress beyond discovery, Connelly

could ultimately prevail on her disparate treatment claim by

proving that her status as a woman was either a “motivating”

or “determinative” factor in Lane’s adverse employment

action against her. Therefore, at this early stage of the

proceedings, it is enough for Connelly to allege sufficient

facts to raise a reasonable expectation that discovery will

uncover proof of her claims.

For the same reasons, Connelly’s retaliation claim may

survive Lane’s motion to dismiss if she pleads sufficient

factual allegations to raise a reasonable expectation that

discovery will reveal evidence of the following elements: (1)

she engaged in conduct protected by Title VII; (2) the

employer took adverse action against her; and (3) a causal

link exists between her protected conduct and the employer’s

adverse action. Charlton v. Paramus Bd. of Educ., 25 F.3d

194, 201 (3d Cir. 1994).

C. Excluding Conclusory Allegations

At the second step in our pleading analysis, we

identify those allegations that, being merely conclusory, are

15

not entitled to the presumption of truth. Twombly and Iqbal

distinguish between legal conclusions, which are discounted

in the analysis, and allegations of historical fact, which are

assumed to be true even if “unrealistic or nonsensical,”

“chimerical,” or “extravagantly fanciful.” Iqbal, 556 U.S. at

681. Put another way, Twombly and Iqbal expressly declined

to exclude even outlandish allegations from a presumption of

truth except to the extent they resembled a “formulaic

recitation of the elements of a … claim” or other legal

conclusion.7 Id. (internal quotation marks omitted); see also

Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 827 (7th Cir.

2015) (concluding that allegations that were “neither legal

assertions nor conclusory statements reciting the elements of

a cause of action” were “entitled to a presumption of truth”

under Iqbal). Perhaps “some allegations, while not stating

ultimate legal conclusions, are nevertheless so threadbare or

speculative that they fail to cross the line between the

conclusory and the factual,” but the clearest indication that an

allegation is conclusory and unworthy of weight in analyzing

the sufficiency of a complaint is that it embodies a legal

point. Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 595

(1st Cir. 2011) (citation and internal quotation marks

omitted).

7

The Court in Iqbal clarified that it was only the

conclusory nature of certain allegations – that is, their mere

recitation of formulaic legal elements – that rendered them

excludable: “[W]e do not reject these bald allegations on the

ground that they are unrealistic or nonsensical. … It is the

conclusory nature of [the] allegations, rather than their

extravagantly fanciful nature, that disentitles them to the

presumption of truth.” Iqbal, 556 U.S. at 681.

16

Although the District Court considered the Amended

Complaint to be “extremely vague and conclusory,” it did not

specifically identify any allegations that, being mere legal

conclusions, should have been discounted. (App. 10.) In our

plenary review of the motion to dismiss, we consider the

following allegations in the Amended Complaint to be

disentitled to any presumption of truth: (1) that Connelly’s

supervisors at Lane “subjected her to disparate treatment

based on her gender and retaliation for making complaints

about discrimination and sexual harassment” (App. 26); (2)

that Lane, “[b]y subjecting Connelly to discrimination based

on her gender and retaliation,” violated Title VII and the

PHRA (App. 26-27); (3) that Connelly was an “employee” of

Lane “within the meaning of Title VII and the PHRA” (App.

27); (4) that “[a]t all times relevant to this case, [Lane] was an

‘employer’ within the meaning of Title VII and the PHRA”

(App. 27); and (5) that “Connelly has exhausted her federal

and state administrative remedies.” (App. 36). All of these

allegations paraphrase in one way or another the pertinent

statutory language or elements of the claims in question. To

the extent that Connelly’s allegation that she “was sexually

harassed” by Manning states a legal conclusion, that is also

excluded, although her factual allegations describing

Manning’s behavior and her reaction to him, along with her

allegation that his threatened physical contact was

“unwanted,” are accepted as true. (App. 31.)

D. Construing the Historical Facts in the

Plaintiff’s Favor

Even after Twombly and Iqbal, a complaint’s

allegations of historical fact continue to enjoy a highly

favorable standard of review at the motion-to-dismiss stage of

17

proceedings. See Phillips, 515 F.3d at 231 (noting that

Twombly “leaves intact” the pleading standard under which

“detailed factual allegations” are not required). Although a

reviewing court now affirmatively disregards a pleading’s

legal conclusions, it must still – as we have already

emphasized – assume all remaining factual allegations to be

true, construe those truths in the light most favorable to the

plaintiff, and then draw all reasonable inferences from them.

Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1

(3d Cir. 2014); see also Phillips, 515 F.3d at 231 (holding

that Twombly did not “undermine [the] principle” that all

reasonable inferences are to be drawn in favor of the plaintiff,

and reaffirming that “the facts alleged must be taken as true

and a complaint may not be dismissed merely because it

appears unlikely that the plaintiff can prove those facts or will

ultimately prevail on the merits”).

1. The Disparate Treatment Claim

With respect to Connelly’s disparate treatment claim,8

the Amended Complaint set forth sufficient factual

allegations to raise a reasonable expectation that discovery

would reveal evidence that Connelly was a member of a

8

While Connelly advances a disparate treatment claim

under both Title VII and the PHRA, we refer to those claims

in the singular, as they are governed by essentially the same

legal standards. See Goosby v. Johnson & Johnson Med.,

Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000) (“The analysis

required for adjudicating [plaintiff’s discrimination] claim

under PHRA is identical to a Title VII inquiry, and we

therefore do not need to separately address her claim under

the PHRA.”) (internal citation omitted).

18

protected class and that she suffered an adverse employment

action when Lane did not rehire her in 2011. More

specifically, Connelly has alleged that (i) during her tenure at

Lane, she was the only female truck driver at the Pittsburgh

facility; (ii) she was qualified to drive all but one of Lane’s

trucks; (iii) Lane failed to rehire her at the start of the 2011

construction season, despite recalling the six other union

truck-drivers – all male, and two with less union seniority

than Connelly; and (iv) since failing to rehire Connelly, Lane

has employed no other female truck drivers. Once accepted

as true and construed in the light most favorable to the

plaintiff, those allegations raise a reasonable expectation that

discovery will reveal evidence that Connelly’s protected

status as a woman played either a motivating or determinative

factor in Lane’s decision not to rehire her. That is enough for

Connelly’s disparate treatment claim to survive a motion to

dismiss. Cf. Fowler, 578 F.3d at 211-12 (“Although [the]

complaint is not as rich with detail as some might prefer, it

need only set forth sufficient facts to support plausible

claims.”).

Connelly has also alleged that Lane apparently

deviated from its own past hiring norms and work

assignments during the 2011 construction season by

employing rental trucks and allowing a less senior driver to

operate the tack truck. Once accepted as true and construed

in the light most favorable to Connelly, those factual

allegations would also permit the reasonable inference that

Lane’s proffered explanation that it failed to rehire Connelly

for lack of work was pretextual. But, to be clear, at this stage

Connelly is not obliged to choose whether she is proceeding

under a mixed-motive or pretext theory, nor is she required to

establish a prima facie case, much less to engage in the sort of

19

burden-shifting rebuttal that McDonnell Douglas requires at a

later stage in the proceedings. It suffices for her to plead facts

that, construed in her favor, state a claim of discrimination

that is “plausible on its face.” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 570). She has done that.

2. The Retaliation Claim

Turning to the elements of Connelly’s retaliation

claim, the facts alleged in the Amended Complaint, taken as

true, also raise a reasonable expectation that discovery will

reveal evidence both that Connelly engaged in activity

protected by Title VII and that Lane took an adverse

employment action against her.9 To the latter point, Lane

took an adverse employment action against Connelly when it

failed to rehire her at the start of the 2011 construction

season. To the former, Connelly engaged in protected

activity when she filed multiple complaints of sexual

harassment – including and most obviously her May 2010

complaint that Manning, a company foreman, had made

unwanted physical advances toward her.10

9

Again, although Connelly’s retaliation claims are

advanced under both Title VII and the PHRA, we refer to

those claims in the singular because the same framework for

analyzing retaliation claims applies to both. Cf. Krouse v.

Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (“[W]e

analyze ADA retaliation claims under the same framework

we employ for retaliation claims arising under Title VII.”).

10

To be protected from retaliation under Title VII, the

protected activity must relate to employment discrimination

charges brought under that statute, implicating

“discrimination on the basis of race, color, religion, sex, or

20

The District Court held that Connelly’s retaliation

claim came short of plausibility by “fail[ing] to plead a causal

connection between the failure to rehire Connelly in April

2011 and her alleged protected activity.” (App. 13.) In

pertinent part, the District Court concluded that there was “no

temporal proximity (as pled, her last report of sexual

harassment was in May 2010, almost a year prior to the

failure to rehire her), and no pattern of antagonism by Lane

management.” (App. 13.)

Given the seasonal character of Connelly’s work, we

question the District Court’s conclusion about temporal

proximity. Because Lane only hired Connelly during

construction seasons, traditionally laying workers off in

October or November and then rehiring them in March or

April of the following year, it may be that a retaliatory

decision to not rehire her would not become apparent until

after the off-season that ran from October 2010 to March

2011.11

national origin.” Slagle v. Cty. of Clarion, 435 F.3d 262, 268

(3d Cir. 2006). For that reason, we agree with the District

Court that Connelly’s other complaints, to the extent they

implicated only safety issues, were not protected activity for

purposes of her retaliation claim.

11

As we have already stated, no showing of proof is

necessary at this stage of the proceedings, but even if the

record ultimately produced no evidence of temporal

proximity suggestive of retaliation, that would not necessarily

be fatal to Connelly’s claim. See Robinson v. Se. Pa. Transp.

Auth., 982 F.2d 892, 894 (3d Cir. 1993) (“The mere passage

of time is not legally conclusive proof against retaliation.”);

21

In any case, the question of temporal proximity does

not render Connelly’s retaliation claim facially implausible.

Connelly alleged that, after she complained of Manning’s

unwanted advances, and after overcoming another

supervisor’s resistance to her grievance by complaining

Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d

Cir. 1997) (“It is important to emphasize that it is causation,

not temporal proximity itself, that is an element of plaintiff’s

prima facie case, and temporal proximity merely provides an

evidentiary basis from which an inference can be drawn.”).

Where the time between the protected activity

and adverse action is not so close as to be

unusually suggestive of a causal connection

standing alone, courts may look to the

intervening period for demonstrative proof,

such as actual antagonistic conduct or animus

against the employee, or other types of

circumstantial evidence, such as inconsistent

reasons given by the employer for terminating

the employee or the employer’s treatment of

other employees, that give rise to an inference

of causation when considered as a whole.

Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir.

2007) (citations omitted and emphasis added). Even at this

stage, if one accepts as true all of Connelly’s factual

allegations about her union seniority, Lane’s past hiring

practices, the company’s traditional distribution of labor, and

her personal observations of Lane’s 2011 workforce, one

could reasonably draw the inference that Lane gave Connelly

inconsistent and false reasons for declining to rehire her.

22

directly to the Ethics Line, her relationship with both her

supervisors and male co-workers became “increasingly

strained” throughout the year. (App. 32.) Thus, Connelly has

alleged facts that could support a reasonable inference of a

causal connection between her protected activity in May 2010

and the gradual deterioration of her relationship with her

employer until she was laid off in October 2010.

In finding no causal connection between Connelly’s

protected acts and Lane’s failure to rehire her in 2011, the

District Court noted that Lane continued to rehire Connelly

for four consecutive years despite her many complaints, and

even encouraged her to continue calling the Ethics Line.

While we agree that those facts could be viewed as cutting

against Connelly, that is not what the applicable standard of

review allows at this point in the case. We must adhere to the

requirement that all alleged facts be construed in the light

most favorable to the plaintiff, which, if done, permits the

view that gender discrimination was a motivating factor or

determinative factor in the decision not to recall Connelly in

2011. Likewise, the fact that Lane continued to rehire

Connelly for four years despite her complaints about co-

workers, but declined to rehire her at the first such

opportunity after she complained of harassment by a

supervisor, can be construed to support a reasonable inference

of a causal connection between the protected act and the

adverse employment action.

Therefore, even if one believed it “unlikely that the

plaintiff can prove those facts or will ultimately prevail on the

merits,” Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S.

at 563 n.8), it must still be said that Connelly – under a

favorable standard of review – has raised a reasonable

23

inference that discovery will reveal evidence of the elements

necessary to establish her claims.

III. CONCLUSION

Because Connelly has alleged facially plausible claims

sufficient to survive a motion to dismiss, we will vacate the

District Court’s Order dismissing the Amended Complaint

and remand for further proceedings consistent with this

opinion.

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