Amicus Curiae Brief — Swierkiewicz v. Sorema NA

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ra et ne:

(1) Supreme Court, U.S

FILED

No. 00-1853

HOV=F5=2001

In the (Vw 6 aool

OFFICE OF THE CLERK

Supreme Court of the Gnited States

AKOS SWIERKIEWICZ,

Petitioner,

SOREMA N.A.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF AMICI CURIAE OF

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION,

AARP, AMERICAN CIVIL LIBERTIES UNION,

THE NATIONAL PARTNERSHIP FOR WOMEN AND

FAMILIES, THE NATIONAL WOMEN’S LAW CENTER,

AND NOW LEGAL DEFENSE AND EDUCATION FUND

IN SUPPORT OF PETITIONER

PAULA A. BRANTNER PAUL W. MOLLICA

Senior Staff Attorney Counsel of Record

NATIONAL EMPLOYMENT MEITES, MULDER, BURGER

LAWYERS ASSOCIATION & MOLLICA

44 Montgomery Street 208 South LaSalle Street

Suite 2080 Suite 1410

San Francisco, CA 94107 Chicago, IL 60604

(415) 296-7629 (312) 263-0272

Attorneys for Amici Curiae

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, ET AL.

[Additional Amici listed on inside front cover]

Midwest Law Printing Company/Photex — Chicago — (312) 321-0220

| DANIEL B. KOHRMAN

THOMAS W. OSBORNE

AARP FOUNDATION LITIGATION

MELVIN RADOWITZ

AARP

601 E Street, N.W.

Washington, DC 20049

(202) 434-2060

STEVEN R. SHAPIRO

LENORA M. LAPIDUS

JAMES D. ESSEKS

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500

JUDITH L. LICHTMAN

JOCELYN C. FRYE

NATIONAL PARTNERSHIP FOR

WOMEN AND FAMILIES

1875 Connecticut Avenue, N.W.

Suite 650

Washington, DC 20009

(202) 986-2600

MARCIA D. GREENBERGER

DEBORAH CHALFIE

NATIONAL WOMEN’S LAW CENTER

11 Dupont Circle, Suite 800

Washington, DC 20036

(202) 588-5180

MARTHA F. DAVIS

NOW LEGAL DEFENSE AND

EDUCATION FUND

395 Hudson Street

New York, NY 10014

(212) 925-6635

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ..................5. iii

INTEREST OF AMICI CURIAE ................45. 1

SUMMARY OF ARGUMENT .................... 4

EEE LES 4

I. THE FEDERAL RULES DISFAVOR COURT-

IMPOSED, HEIGHTENED PLEADING RE-

td ea ne cc eeacecee< 6

A. The Federal Rules Decisively Rejected

Code Pleading In Favor of Notice Plead-

B. The Cumulative Force of the Federal

Rules Favors Economical Pleading ....... 11

| C. Rule 12(bX6) Does Not Allow Dismissal

of a Complaint Simply Because It Pleads

Discrimination In a Conclusory Fashion .. 14

II. HEIGHTENED PLEADING RULES CANNOT

BE JUSTIFIED IN EMPLOYMENT DISCRIM-

INATION CASES ....... 0.0 e cece ce eceeees 18

A. The Employer Already Has Notice of the

Claim Through the EEOC Charge ....... 19

B. In Employment Discrimination Cases,

Employers Control the Key Facts........ 21

C. The Decision Below Requires Premat

Pleading of Legal Theories res

CONCLUSION

TABLE OF AUTHORITIES

Cases PAGE(S)

Associated General Contractors of

California, Inc. v. California State

Council of Carpenters, 458 U.S. 519

a ree Seesseddedeéeoenseue 18

Atchison Topeka and Santa Fe Ry. Co.

v. Buell, 480 U.S. 557 (1987) ..............45. 9

Bell v. Birmingham Linen Service,

715 F.2d 1552 (11th Cir. 1983) ............... 21

Bennett v. Schmidt,

153 F.3d 516 (7th Cir. 1998) ........... 11, 12,17

Brower v. County of Inyo,

SPEED éd-cconcveseesosoevceséses 16

Cable v. Ivy Tech State College,

200 F.3d 467 (7th Cir. 1999) ..............4.. 20

Celotex Corp. v. Catrett,

GG ED © cb ecorccéacescesecceses 14

Chanda v. Engelhard /ICC,

234 F.3d 1219 (11th Cir. 2000) ............... 20

Cheek v. Western & Southern Life Ins. Co.,

31 F.3d 497 (7th Cir. 1994) ............00005- 20

Conley v. Gibson,

355 U.S. 41 (1967) ....... cece ececcnees passim

Crawford-El v. Britton,

523 U.S. 574 (1998) ...................... 13

Cruz v. Beto,

405 U.S. 319 (1972) ...................... 16

Edelman v. Lynchberg College

121 S. Ct. 2547 (2001) ...... 2... 0... eee. 19

EEOC v. J.H. Routh Packing Co.,

246 F.3d 850 (6th Cir. 2001) .............. 12, 17

Evans v. McDonald’s Corp.,

936 F.2d 1087 (10th Cir. 1991)............... 22

Franks v. Bowman Transp. Co.,

SE dnb cckccecncdesdudddaauc 22

Furnco Constr. Corp. v. Waters,

EE Rr re ee ere 22

Gregory v. Daly,

243 F.3d 687 (2d Cir. 2001).................. 17

Hickman v. Taylor,

I a sl 8

Hishon v. King & Spalding,

I i i 16

Hospital Bldg. Co. v. Trustees of Rex

Hospital, 425 U.S. 738 (1976) ................ 16

International Brotherhood of Teamsters

v. United States, 431 U.S. 324 (1977) ......... 22

Jackson v. Marion County,

66 F.3d 151 (7th Cir. 1995) .......-.---eee- 9,11

Kirksey v. R.J. Reynolds Tobacco Co.,

168 F.3d 1039 (7th Cir. 1999) ...........-- 21-22

Leatherman v. Tarrant County Narcotics

Intelligence Coordination Unit, _

507 U.S. 163 (1993) .........--+-+---+s 69,13

Loeb v. Textron,

600 F.2d 1003 (1st Cir. 1979) ........--eeeees 21

Lujan v. National Wildlife Federation,

497 U.S. 871 (1990) ....... cece eee cece ee eeee 14

McCalden v. California Library Assoc.,

955 F.2d 1214 (9th Cir. 1990) ........-00-eees 22

McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273 (1976) ...... cece cece eee ee eeee 16

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) .......- eee eee ee eeee passim

McLain v. Real Estate Bd. of New Orleans,

Inc., 444 U.S. 232 (1980) .... 0.2 eee cece eeeeee 18

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) ....... se eeee seen eeeeees 22

Ring v. First Interstate Mortg., Inc.,

984 F.2d 924 (8th Cir. 1993) ......----eeeeeee 17

Scott v. City of Chicago,

195 F.3d 950 (7th Cir. 1999) ................. 13

Scheuer v. Rhodes,

ELE Ee Re a 15

Sparrow v. United Air Lines, Inc.,

216 F.3d 1111 (D.C. Cir. 2000) ............ 12, 17

Village of Willowbrook v. Olech,

528 U.S. 562 (2000) .................055. 15-16

Watson v. Fort Worth Bank & Trust Co.,

ED Subbduschdbadiseckekaca. 22

Weston v. Pennsylvania,

251 F.3d 420 (3d Cir. 2001).................. 17

White v. New Hampshire Dept. of Corrections,

221 F.3d 254 (1st Cir. 2000) ................. 20

Yamaguchi v. U.S. Dept. of the Air Force,

109 F.3d 1475 (9th Cir. 1997) ............. 12,17

Federal Statutes, Regulations and Rules

29 U.S.C. § 621 et seq. 2.0... ccc eee eees passim

oo vs cndsecdendedieuesetececes 19

42 U.S.C. § 2000e et seg. ............. 000 ee passim

TB UBD. BERIOOGRD onc cccccccccccececcccoces 19

vii

29 C.F.R. 91601.12(aX3) ... 2. cece eee eee eee eeee 19

29 C.F.R. 91626.8(aX3) 2... cece ee eee eee eens 19

Fed. R. Civ. P. Ta) .. 0. cece cece cere renee eens 13

Fed. R. Civ. P. 7(c) . 0... ccc eer e cree eee eeeeeeees 11

Fed. R. Civ. P. 8(aX(2) ... 6 ee eee eee renee 4,5, 11, 22

Fed. R. Civ. P. 8(b) 0... eee eee eee eee rete eens 11

Fed. R. Civ. P. 8(e) 1)... 6. cece ee eee eee eeees 12

Fed. R. Civ. P. 8(f) 21... ccc cece eee eee e ee eeneees 12

Fed. R. Civ. P.9 2... cece cece eee eer eeceneees 13

Fed. R. Civ. P. 12(bX6)....-.-++-++ 4, 14, 15, 16, 17

Fed. R. Civ. P. 12(e) ...... cece e cece reece eeeeees 13

Fed. R. Civ. P. 56.0... ccc cee cece cree ee eeeeeee 14

Fed. R. Civ. P. 84 00... cece cece eee eer eeeeeereee 4

Fed. R. Civ. P., Form 9... . 6... eee ce ce eeeeeres 5, 11

Secondary Sources

CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE

(2d ed. 1990) ......- cee ee eee eeeeee 5, 8, 12, 22

Charles Clark, The Handmaid of Justice,

23 WASH. U.L.Q. 297 (1938)

Richard L. Marcus, The Revival of Fact

Pleading Under ihe Federal Rules of

Civil Procedure, 86 COLUM. L. REV.

433 (1986)

Judge Patricia M. Wald, Summary

Judgment at Sixty, 76 Tex. L. REV.

1897 (1998)

INTEREST OF AMICI CURIAE’

NELA, a voluntary membership organization of more

than 3000 attorneys nationwide, is the country’s only

professional membership organization of lawyers who

regularly represent workers in employment, labor, and

civil rights disputes. As part of its advocacy efforts,

NELA regularly supports litigation affecting the rights

of individuals in the workplace. NELA has filed numer-

ous amicus curiae briefs before the U.S. Supreme Court

and the federal appellate and district courts regarding

the proper interpretation and application of employment

discrimination laws to ensure that those laws are fully

enforced and that the rights of workers are fully pro-

tected. Some of the more recent cases before this Court

include: Wright v. Universal Maritime Service Corp., 525

U.S. 70 (1998); Faragher v. City of Boca Raton, 524 U.S.

775 (1998); Burlington Industries v. Ellerth, 524 U.S.

742 (1998); Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000); Circuit City Stores, Inc. v. Adams,

121 S. Ct. 302 (2001).

AARP is a nonprofit membership organization serving

more than thirty-five million people age 50 and older

that is dedicated to addressing the needs and interests

of older Americans. One of AARP’s primary objectives

is to strive to achieve dignity and equality in the work-

place through positive attitudes, practices, and policies

towards employment and retirement. In pursuit of this

' The position amici take has not been approved or financed

by petitioner or his counsel. No counsel for any party had any

role in authoring this brief. Written consents of both parties

have been filed with the Clerk of the Court pursuant to

Supreme Court Rule 37.3(a).

objective, AARP has since 1985 filed more than 200

amicus briefs before this Court and federal appellate and

district courts. Nearly 40% of all AARP members—14

million people—are employed. They have strong inter-

ests in the outcome of this case, which will affect their

rights under the Age Discrimination in Employment Act

and Title VII of the Civil Rights Act of 1964. In addition,

because older people have a higher incidence of disabili-

ties than the overall population, significant numbers of

AARP members rely on laws based on Title VII, such as

Title I of the Americans with Disabilities Act, to address

‘usability-based discrimination in the workplace.

The American Civil Liberties Union (ACLU) is a na-

tionwide, nonprofit, nonpartisan organization with near-

ly 300,000 members dedicated to the principles of liberty

and equality embodied in the Constitution and this na-

tion’s civil rights laws. Over the last four decades, the

ACLU has appeared before this Court in numerous cases

involving the proper interpretation of those civil rights

laws, both as direct counsel and as amicus curiae. Ad-

ditionally, the ACLU has repeatedly opposed a height-

ened pleading standard in civil rights cases because of

the impediment it imposes on civil rights plaintiffs seek-

ing meaningful access to the courts. This case involves

the imposition of a heightened pleading standard on a

federal complaint alleging employment discrimination

based on age and national origin. Its proper resolution is

therefore a matter of significant concern to the ACLU

and its members throughout the country.

The National Partnership for Women & Families (Na-

tional Partnership) is a national advocacy organization

that develops and promotes policies to help women

achieve equal opportunity, quality health care, and eco-

nomic security for themselves and their families. Since

its founding in 1971, the National Partnership (formerly

the Women’s Legal Defense Fund) has worked to ad-

ual employment opportunities by monitoring

amaed EEO callenemael challenging employment

discrimination in the courts, and leading efforts to pro-

mote employment policies such as the Family and Med-

ical Leave Act and the Pregnancy Discrimination Act.

The National Women’s Law Center (“NWLC") is a non-

profit, legal advocacy organization dedicated to the ad-

vancement and protection of women’s rights and the

corresponding elimination of sex discrimination from all

facets of American life. Since 1972, NWLC has worked

to secure equal opportunity for women in the workplace,

including through the full enforcement of Title VII of the

Civil Rights Act of 1964 as amended. NWLC has partici-

pated as amicus curiae in numerous cases involving

employment law and civil rights issues.

NOW Legal Defense and Education Fund (NOW Legal

Defense) is a leading national nonprofit civil rights or-

ganization that has used the power of the law to oe

and defend women’s rights for over thirty years. NO

Legal Defense has appeared before this Court in a

employment discrimination cases, including Farag ru.

City of Boca Raton, 524 U.S. 742 (1998), Burlington

Industries v. Ellerth, 524 U.S. 742 (1998), and Reeves v.

Sanderson Plumbing Products, 530 U.S. 133 erm

NOW Legal Defense is particularly concerned that t .

heightened pleading standard required by the court ws

appeals below will frustrate plaintiffs meaningful acce ,

to the federal courts in future employment discrimina

tion cases.

SUMMARY OF ARGUMENT

The Second Circuit’s decision squares neither with the

plain terms of the Federal Rules of Civil Procedure, nor

with the spirit of substantial justice that animates them.

The Federal Rules decreed a clean break with code

pleading in favor of notice pleading, epitomized by Rule

8(a2) and reflected in other provisions in the Federal

Rules. This Court’s interpretation of Rule 12(b)\6) in

Conley v. Gibson, 355 U.S. 41 (1957), backed by virtually

every Court of Appeals, mandates simplicity in pleading

employment discrimination cases. The heightened plead-

ing requirement suggested by the Second Circuit in Title

VII and ADEA cases is unnecessary and inequitable: em-

ployers have already viewed the merits through statu-

torily-mandated EEOC charge processing procedures

and they command the key facts. Nor should employees

be required to plead particular legal theories (such as

pretext) in the complaint because the facts may ulti-

mately lend themselves to alternative theories of proof.

ARGUMENT

Federal Rule of Civil Procedure 84 commends simple

form complaints to courts and practitioners, “intended to

indicate the simplicity and brevity of statement which

the rules contemplate.” By way of example, the model

complaint for negligence omits reference to the common

law elements of proof for that cause of action:

1. Allegation of jurisdiction.

2. On June 1, 1936, in a public highway called

Boylston Street in Boston, Massachusetts, defen-

dant negligently drove a motor vehicle against

plaintiff who was then crossing said highway.

3. As a result plaintiff was thrown down and

had his leg broken and was otherwise injured,

was prevented from transacting his business,

suffered great pain of body and mind, and in-

curred expenses for medical attention and hospi-

talization in the sum of one thousand dollars.

Wherefore plaintiff demands judgment against

defendant in the sum of dollars and costs.

Fed. R. Civ. P., Form 9. Instead of a detailed recitation

of causation and the tortfeasor’s duty of due care, the

model complaint rests on a bare “conclusory” allegation

of negligence.

The petitioner, with the brevity exemplified by this

form, alleged that respondent Sorema N.A. fired him on

account of national origin and age, in violation of Title

VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. and

the Age Discrimination in Employment Act, 29 U.S.C.

§ 621 et seq. (“ADEA”). This Court must decide whether

the petitioner’s claim should have expired solely owing

to the terseness of his complaint.

The framers of the Federal Rules elected substantial

justice and the litigation of merits over the fusty formal-

ism of code pleading. The Rules, departing from pre-

existing practice, no longer force pleadings to carry the

entire weight of stating, narrowing and resolving fact

issues in a case. 5 CHARLES ALAN WRIGHT & ARTHUR

R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1202

at 68-69 (2d ed. 1990) (hereinafter “WRIGHT & MILLER”).

Instead, the Rules afford parties pre-trial conferences,

discovery, summary judgment and (ultimately) trials to

winnow down fact issues. In particular, Federal Rule of

Civil Procedure 8(a(2) commands that a “pleading .. .

shall contain . . . a short and plain statement of the

claim showing that the pleader is entitled to relief. . . .”

Yet the appellate court’s decision below retreats to the

era of code pleading, demanding that an employment

discrimination plaintiff plead both facts and a legal

theory before the privilege of litigating. The court spec-

ified that a plaintiff must allege facts establishing a

prima facie case under the framework of McDonnell

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

Douglas”). McDonnell Douglas, however, set out a frame-

work for what must be proved at trial. The Court of

Appeals’ extension of McDonnell Douglas is so at odds

with the framework of the Federal Rules, and this

Court’s definitive holdings in Conley v. Gibson, 355 U.S.

41 (1957) and Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507 U.S. 163 (1993),

that it cannot stand. Amici request that the Court re-

verse the decision below and remand for further proceed-

ings.

I. THE FEDERAL RULES DISFAVOR COURT-IM-

POSED, HEIGHTENED PLEADING REQUIRE-

MENTS

A. The Federal Rules Decisively Rejected Code

Pleading in Favor of Notice Pleading

A reexamination of the requirement of “fact” pleading

was an important aspect of federal courts’ procedural

reforms during the 1930s and 1940s that led to the

current Federal Rules of Civil Procedure. Professor

Richard L. Marcus summarized the background law as

thus:

Common law pleading, which was originally oral,

evolved over centuries into an increasingly de-

emai —

tailed written exercise. During the same period,

the forms of action were developing, and their

limitations reinforced pleading difficulties. In

order to prevail, the common law plaintiff had to

choose the correct form of action. He and his

lawyer then embarked on an exchange of plead-

ings with the defendant that was designed ulti-

mately to produce a single issue for resolution by

a judge or trial by jury, with trial itself as some-

thing of an afterthought to the pleading process.

Richard L. Marcus, The Revival of Fact Pleading Under

the Federal Rules of Civil Procedure, 86 COLUM. L. REV.

433, 437 (1986) (footnotes omitted). The framers of the

Federal Rules, most notably Dean (later Second Circuit

Judge) Charles Clark, advocated a procedural order priv-

ileging discovery and trial on the merits over pleading

practice. See, e.g., Charles Clark, The Handmaid of Jus-

tice, 23 WASH. U.L.Q. 297, 318-19 (1938) (“in the case of

a real dispute, there is no substitute anywhere for a

trial”).

This Court celebrated the departure from pre-Rules

practice:

Under the prior federal practice, the pre-trial

functions c! notice-giving issue-formulation and

fact-revelation were performed primarily and

inadequately by the pleadings. Inquiry into the

issues and the facts before trial was narrowly

confined and was often cumbersome in method.

The new rules, however, restrict the pleadings to

the task of general notice-giving and invest the

deposition-discovery process with a vital role in

the preparation for trial. The various instru-

ments of discovery now serve (1) as a device,

along with the pre-trial hearing under Rule 16,

to narrow and clarify the basic issues between

the parties, and (2) as a device for ascertaining

the facts, or information as to the existence or

whereabouts of facts, relative to * hose issues.

Hickman v. Taylor, 329 U.S. 495, 500-01 (1947) (foot-

notes omitted).

The centerpiece of this reform was Rule 8(a)(2) which

states that “[a] pleading .. . shall contain... a short and

plain statement of the claim showing that the pleader is

entitled to relief. . . .” 5 WRIGHT & MILLER, supra, § 1202

at 68 (“Rule 8 is the keystone of the system of pleading

embodied in the federal rules”); Judge Patricia M. Wald,

Summary Judgment at Sixty, 76 Tex. L. REV. 1897, 1917

(1998) (describing Rule 8 as the “jewel in the crown of

the Federal Rules”).

This Court’s preeminent interpretation of Rule 8(a)2)

remains Conley v. Gibson, 355 U.S. 41 (1957). African-

American railway workers alleged that their union

breached its duty of fair representation under the Rail-

way Labor Act when it allowed them to be replaced or

demoted in favor of white employees. Conley rejected the

union’s argument that the complaint lacked sufficient

detail to support the general allegations of discrimina-

tion:

The decisive answer to this is that the Federal

Rules of Civil Procedure do not require a claim-

ant 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. The illustrative forms ap-

+ ween ere — -

pended to the Rules plainly demonstrate this.

Such simplified “notice pleading” is made possi-

ble by the liberal opportunity 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. [Jd. at 47-48,

footnote omitted. ]

This Court continues to hold that under this rule, a

party has “no duty to set out all of the relevant facts in

his complaint.” Atchison Topeka and Santa Fe Ry. Co. v.

Buell, 480 U.S. 557, 568 n.15 (1987).

This Court has also rejected judicial ingenuity directed

against the notice pleading standard. In Leatherman v.

Tarrant County Narcotics Intelligence & Coordination

Unit, 507 U.S. 163 (1993), the Court unanimously held

that federal courts may not apply a pleading standard

“more stringent than the usual pleading requirements of

Rule 8(a) of the Federal Rules of Civil Procedure in civil

rights cases alleging municipal liability” under section

1983. Leatherman noted that “the Federal Rules . -.

address in Rule 9(b) the need for greater particularity in

pleading certain actions, but do not include +. any

reference to complaints alleging municipal liability un-

der § 1983. Expressio unius est exclusio alterius. Id. at

168. The Court noted that regardless of whether height-

ened pleading standards might be desirable, such a re-

sult “must be obtained by the process of amending the

Federal Rules, and not by judicial interpretation.” Jd.

Courts, in sum, must honor Rule 8(a)(2) in substance

and not innovate for the sake of docket clearing.

Judge Richard A. Posner in Jackson v. Marion County,

66 F.3d 151, 153 (7th Cir. 1995), so affirmed in a civil

rights case where a complaint was dismissed

specificity: for lack of

(Leatherman) rejects . . . the imposition of

heightened pleading menteaneaie te cases

governed by the Federal Rules of Civil Procedure

unless required by the rules themselves, which is

to say by Rule 9. The Court did leave open the

possibility that complaints against defendants

who might have a defense of immunity (which

municipalities do not . . .) may have to be

pleaded with particularity. The immunity is

against being sued as well as against having to

pay damages and would be undermined if the

defendant had to engage in pretrial discovery in

order to find out exactly what wrong the plaintiff

was charging him with. So Rule 9 may not be

exhaustive. But apart from the rule itself and a

tiny handful of arguably appropriate judicial

supplements to it, a plaintiff in a suit in federal

court need not plead facts; he can plead conclu-

sions. . . . The pressure of heavy caseloads in the

district courts .. . has placed strains on the

Federal Rules of Civil Procedure. Those rules,

drafted at a time when the federal courts were

less busy, may . . . not have kept up with the

growth in federal litigation. Increasingly the

rules are bent—Rule 56 to allow cases that form-

erly would have gone to trial to be disposed of on

summary judgment, Rules 8 and 12 to allow

cases that formerly would have gotten at least as

far as summary judgment to be decided on the

pleadings. . . . Most judges are pragmatists, and

will allow rules to be bent when the pressure is

great. But “bent” does not mean “broken.” . . .

Leatherman makes clear that the federal courts

are not to interpolate a requirement of fact

pleading into the federal rules.

Thus, “‘I was turned down for a job because of my race’

is all a complaint has to say” to satisfy Rule 8(aX2) in a

Title VII action. Bennett v. Schmidt, 153 F.3d 516, 518

(7th Cir. 1998).

B. The Cumulative Force of the Federal Rules Ad-

vantages Economical Pleading

In addition to Rule 8(aX2) and Form 9 of Rule 84, both

noted above, a walking tour of other sections of the

Federal Rules reinforces the mandate of notice pleading.

1. Rule 7(c): “Demurrers, pleas, and exceptions for

insufficiency of a pleading shall not be used.” A compan-

ion to Rule 8, this section abolished formal common law

challenges to the insufficiency of pleadings. This section

advanced the framers’ common goal of shifting the liti-

gants’ battle from the pleadings to the merits. The fram-

ers provided an alternative to such practice in the face

of an unclear pleading under Rule 8(b): when the defen-

dant cannot adequately affirm or deny allegations, it

“shall so state and this has the effect of a denial.” The

defendant thus suffers no prejudice at the pleading

stage and may conduct discovery to clarify the claim.

seldom noted today, Rule 7(c) was a sensation

when first adopted. “Whether Rule 7(c) would succeed in

its objective was a matter of considerable doubt at the

time of the promulgation and adoption of the federal

rules . . . . Despite the clarity of this policy, it took a

number of years to persuade the bench and bar that

Rule 7(c) means what it says, and that demurrers are

not to be entertained in actions in the federal courts.” 5

WRIGHT & MILLER, supra, § 1196 at 556-58.

2. Rule 8(e)(1): “Each averment of a pleading shall

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

pleading or motions are required.” Courts interpret this

provision, in the context of employment discrimination

cases, to require a statement of the basis of discrimina-

tion, and no more. See, e.g., EEOC v. J.H. Routh Packing

Co., 246 F.3d 850, 853 (6th Cir. 2001) (“{aJn accusation

of discrimination on the basis of a particular impairment

provides the defendant with sufficient notice to begin its

defense against the claim”); Bennett, 153 F.3d at 518 (“a

requirement that complaints contain all of the evidence

needed to prevail at trial, or at least all the facts that

would have been required under the pre-1938 system of

code pleading, would induce plaintiffs to violate Rule 8(e)

. . . by larding their complaints with facts and legal

theories”).

3. Rule 8(f): “All pleadings shall be so construed as

to do substantial justice.” As a leading treatise notes,

“This provision is not simply a precatory statement but

reflects one of the basic philosophies of practice under

the federal rules.” 5 WRIGHT & MILLER, supra, § 1286 at

546-48. This Court cited this section in Conley, holding

that “[flollowing the simple guide of Rule 8(f).. . , we

have no doubt that petitioners’ complaint adequately set

forth a claim and gave the respondents fair notice of its

basis.” Conley, 355 U.S. at 48. Courts of appeals also cite

this section to construe Title VII, ADEA and related

anti-discrimination complaints. See, e.g., Sparrow v.

United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir.

2000); Yamaguchi v. U.S. Dept. of the Air Force, 109 F.3d

1475, 1480-81 (9th Cir. 1997).

4. Rule 9(b)-(h): Rule 9 specifies particular allega-

tions that must be plead with specificity. This Court in

Leatherman noted that “perhaps if Rules 8 and 9 were

rewritten today, claims against municipalities under

§ 1983 might be subjected to the added specificity re-

quirement of Rule 9(b).” Leatherman, 507 U.S. at 168. It

held, though, that further exceptions to Rule 8 not al-

ready expressed in Rule 8 may only be created through

the rulemaking process. Id.

5. Rule 12(e): “If a pleading to which a responsive

pleading is permitted is so vague or ambiguous that a

party cannot reasonably be required to frame a respon-

sive pleading, the party may move for a more definite

statement before interposing a responsive pleading.”

Here lies the tool that most nearly meets the needs of

courts and advocates who find a Title VII or ADEA

pleading too obscure to comprehend or answer. See

Marcus, supra, 86 COLUM. L. REV. at 452 (“[p)roviding

notice would seem, after all, to be the function of a

motion for a more definite statement under Rule 12(e)”).

This Court recently so noted in a decision rejecting a

heightened burden of proof for “unconstitutional motiva-

tion” cases brought against public officials. Crawford-El

v. Britton, 523 U.S. 574, 597 (1998) (noting that the

district court may order a reply to a defendants’ answer

under Rule 7(a) or a more definite statement of the

plaintiff's claim under Rule 12(e)). As the Seventh Cir-

cuit noted in an employment case, “the [employer] could

have requested a more definite statement under Rule

12(e) if [it] believed that it needed more information

about [plaintiff's] allegations.” Scott v. City of Chicago,

195 F.3d 950, 952 (7th Cir. 1999). Sorema, N.A., did not

file such a motion below.

6. Rule 56: The complement to judicial restraint on

Rule 12(b\6) motions to dismiss is Rule 56 summary

judgment. As this Court noted in Celotex Corp. uv.

Catrett, 477 U.S. 317, 327 (1986):

Before the shift to “notice pleading” accom-

plished by the Federal Rules, motions to dismiss

a complaint or to strike a defense were the

principal tools by which factually insufficient

claims or defenses could be isolated and pre-

vented from going to trial with the attendant

unwarranted consumption of public and private

resources. But with the advent of “notice plead-

ing,” the motion to dismiss seldom fulfills this

function any more, and its place has been taken

by the motion for summary judgment.

Summary judgment takes place only after the parties

have had an opportunity for full discovery. Jd. at 326

(citing Rule 56(f)). And in contrast to the pleading stage,

summary judgment contemplates a review of the facts.

Lujan v. National Wildlife Federation, 497 U.S. 871, 889

(1990) (noting that Rule 8(a), unlike Rule 56, “presumes

that general ailegations embrace those specific facts that

are necessary to support the claim”). An attack on the

plaintiff's prima facie case in an employment discrimina-

tion action may suitably occur, if at all, at the summary

judgment stage after a sufficient opportunity for discov-

ery.

C. Rule 12(b)(6) Does Not Allow Dismissal of a Com-

plaint Simply Because It Pleads Discrimination

ina Conclusory Fashion

The role of Rule 12(b\(6) in a notice pleading regime

found definition in Conley. The union defendant argued

that plaintiffs’ complaint failed to state a claim. But this

Court held that the allegations were sufficient:

In appraising the sufficiency of the complaint we

follow, of course, the accepted rule that a com-

plaint 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. Here,

the complaint alleged, in part, that petitioners

were discharged wrongfully by the Railroad and

that the Union, acting according to plan, refused

to protect their jobs as it did those of white

employees or to help them with their grievances

all because they were Negroes. If these alle-

gations are proven there has been a manifest

breach of the Union’s statutory duty to represent

fairly and without hostile discrimination all of

the employees in the bargaining unit.

Id. at 45-46, footnote omitted. Some two decades later,

in Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), the

Court reaffirmed the restrictive Conley standard: “[t]he

issue is not whether a plaintiff will ultimately prevail

but whether the claimant is entitled to offer evidence to

support the claims.”

Conley initiated a continuous line of authority support-

ing an uncomplicated standard of pleading and strict

enforcement of Rule 12(b\(6).? The Court has applied

2 See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562, 565

(2000) (plaintiff stated claim of equal protection; complaint

that could “fairly be construed as alleging that the Village

intentionally demanded a 33-foot easement as a condition of

(continued...)

these precepts specifically in the employment discrimi-

nation arena. In McDonald v. Santa Fe Trail Transp.

Co., 427 U.S. 273, 283 n.11 (1976), this Court rejected an

employer’s argument under Title VII that plaintiffs

alleging racial discrimination “were required to plead

with ‘particularity’ the degree of similarity between their

culpability in the alleged theft and the involvement of

the favored coemployee, Jackson.” Hishon v. King &

Spalding, 467 U.S. 69, 73 (1986), another Title VII case

reversed a Rule 12(b)(6) dismissal and reaffirmed that

[a] court may dismiss a complaint only if it is clear that

no relief could be granted under any set of facts that

could be proved consistent with the allegations.” There

is no hint in any of this Court’s decisions requiring

particularized facts in Title VII or ADEA pleadings in

order for them to survive a Rule 12(b)(6) motion.

The Courts of Appeals regularly cite to Conley to

reverse Rule 12(b)(6) dismissals of employment discrimi-

(...continued)

connecting her property to the municipal water supply where

the Village required only a 15-foot easement from other sim-

ilarly situated property owners,” that “the Village’s demand

was ‘irrational and wholly arbitrary’ and that the Village

ultimately connected her property after receiving a clearly

adequate 15-foot easement”); Brower v. County of Inyo, 489

US. 593, 597 (1989) (in Fourth Amendment case, reversing

dismissal of complaint where “Petitioners have alleged the

establishment of a roadblock crossing both lanes of the high-

way”); Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S.

738, 746 (1976) (reversing dismissal of antitrust complaint;

dismissals prior to giving the plaintiff ample opportunity for

discovery should be granted very sparingly”); Cruz v. Beto

405 U.S. 319, 322 (1972) (reversing dismissal of prisoner’s

religious discrimination complaint).

nation complaints. Most courts hold that plaintiffs need

not have alleged particular facts to establish a prima

facie case. See, e.g., Weston v. Pennsylvania, 251 F.3d

420, 428-29 (3d Cir. 2001) (citing Conley, court finds that

bare allegation of hostile work environment was suffi-

cient to meet Rule 8 pleading requirements and survive

dismissal for failure to state a claim); J.H. Routh Pack-

ing Co., 246 F.3d at 851 (“The Federal Rules of Civil

Procedure provide for a liberal system of notice plead-

ing”); Sparrow, 216 F.3d at 1114 (“The grounds for the

district court’s dismissal of Sparrow's complaint are

inconsistent with Rule 8 and Conley”); Bennett, 153 F.3d

at 518 (“[t]o the extent the district court required

plaintiff to include in the complaint allegations sufficient

(if proved) to prevail at trial, the court imposed a re-

quirement of fact-pleading”); Yamaguchi, 109 F.3d at

1480-81 (“these liberal pleading rules only require that

the averments of the complaint sufficiently establish a

basis for judgment against the defendant”); Ring v. First

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

(“the [McDonnell Douglas] prima facie case under this

analysis is an evidentiary standard—it defines the quan-

tum of proof plaintiff must present to create a rebuttable

presumption of discrimination that shifts the burden to

defendant to articulate some legitimate, nondiscrimina-

tory reason for its conduct,” but “is not a proper measure

of whether a complaint fails to state a claim”).

The Second Circuit appears to be the outlier, as the

present case demonstrates. Recently, in Gregory v. Daly,

243 F.3d 687 (2d Cir. 2001), the court reversed dis-

missal of a Title VII complaint under Rule 12(b)(6). But

while citing Conley, it reaffirmed that a plaintiff must

set forth enough facts in her complaint to set forth a

prima facie claim. It held that “a simple declaration that

defendant's conduct violated the ultimate legal standard

at issue (e.g., it was ‘because of sex’ or ‘severe or perva-

sive’) does not suffice” to survive a motion to dismiss. Jd.

at 692. The lower court’s demand that a plaintiff cite

facts in support of each element of McDonnell Douglas

departs from the settled standard of Conley by requiring

initial pleading of facts and a legal theory.

Il. HEIGHTENED PLEADING RULES CANNOT BE

JUSTIFIED IN EMPLOYMENT

CASES DISCRIMINATION

Pleading requirements are somewhat elastic, and this

Court has recognized that trial courts may enjoy a lim-

ited discretion to insist that pleadings contain some ad-

ditional detail in exceptionally complex cases, such as

antitrust conspiracies. Associated General Contractors of

California, Inc. v. California State Council of Carpenters .

458 U.S. 519, 528 n.17 (1983) (in a Clayton Act conspir-

acy case, this Court observed that “[clertainly in a case

of this magnitude, a district court must retain the power

to insist upon some specificity in pleading before allow-

ing a potentially massive factual controversy to pro-

ceed”). But see McLain v. Real Estate Bd. of New Or-

leans, Inc., 444 U.S. 232, 248 (1980) (Conley standard

“applies with no less force to a Sherman Act claim”).

Whatever scale of complexity may apply to civil cases,

however, individual disparate treatment cases under

Title VII, ADEA or related statutes—important though

they may be—are scarcely the toughest. Hence, courts’

limited discretion to require more detailed pleading has

never been extended to employment discrimination

cases, nor should it be.

There is no justification to single out employment

discrimination cases for heightened pleading require-

ments. If anything, notice pleading makes especial sense

in these cases: employers have already viewed the mer-

its through statutorily-mandated procedures and usually

have command of the key facts.* Under these circum-

stances, requiring the plaintiff to produce even more

facts at the pleading stage is inequitable. And contrary

to the Second Circuit’s holding below, a plaintiff should

not be obliged to commit to a particular legal theory of

discrimination (such as pretext) at the pleading stage.

A. The Employer Already Has Notice of the Claim

Through the EEOC Charge

Under Title VII, as a precondition to litigation, a

“charge” must be filed with the EEOC by a person

aggrieved by an unlawful employment practice. The

charge “shall be in writing under oath or affirmation and

shall contain such information and be in such form as

the Commission requires.” 42 U.S.C. § 2000e-5(b). (Co-

incidentally, the Court is presently reviewing another

case under this section. Edelman v. Lynchberg College,

121 S. Ct. 2547 (2001).) The EEOC requires a charge to

include a “{a] clear and concise statement of the facts,

including pertinent dates, constituting the alleged un-

lawful employment practices.” 29 C.F.R. 41601.12(aX3).

The ADEA does not precisely mirror the Title VII charge

filing requirements, 29 U.S.C. § 626(d), but the EEOC

3 As discussed more fully below, these include the complain-

ant’s filing of a charge, whose terms define the contours of the

claims that later may be brought in federal court; investiga-

tion of the charge by EEOC, including presentation of the

charge to the employer; and in some instances, conciliation

between employer and employee.

nevertheless imposes the same “clear and concise” stan-

dard on ADEA charges. 29 C.F.R. 91626.8(aX3).

Thus the employer obtains sufficient, formal notice of

the employee’s particular claims before litigation begins.

See, e.g., White v. New Hampshire Dept. of Corrections,

221 F.3d 254, 263 (1st Cir. 2000) (“the administrative

charge affords formal notice to the employer and pro-

spective defendant of the charges that have been made

against it”) (internal quotation omitted); Cable v. Ivy

Tech State College, 200 F.3d 467, 477 (7th Cir. 1999)

(“[a] claim falls within the scope of the EEOC complaint

if it is like or reasonably related to the charges in the

EEOC complaint and if it reasonably could have devel-

oped from the EEOC’s investigation of the charges before

it”) (internal quotation omitted). Indeed, an employee

risks waiver of any claims not specifically included in a

charge. See, e.g., Chanda v. Engelhard/ICC, 234 F.3d

1219, 1224-25 (11th Cir. 2000) (failure to check national

origin box on EEOC charge form waived such claim);

Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497,

500 (7th Cir. 1994) (claim not raised in EEOC charges is

barred from being raised in district court).

Thus, even before the complaint is filed, an employer

is already on notice about the dimensions of the em-

ployee’s claim and the facts he or she asserts. It is dif-

ficult to conceive of any prejudice suffered by an em-

ployer that has already viewed the employee’s adminis-

trative charge if an employee does not also detail those

facts in her complaint.

B. In Employment Discrimination Cases, Employ-

ers Control the Key Facts

Notice pleading in employment discrimination cases

dovetails with the insight that the employer ordinarily

controls information critical to a plaintiff's claim. See,

e.g., Bell v. Birmingham Linen Service, 715 F.2d 1552,

1556 (11th Cir. 1983) (McDonnell Douglas-Burdine

method of establishing a prima facie case addresses cir-

cumstance that “employer enjoys greater access to proof

of reasons for its own employment decisions”); Loeb v.

Textron, 600 F.2d 1003, 1014 (1st Cir. 1979) (“the em-

ployer has the best access to the reasons that prompted

him to fire, reject, discipline or refuse to promote the

complainant”). The employer has custody of personnel

files; data of the gender, race and age composition of the

workforce; comparative information about similarly

situated employees and like information—the building

blocks of any disparate treatment claim. Demanding

that plaintiff step up to the plate through her pleading,

without a period of discovery of such information, up-

ends the reforms intended by the Federal Rules.

C. The Decision Below Requires Premature Plead-

ing of Legal Theories

Another holding implicit in the Second Circuit's de-

cision is that plaintiffs in employment discrimination

cases must spell out their legal theory (here, the pretext

or indirect method), as well as their facts, for defendants

in advance. This again misapprehends the role of notice

pleading under the Federal Rules. “The courts keep

reminding plaintiffs that they don’t to have to file long

complaints, don’t have to plead facts, don’t have to plead

legal theories.” Kirksey v. R.J. Reynolds Tobacco Co. , 168

F.3d 1039, 1041 (7th Cir. 1999). See also Evans v. McDon-

ald’s Corp., 936 F.2d 1087, 1091 (10th Cir. 1991) (Rule

8(aX(2) allows “the defendant fair notice of the claims

against him without requiring the plaintiff to have every

legal theory or fact developed in detail before the com-

plaint is filed and the parties have opportunity for dis-

covery”); McCalden v. California Library Assoc., 955

F.2d 1214, 1223 (9th Cir. 1990) (plaintiff needn’t plead

legal theories). The Second Circuit’s approach harkens

back to the discredited “theory of the pleadings” doc-

trine, which demanded that there be no departure from

a theory as originally plead in a complaint. 5 WRIGHT &

MILLER, supra, § 1219 at 188-89.

An employment discrimination plaintiff is not, of

course, limited to the pretext method of proof ratified by

this Court in McDonnell Douglas. Since McDonnell

Douglas, the Court has held consistently that the Mc-

Donnell Douglas test forms just one model of a prima

facie case, not an immutable scheme. See International

Brotherhood of Teamsters v. United States, 431 U.S. 324,

358 (1977) (improper for defendants to argue that

McDonnell Douglas pattern was the only means whereby

the plaintiff could establish a prima facie case because

“{ojur decision in that case . . . did not purport to create

an inflexible formulation”); Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 577 (1978) (“[t]he method sug-

gested in McDonnell Douglas for pursuing [the disparate

treatment] inquiry . . . was never intended to be rigid,

mechanized, or ritualistic”). Other methods sanctioned

by this Court include disparate impact (Watson v. Fort

Worth Bank & Trust Co., 478 U.S. 977 (1988)), the so-

called direct evidence method (Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989)) and pattern-or-practice

(Franks v. Bowman Transp. Co., 424 U.S. 747 (1976)).

The plaintiff should not be obliged to commit herself to

any one theory at the pleadings stage prior to appropri-

ate discovery.

CONCLUSION

For the foregoing reasons, amici respectfully request

that the judgment of the United States Court of Appeals

for the Second Circuit be reversed.

Respectfully submitted,

PAUL W. MOLLICA

Counsel of Record

MEITES, MULDER, BURGER

& MOLLICA

208 South LaSalle Street

Suite 1410

Chicago, IL 60604

(312) 263-0272

PAULA A. BRANTNER

Senior Staff Attorney

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

44 Montgomery Street

Suite 2080

San Francisco, CA 94107

(415) 296-7629

DANIEL B. KOHRMAN