# Amicus Curiae Brief — Swierkiewicz v. Sorema NA

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 506

## Text

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,
v.

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

ee

i

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

iv

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

Vv
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)

1

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).

2

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

3

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.

4

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.

5

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 .. .

6

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 —

7

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

10

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.” . . .

11

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

12

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).

13

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.

14

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

15

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...)

16

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).

17

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

18

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-

19

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.

20

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.

21

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)).

23

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

THOMAS W. OSBORNE
AARP FOUNDATION LITIGATION

24

MELVIN RADOWITZ
AARP

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Washington, DC 20049
(202) 434-2060

STEVEN R. SHAPIRO

LENORA M. LAPIDUS

JAMES D. ESSEKS

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

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(212) 549-2500

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NATIONAL PARTNERSHIP FOR
WOMEN & FAMILIES

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NATIONAL WOMEN’S LAW CENTER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0472%3A11. Public record. Not legal advice.