Amicus Curiae Brief — Swierkiewicz v. Sorema NA

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IN THE

Supreme Court of the United States

AKOS SWIERKIEWICZ,

Petitioner,

SOREMA, N.A.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE

CENTER FOR INDIVIDUAL FREEDOM

IN SUPPORT OF RESPONDENT

LINDA VAN WINKLE DEACON

JULIE ARIAS YOUNG*

*Counsel of Record

BATE, PETERSON, DEACON,

ZINN & YOUNG LLP

888 S. Figueroa Street

15th Floor

Los Angeles, CA 90017

(213) 362-1860

Counsel for Amicus Curiae

nt ae ee ae A fmt nt

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

TABLE OF CONTENTS

Pages

ee er Ge i cericccnevscesnniscenemessneysersetisingitniaiseiailin i

Cs Ee Ce CD ccretntesttticnnmnnninninninn ii-v

INTEREST OF AMICUS CURIAE.............sccssscsssssssssesscesnseess l

SUMMARY OF ARGUMENT .....:ccscccssscsssscescessccscsccesscsesseeses 2

FE disthitacincececerresaiititiiininenincbinadiiindinindmaaiaibeizinn 3

I. PETITIONER'S CONCEPT OF NOTICE PLEADING

RENDERS RULE 12(B)(6) A NULLITY AND

MISINTERPRETS THIS COURT'S PRIOR RULINGS............. 3

II. THERE IS NOTHING UNIQUE ABOUT TITLE VII AND

ADEA PLAINTIFFS THAT SHOULD EXEMPT THEIR

CLAIMS FROM RULE 12(B)(6) ANALYSIS. .............000005 16

III. THE FEDERAL RULES SHOULD BE CONSTRUED

WITH AMPLE REGARD FOR THE DUE PROCESS

CONCERNS RAISED BY IMPOSING LITIGATION

COSTS ON DEFENDANTS WITHOUT ADEQUATE

PLEADING OF A VALID CLAIM ..........ccsceseeeeseeseeeeseeeeeees 19

IV. THE SECOND CIRCUIT DID NOT REQUIRE A

HEIGHTENED PLEADING STANDARD IN

EVALUATING PETITIONER'S DISCRIMINATORY

III cc cinsciststinsinilibtanthiccsscsetenniiniancinlanbeiibane 24

Cee Db cccncsinncntieensecnscennnntnsanninenetsiscionsanennetnininnanengti 28

TABLE OF AUTHORITIES

Pages

Cases

Adreani v. First Colonial Bankshares Corp., 154

I: I sit sareeicntsiensienatnarinniecuagsanant 27

Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998) «00000000000... 10

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

IPT cheiiidlsciaaaasdasidiinitteastabnananiicbedtadneeapinnenteoyenienendsces 20-21

Conley v. Gibson, 355 U.S. 41 (1957) ......cccccccseseeseceees passim

Dep't of Air Force v. Rose, 425 U.S. 352 (1976)........... 17-18

Duncan v. Walker, 533 U.S. 167 (2001).........csceecccesseeeeeeeees 5

EEOC v. Aon Consulting, Inc., 149 F. Supp. 2d 601

ia raat ntacnccnmsamcens 18

EEOC v. Associated Dry Goods Corp., 449 U.S. 590

ITs icisiidisnscecieceadinleunsieimiastiapiapianinnnetitninnionnaticbeepascenees 17, 18

Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973)... 25

Griggs v. Duke Power Co., 401 U.S. 424 (1971) wo... 14

McDonnell Douglas Corp. v. Green, 411 U.S. 792

SI iaia li attittaciniialadiecitieitandiiediniehaninieeahenesowncennesvinenssseces 14, 15

Ortez v. Washington County, 88 F.3d 804 (9th Cir.

ET ee 10

Oxman v. WLS-TV, 846 F.2d 448 (7th Cir. 1988)................. 15

Richter v. Hook-SupeRx, Inc., 142 F.3d 1024 (7th

Cir. 1998)......... stab iehlaidlieniinaiinidmatiaabandiiabidiseveepemadesmpeneeses 27

Ring v. First Interstate Mortgage, Inc., 984 F.2d 924

I TI nea ethan certian cintenns diapenbciniantegtigetensecces 10

Scheuer v. Rhodes, 416 U.S. 232 (1974) .........cccceccccoseeeeeeeerees 6

Smith v. Borough of Wilkinburg, 147 F.3d 272 (3d

RRA AS A ae nn 15

iii

Sparrow v. United Air Lines, Inc., 216 F.3d 1111

Ey TIE ETE ntictrenactinceteneenesntesvecemadincsenmnienptantiienmmedls 9

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).... 10-13

TRW Inc. v. Andrews, _U.S. _, 122 S. Ct. 441

eel ere eeliasecetariatscaeetanipmaataiainastpmenaietinsinmieeemtel 5

United Air Lines, Inc. v. Evans, 431 U.S. 553

ITT. \iinciietideeetitias etnenpendanasipasinbipiusenensmabgnivemmonsnenempmenecte 26

U.S. Dep't of Defense v. Federal Labor Relations

aE OUI TTT soci tsincennccesnenntiieiamienninieeannesees 17

U.S. Postal Service Bd. of Governors v. Aikens, 460

(| EE Ee eee Cee 14

United States v. Mernasche, 348 U.S. 528 (1955) ........ccccccc00e. 5

Weston v. Pennsylvania, 251 F.3d 420 (3d Cir.

Sadia caittemedieasnatantnnnentepeniedininetgbbaiepenpieasensassneesenidesees 10

Statutes

Age Discrimination in Employment Act of 1967,

Ee ce 16, 19

re 16

Civil Rights Act of 1964, Title VII

I ir nr catlltae 19

I i crrcttnerineetsiittenneetiatnes 16, 17

Ecc 20

ET LT 17

EL ae ee 17

Ee ae 11-12

ESS a a ee 17

ee 17

Regulations

NATE SO 18

SET, 6 OO I ccsisitititaiclipitrsnitiaricitimiania 16

FO CPRR. CE eet trcccsnssecccsrcasianmnsvimssssssesse: 16

Rules

Fed. R. Civ. P.:

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TRIG cccrnsssncstnnitristannniscnpapinnteninnentianiniaiiabdimmepestpmeaminaataiasl 3,5

| passim

Ee 4

SIP cxnsunicnccnsnntcnrctstcsitiamsnnnmmntiaeenmesel 9

BEIEED BO ccansnevececenscssnssitusntinsininniindaneniaeeibipeniinnisnansesaiimnssiiniinel 4

Be Beet cxccccncienssenndanstemnatiienenmntesentseimienemneel 4,22

ae Pt cancssceccocnscinnepesenemniitantinnenméiinniaineiteetinapngel 4

SED Ts ececencnsnenertencsetneuinapintnniectimmenlinniniaiaiais 3, 10

BD Fi ceercccrentnncertsectennsnesennemmnnpnrnstnnammenseanennedl 4

Bathe BA(B}ES) -.-.-.20200.cececceceecesscseesscesssnscenenesecsesecssesesee passim

Other Authorities

Annual Report of the Director (2000), Washington

D.C.: Administrative Office of the United States

Se i rcceentanentensinnicittinmsisien 19-20

U.S. Equal Employment Opportunity Commission,

Age Discrimination in Employment Act (ADEA)

U.S. Equal Employment Opportunity Commission,

National Origin-Based Charges FY 1992 — FY

> ES aS a 1) ASE Tor Re a 23

Brief for the Petitioner, Swierkiewicz v. Sorema,

Sing Tas FP nnegecnminamimnnpen passim

Brief for the NAACP Legal Defense and Educa-

tional Fund, Inc. as Amicus Curiae in support of

Petitioner (November 16, 2001) ...............ccccccccceeeseeeeeeeeees 22

Brief for the Lawyers’ Committee for Civil Rights

Under Law as Amicus Curiae in support of Peti-

tioner (November 16, 2001)

IN THE

Supreme Court of the Anited States

No. 00-1853

AKOS SWIERKIEWICZ,

Petitioner,

SOREMA, N.A..,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

INTEREST OF AMICUS CURIAE'

The Center for Individual Freedom (“the Center”) is a

non-profit organization with the mission to protect and defend

individual freedoms and individual rights guaranteed by the

United States Constitution, including, but not limited to, due

process rights, free speech rights, property rights, privacy

rights, freedom of association, and religious freedom. Of par-

' This brief is filed with the written consent of all parties. No counsel for

a party authored this brief in whole or in part, nor did any person or entity,

other than Amicus or its counsel, make a monetary contribution to the

preparation or submission of this brief.

ticular importance to the Center in this case is constitutional

protection for “individual” due process under the law,

whether that individual be a person or corporate entity. The

Center believes that reduction of frivolous claims through the

conscientious and consistent enforcement of the pleading re-

quirements of the Federal Rules of Civil Procedure is a vital

step toward protecting such due process.

SUMMARY OF ARGUMENT

Employment discrimination actions brought under tiie

federal anti-discrimination statutes (e.g., Title VII of the Civil

Rights Act of 1964, as amended (“Title VII”), and the Age

Discrimination in Employment Act (“ADEA”)) are subject to

the notice pleading requirements of the Federal Rules of Civil

Procedure (the “Rules”). Petitioner’s interpretation of “notice

pleading,” however, fails to give the type of notice contem-

plated by the Rules or the case law interpreting them. Peti-

tioner argues that a discrimination plaintiff need only aver

that “an employee was fired because of his national origin and

age . . . to overcome a defense motion to dismiss.” (Peti-

tioner’s Brief, p. 16.) Such a conclusory allegation fails to

provide a defendant with “fair notice of what the plaintiff's

claim is and the grounds upon which it rests.” Conley v. Gib-

son, 355 U.S. 41, 47 (1957). Rather, it provides the defendant

with little, if anything, more than notice that he or she is being

sued.

Moreover, should such a conclusory allegation suffice to

overcome a defense motion to dismiss, Rule 12(b)(6) is ren-

dered a nullity in the employment context, something this

Court has never previously held or even suggested. As a re-

sult, Petitioner really is asking this Court to adopt a new, re-

laxed pleading, indeed a “non-pleading” standard in employ-

ment discrimination lawsuits. Nothing about discrimination

cases or discrimination plaintiffs warrants such a special ex-

ception. Due to the Equal Employment Opportunity Com-

mission (“EEOC”) charge filing and investigative processes,

and the rights accorded plaintiffs under the Freedom of In-

formation Act (“FOIA”), discrimination plaintiffs are among

the most informed of civil litigants at the pleading stage and

are in the best position to plead at least some facts in support

of their claims. Likewise, discrimination defendants, having

already been through the investigative process, have a com-

pelling due process right to have meritless claims dismissed at

the pleading stage.

The Second Circuit did not employ a “heightened” plead-

ing requirement in affirming the district court’s grant of Re-

spondent’s motion to dismiss Petitioner’s discriminatory ter-

mination claims. Rather, the Second Circuit required compli-

ance with the Rule 8 mandate to show that the claimant is

“entitled to relief.” Petitioner failed to do so and his Com-

plaint properly was dismissed.

ARGUMENT

I. PETITIONER'S CONCEPT OF £NOTICE

PLEADING RENDERS RULE 12(b)(6) A NULLITY

AND MISINTERPRETS THIS COURT'S PRIOR

RULINGS.

Rule | sets forth the “Scope and Purpose of the Rules”

and mandates that “[the Rules] shall be construed and admin-

istered to secure the just, speedy, and inexpensive determina-

tion of every action.” This broad pronouncement, which pro-

vides the backdrop for the construction of the Rules, is appli-

cable to plaintiffs and defendants, petitioners and respon-

dents, alike. It exemplifies this Court’s focus on striking a

’ balance between the fair adjudication of claims and the

avoidance of undue cost or delay in doing so.” Rules 8 and 12

2 See Advisory Committee Notes regarding 1993 amendments to Rule |

(“The purpose of this revision, adding the words ‘and administered’ to the

second sentence, is to recognize the affirmative duty of the court to exer-

cise the authority conferred by these rules to ensure that civi! litigation is

resolved not only fairly, but also without undue cost or delay. As officers

effectuate that balance at the pleading stage of litigation by

providing minimum pleading requirements and the method

and means to attack deficient pleadings, respectively. Rule

8(a) states, in relevant part:

A pleading which sets forth a claim for relief . . . shall

contain (1) a short and plain statement of the grounds

upon which the court’s jurisdiction depends . . . (2) a

short and plain statement of the claim showing that the

pleader is entitled to relief, and (3) a demand for judg-

ment for the relief the pleader seeks. (Emphasis added.)

Rule 12(b) provides, in relevant part, that a party may

bring a motion to dismiss for “(6) failure to state a claim upon

which relief can be granted .... A motion making any of

these defenses shall be made before pleading if a further

pleading is permitted.” (Emphasis added.)

Petitioner’s argument that a plaintiff in the employment

discrimination context need not allege any facts and yet may

still satisfy the pleading requirements of Rule 8(a) renders

Rule 12(b)(6) a nullity. Moreover, it is inconsistent with Rule

8(b) and Rule 11 — which also presuppose the pleading of

some factual allegations.’

of the court, attorneys share this responsibility with the judge to whom the

case is assigned.”)

> Rule 8(b) requires that “[a] party shall state in short and plain terms the

party’s defenses to each claim asserted and shall admit or deny the aver-

ments upon which the adverse party relies. If a party is without knowl-

edge or information sufficient to form a belief as to the truth of an aver-

ment, the party shall so state and this has the effect of a denial.” Rule

11(b)(3) requires attorneys and parties to certify that “the allegations and

other factual contentions have evidentiary support or, if specifically so

identified, are likely to have evidentiary support after a reasonable oppor-

tunity for further investigation or discovery.” (Emphasis added.) Rule

11(b)(4) requires attorneys and parties to certify that “the denials of fac-

tual contentions are warranted on the evidence or, if specifically so identi-

fied, are reasonably based on lack of information or belief.”

A. Basic Statutory Construction Requires That Rules

8(a) And 12(b)(6) Be Read So As To Make Each

Enforceable.

“Tt is ‘a cardinal principle of statutory construction’ that ‘a

statute ought, upon the whole, to be so construed that, if it can

be prevented, no clause, sentence, or word shall be superflu-

ous, void, or insignificant.’”” TRW Inc. v. Andrews, _ U.S.

__, 122 S. Ct. 441, 449 (2001) (citations omitted). This

Court repeatedly has reaffirmed that “‘[i]t is our duty “to give

effect, if possible, to every clause and word of a statute.””’”

Duncan v. Walker, 533 U.S. 167, _, 121 S. Ct. 2120, 2125

(2001) (citing United States v. Menasche, 348 U.S. 528, 538-

39 (1955)). Indeed, the Court is “‘reluctant to treat statutory

terms as surplusage’ in any setting.” Duncan, 533 U.S. at

__, 121 S. Ct. at 2125 (citation omitted). The same is true

for each of the Federal Rules of Civil Procedure promulgated

by this Court. To fulfill the overall purpose of the Rules --

the just, speedy, and inexpensive determination of every ac-

tion -- each Rule should be read so as to give it full effect.

B. Petitioner’s And Amici’s Interpretation Of Rule 8

Renders Rule 12(b)(6) A Nullity In The

Employment Discrimination Context.

Reduced to its essence, Petitioner and Amici argue that

Rule 12(b)(6) does not apply to discrimination lawsuits. If a

discrimination plaintiff satisfies the pleading requirements of

Rule 8(a) simply by alleging that (1) he is in a protected

group; and (2) a conclusory allegation that he was subjected

to discrimination, it is difficult, if not impossible, to conjure a

discrimination complaint that could be dismissed for failure to

state a claim upon which relief can be granted under Rule

12(b)(6). Should this Court adopt such a relaxed standard —

one in which no facts, only conclusory allegations, need be

pled to satisfy Rule 8(a) — it is actually holding that Rule

12(b)(6) does not apply to discrimination cases. Such a result

is unwarranted.

In order for a Rule 12(b)(6) motion to be granted, the

moving party must establish that the plaintiff has failed to

state a claim for which relief can be granted. A “claim” is

nothing more than the sum of its elements. Thus, a moving

party must show that the plaintiff has not alleged one or more

elements of the claim (i.e., prongs of the prima facie case)

and, therefore, did not, as a matter of law, state a claim. The

analysis has nothing whatsoever to do with determining

whether a plaintiff has evidence to support the allegations in

the complaint, weighing the evidence, assessing plaintiff's

likelihood of ultimately prevailing at summary judgment or

trial, or deciding whether plaintiff has set forth a complete

and convincing picture of the alleged wrongdoing. Rather,

Rule 12(b)(6) serves as the gatekeeper that determines

whether a plaintiff will be allowed to offer evidence in sup-

port of his complaint. See Scheuer v. Rhodes, 416 U.S. 232,

236 (1974) (“The issue is not whether a plaintiff will ulti-

mately prevail but whether the claimant is entitled to offer

evidence to support the claims.”) It is an issue of pleading,

not of proof. However, it requires the pleading of at least

some facts. Otherwise, there is nothing for a court to examine

under Rule 12(b)(6). If a claim could be stated by offering

nothing more than “I am in the protected group and I suffered

an adverse job action because of discrimination,” no court

could analyze the complaint to determine whether it states a

claim. This Court has not set such a low threshold for plead-

ing. Even in the context of discrimination cases, this Court

has held that Rule 12(b)(6) requires that facts, not just conclu-

sory allegations, be pled.

C. Petitioner Misinterprets This Court’s Prior Ruling

In Conley In Arguing That Discrimination Plain-

tiffs Need Not Plead Facts.

In support of their position, Petitioner and Amici improp-

erly rely upon this Court’s decision in Conley v. Gibson, 355

U.S. 41 (1957), for the proposition that a plaintiff in an em-

ployment discrimination action need not plead facts in sup-

port of his or her claim.‘ In making such an argument, Peti-

tioner relies upon quotations from the Conley decision — di-

vorced from the factual context in which they were made —

and ignores key language in the Court’s opinion. Indeed, the

Conley Court neither mandated that Rule 12(b)(6) was inap-

plicable in the employment discrimination context nor that a

plaintiff need not set forth any facts in support of his or her

claim of employment discrimination.

In Conley, African-American members of the Brother-

hood of Railway and Steamship Clerks brought a class action

against the Brotherhood, and its Local Union No. 28, alleging

breach of the duty of fair representation of all Union members

without regard to race. Jd. at 42. Defendants moved to dis-

miss the complaint on a number of grounds, including lack of

jurisdiction, failure to join an indispensable party, and failure

to state a claim upon which relief could be given. /d. at 43.

The District Court granted defendants’ motion on the ground

that Congress had given the Railroad Adjustment Board ex-

clusive jurisdiction over the controversy. Jd. at 43-44. The

Fifth Circuit Court of Appeals affirmed, relying on the same

ground. /d. at 44. This Court granted certiorari and held

that it was error for the lower courts to dismiss the complaint

for lack of jurisdiction. Jd. Although the District Court did

not rule on the other grounds advanced by defendants in their

motion to dismiss, this Court considered and ruled upon their

merits. Jd. at 45.

In adjudicating respondent’s argument that the complaint

failed to set forth a claim upon which relief could be granted,

this Court analyzed the sufficiency of the allegations alleged

by petitioners. These factual allegations included the follow-

ing: (1) “In May 1954, the Railroad purported to abolish 45

*“[A] complaint averring that an employee was fired because of his na-

tional origin and age . . . must also be sufficient to overcome a defense

motion to dismiss.” (Petitioner’s Brief, p. 16.)

jobs held by petitioners or other Negroes all of whom were

either discharged or demoted”; (2) “In truth the 45 jobs were

not abolished at all but instead filled by whites as the Negroes

were ousted, except for a few instances where Negroes were

rehired to fill their old jobs but with loss of seniority”; (3)

“Despite repeated pleas by petitioners, the Union, acting ac-

cording to plan, did nothing to protect them against these dis-

criminatory discharges and refused to give them protection

comparable to that given white employees”; and (4) “[TJhe

Union had failed in general to represent Negro employees

equally and in good faith” in violation of the Railway Labor

Act. Id. at 43. The Court held that, if proven, the complaint’s

allegations would constitute “a manifest breach of the Un-

ion’s statutory duty to represent fairly and without hostile dis-

crimination all of the employees in the bargaining unit.” /d.

at 46.

Addressing respondent’s argument that the complaint

failed to set forth sufficient facts, the Court responded:

[T]he Federal Rules of Civil Procedure do not require a

claimant to set out in detail the facts upon which he

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

“a short and plain statement of the claim” that will give

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

and the grounds upon which it rests.

Id. at 47 (emphasis added) (footnote omitted). The Court fur-

ther explained that it had “no doubt that petitioners’ com-

plaint adequately set forth a claim and gave the respondents

fair notice of its basis.” Jd. at 48.

The Supreme Court used the Conley decision to explain

what is and is not required to survive a motion to dismiss un-

der the notice pleading standard adopted by the Federal Rules.

Far from holding that a discrimination plaintiff need not plead

any facts in support of his claim, Conley stated that the “Fed-

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

out in detail the facts upon which he bases his claim.” Jd. at

47 (emphasis added). In other words, the Court ensured that

petitioners had, at a minimum, alleged the requisite facts so as

to state a claim for relief should the evidence support them,

but it was not going to require petitioners to plead every fact

possible in support of their claims at that early stage of the

litigation. This balance effectuates Rule 8(f)’s mandate that

“fa]ll pleadings shall be so construed as to do substantial jus-

tice,” especially in light of the numerous factual allegations

pled by petitioners in support of their claim. The Conley

Court did not face, nor did it adjudicate, a scenario in which a

plaintiff sets forth no facts to support his claim of discrimina-

tion. Moreover, the Court gave no indication that a plaintiff

would survive a motion to dismiss and be afforded the oppor-

tunity to offer evidence in support of his claims in such a sce-

nario.

Petitioner and Amici start with the incorrect presumption

that notice pleading means that a plaintiff need not allege any

facts in support of his claims; it satisfies the pleading re-

quirements to simply put a defendant on notice that he is be-

ing sued. They then purport to place the imprimatur of the

Supreme Court upon that faulty presumption by citing Conley

as affirming their position. To do so, they divorce Conley

from its factual context (particularly that the Conley petition-

ers set forth enough facts to state a prima facie case) and ig-

nore the “in detail” portion of the quotation addressing what

facts must be alleged. Indeed, the circuit court decisions re-

lied upon by Petitioner for the proposition that a plaintiff can

satisfy Rule 8(a) and survive a motion to dismiss without

pleading facts in support of his claim (Petitioner’s Brief,

pp. 18-19), rely on this faulty analysis of the Conley decision

and/or involve factual allegations sufficient to state the ele-

ments of the claims asserted.°

* See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114-16 (D.C. Cir.

2000) (misconstruing the Conley language, while relying on the McDon-

nell Douglas framework to conclude that Plaintiff had adequate facts sup-

Recently, this Court, in affirming a lower court’s grant of

a motion to dismiss under Rule 12(b)(6), analyzed the ele-

ments of the underlying discrimination claim and determined

whether the plaintiff sufficiently alleged those elements in the

complaint. In Sutton v. United Air Lines, Inc., 527 U.S. 471

(1999), this Court had to decide whether petitioners, who

were plaintiffs in a disability discrimination action, had failed

to state a claim under Rule 12(b)(6). Petitioners had applied

for positions as commercial airline pilots with United Air

Lines. They alleged that they had severe myopia, but that

“*with the use of corrective lenses, each . . . has vision that is

20/20 or better.”” Jd. at 475 (citation omitted). Petitioners

went on to allege that “without corrective lenses, each ‘effec-

porting his claims for relief); Weston v. Pennsylvania, 25\ F.3d 420, 427-

28 (3d Cir. 2001) (misconstruing Conley language while specifically re-

quiring the pleading of facts: “Weston’s complaint indicates that he was

subjected to comments, jokes, and jibes by unspecified inmates. Com-

plaint at P. 18. Absent further amplification—for instance that prison of-

ficials encouraged the inmate’s comments, or that prison officials knew of

the harassing conduct but failed to remedy it—this mere allegation is in-

sufficient to state a Title VII claim.”); Bennett v. Schmidt, 153 F.3d 516,

517-19 (7th Cir. 1998) (improperly relying on Conley while confusing the

concept of “proof” with “allegations,” but nonetheless emphasizing that

plaintiff had set out the elements of the discrimination claim); Ring v.

First Interstate Mortgage, Inc., 984 F.2d 924, 927-28 (8th Cir. 1993) (re-

lying on language from Conley decision divorced from factual context of

the case; rejecting the prima facie case as a basis for Rule !2 analysis, but

utilizing the statutory elements of the Fair Housing Act to determine

whether plaintiff's complaint allegations could survive a motion to dis-

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

(plaintiff set forth numerous factual allegations in support of his discrimi-

nation claim, including that (1) he was required to comply with different

terms and conditions of employment than were required of his non-

Mexican-American co-workers; (2) defendants failed to inform him of a

new system of recording housing inspections; (3) defendants required him

to satisfy conditions not required of non-Mexican-American employees in

order to return to work following a medical leave; (4) defendants imposed

performance standards upon him that were not imposed on non-Mexican-

American employees; and (5) he was replaced by a less qualified and less -

experienced non-Mexican-American employee after his termination).

tively cannot see to conduct numerous activities such as driv-

ing a vehicle, watching television or shopping in public

stores,’ . . . but with corrective measures, such as glasses or

contact lenses, both ‘function identically to individuals with-

out a similar impairment.’” /d. (citations omitted). Due to

petitioners’ failure to meet United Air Lines’ minimum vision

requirement (uncorrected visual acuity of 20/100 or better),

their interviews were terminated, and neither was offered a

pilot position. /d at 475-76. Petitioners filed an administra-

tive charge with the EEOC alleging that United Air Lines had

discriminated against them “‘on the basis of their disability,

or because [respondent] regarded [petitioners] as having a dis-

ability’” in violation of the Americans with Disabilities Act

(“ADA”). Id. at 476.

The District Court dismissed petitioners’ complaint for

failure to state a claim upon which relief could be granted on

two grounds: (1) because petitioners could fully correct their

visual impairments, the court held that they were not actually

substantially limited in any major life activity and thus had

not stated a claim that they were disabled within the meaning

of the ADA; and (2) petitioners had not made allegations suf-

ficient to support their claim that they were “regarded” by re-

spondent as having an impairment that substantially limits a

major life activity. Jd The Court of Appeals for the Tenth

Circuit affirmed the District Court’s judgment. /d. at 477.

In analyzing whether petitioners’ disability discrimination

action properly had been dismissed for failure to state a claim

upon which relief could be granted under Rule 12(b)(6), this

Court began its analysis by turning to the language of the

ADA itself, which sets forth the elements of a claim for dis-

ability discrimination.* As to petitioners’ claim that they

disability.” /d at 477. The ADA defines “disability” as: “(A) a physical

or mental impairment that substantially limits one or more of the major

were “regarded as” disabled by United Air Lines, this Court

affirmed the lower courts’ grant of the motion to dismiss

“(bJecause petitioners have not alleged, and cannot demon-

strate, that respondent’s vision requirement reflects a belief

that petitioners’ vision substantially limits them.” /d. at 494.

The conclusory allegation that petitioners believed that

United Air Lines regarded them as being disabled did not en-

title them to conduct discovery because they pled no facts

from which such an inference could be drawn.

The Court’s analysis in Sutton teaches two very important

lessons. First, it is logical and appropriate to analyze a mo-

tion to dismiss under Rule 12(b)(6) by examining the ele-

ments that make up the claim and determining whether a

plaintiff has sufficiently alleged those elements in the com-

plaint. Second, a discrimination plaintiff must plead more

than the conclusory allegation “I was [subjected to an adverse

employment action] because of [protected status].” Indeed,

the petitioners in Sutton were required to allege facts in sup-

port of each of the elements of a disability discrimination

claim. To wit, they were required to allege not only that they

believed that the employment action was motivated by dis-

substantially limited in a major life activity and/or the facts

showing that they were regarded as being so limited. Since

they were unable to do so, their complaint properly was dis-

missed under Rule 12(b)(6). According to Petitioner, requir-

life activities of such individual; (B) a record of such an impairment; or

” Specifically, this Court noted that “petitioners have failed to allege ade-

ing such a showing at the pleading stage constitutes a

“heightened pleading requirement.” (Petitioner’s Brief, pp.

20-23.) It does not. Petitioner’s concept of notice pleading

runs directly counter to this Court’s analysis and holding in

Sutton.

Petitioner similarly misconstrues the import of the Federal

Forms in arguing that notice pleading dispenses with the need

for facts. According to Petitioner, Federal Form 9 requires

nothing more than a pleading of negligence to state a claim.

(Petitioner’s Brief, p. 16.) However, the Forms themselves

belie this statement. Form 9 specifically alleges the date of

the accident, that the accident took place on a public highway,

that the plaintiff was a pedestrian on said highway, that plain-

tiff was hit by a motor vehicle driven by defendant, and

thereby injured. While the complaint does not specifically

allege that there was a duty of care from the defendant toward

the plaintiff, the fact that plaintiff was walking and defendant

was driving on a public highway are facts from which a duty

of care from defendant toward plaintiff can be inferred. Simi-

larly, while plaintiff does not specifically allege how the de-

fendant was negligent and only states generally that the de-

fendant was “negligent,” the fact that defendant, while driv-

ing, struck plaintiff, while walking on a public highway, are

facts from which negligence can be inferred. Therefore, the

conclusory allegation that defendant “negligently drove” his

car is a conclusion that can be logically reached from the facts

pled in the complaint.

Thus, while a conclusory allegation can be sufficient to al-

lege negligence, it is not sufficient if the complaint is devoid

of facts upon which that conclusory allegation can be justi-

fied. Not every fact need be pled, nor must every defense be

vitiated (e.g., plaintiff was not required to plead that he was

walking safely, or in a crosswalk), but some facts from which,

absent rebuttal, a claim could be made, had to be alleged.

Keeping in mind this basic premise derived from Conley,

Sutton, and the Federal Forms — that the complaint must con-

tain at least enough facts from which a claim can be inferred,

it is then possible to see how Petitioner, and Amici in Suppot

of Petitioner , have mixed the concepts of pleading and prod’

summary judgment and Rule 12(b)(6), to try to create im-

pression that no facts should be required of Title VII or

ADEA plaintiffs at the pleading stage. First, unlike the ADA,

case of intentional discrimination is to show the circumstan- umstan

ma ie case is set forth in McDonnell Douglas Corp. v.

al U.S. 792 (1973), and subsequent cases. While the

McDonnell Douglas standard is not the only framework

within which a plaintiff can state a discrimination claim,

plaintiffs generally rely on it because it is so easy to satisfy.

Lacking any direct evidence of discrimination, a plaintiff can

still state a claim merely by alleging that (1) he is in a pro-

tected class; (2) he suffered an adverse job action; (3) he was

performing satisfactorily; and (4) others, not in the protected

class, were treated more favorably. ph

In repeated reaffirming the use of the McDonne g-

las test. courts have made comments, such as those quoted in

the briefs for Petitioner and his Amici, that discrimination

* This phraseology of the test changes depending on

claim (e.g., in a discriminatory hiring claim it might be

tiff was not hired and a less qualified individual, not in

was hired).

the nature of the

phrased that plain-

the protected class,

plaintiffs do not have access to all of the facts, or that dis-

crimination is often subtle and unstated and that plaintiffs fre-

quently will lack direct evidence. However, Petitioner greatly

misconstrues and overstates these observations in concluding

that they imply that a Title VII or ADEA plaintiff need not

plead any facts. Rather, these statements justify allowing a

Title VII or ADEA plaintiff to stay in court in situations

where he lacks any direct or specific facts that prove dis-

crimination and uses only facts that circumstantially may le-

gally iraply discrimination.? These cases do not hold, nor

should they be construed to hold, that a Title VII or ADEA

plaintiff who pleads no facts from which discrimination can

even be inferred should retain his right to remain in court.

Petitioner argues that because he does not have to prove a

prima facie case at the pleading stage, he therefore does not

even have to allege one. (Petitioner’s Brief, p. 18.) That is

incorrect. Informing a defendant that he is being sued for dis-

crimination is not sufficient. Rule 8(a) requires that there be a

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

“claim” may be composed of facts, which if proven, would

create a McDonnell Douglas inference of discrimination, or

may show a disparate impact on a protected group, or Peti-

tioner may want to argue some other standard by which facts

sufficient to state a Title VII or ADEA claim may be judged.

However, the claim must arise out of facts. It cannot arise out

of nothing more than conclusory allegations, nor can it arise

* See, e.g., Oxmun v. WLS-TV, 846 F.2d 448, 453 (7th Cir. 1988) (relied

on by Amicus Lawyers’ Committee for Civil Rights Under Law which

reversed the granting of a motion for summary judgment but observed:

“when a plaintiff cannot make out a prima facie case, the employer can

avoid unnecessary litigation expense by filing a motion to dismiss. . . .”);

Smith v. Borough of Wilkinburg, 147 F.3d 272, 278 (3d Cir. 1998) (held

that it was reversible error not to instruct the jury that they could, but did

not have to, find for plaintiff if they found that plaintiff had proven a

prima facie case and that defendant's explanation for the termination was

not believed) (cases cited in Amicus Brief of Lawyers’ Committee for

Civil Rights Under Law, pp. 14-15).

i i i reate an infer-

out of facts which, even if proven, still do not c

ence of discrimination. To hold to the contrary renders Rule

12(b)(6) a nullity.

Il. THERE IS NOTHING UNIQUE ABOUT yeh

AND ADEA PLAINTIFFS THAT SHO

EXEMPT THEIR CLAIMS FROM RULE 12(b)(6)

ANALYSIS.

i iti itle VII or ADEA

Ironically, Petitioner argues that a Title .

plaintiff should not have to allege facts in support of his com-

plaint because defendants are already on notice as to the

claims through the EEOC charge filing and investigation

process. (Petitioner’s Brief, pp. 16-17.) In fact, this results in

exactly the opposite conclusion. Prior to filing a lawsuit un-

der Title VII or the ADEA, a plaintiff must exhaust his or her

administrative remedies by filing a charge of discrimination

with the EEOC. See 42 U.S.C. § 2000e-5(b) (Title Vil) -

29 U.S.C. § 626(d) (ADEA). The EEOC requires that ;

administrative charge contain “[a] clear and concise ——

of the facts, including pertinent dates, constituting oy nen

unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3)

(Title VII) (emphasis added); 29 C.F.R. 1626.8(a)(3) (same as

to ADEA). Title VII also requires that “[c}harges shall be in

writing under oath or affirmation and shall contain such in-

formation and be in such form as the Commission requires.

42 U.S.C. § 2000e-5(b). As such, all plaintiffs alleging ve

ployment discrimination under Title VII or the ADEA ve

already been required to plead specific facts supporting their

discrimination claims during the EEOC charge process.

Based upon the factual allegations made in the admini

tive charge and the accompanying affidavit of the charging

party, the EEOC is empowered to conduct an investigation.

To aid in the determination of whether the EEOC has “rea-

sonable cause” to believe that there has a been a violation of

the anti-discrimination statute, the agency, in connection with

the investigation of a charge “shall at all reasonable times

have access to, for the purposes of examination, and the right

to copy any evidence of any person being investigated or pro-

ceeded against that relates to unlawful employment practices

.. . and is relevant to the charge under investigation.” 42

U.S.C. § 2000e-8(a). This investigation could include a de-

mand for documents (including personnel files, hiring and

termination data, and statistical information), interviews of

witnesses and decisionmakers, and visits to the site of the al-

leged discrimination. At the conclusion of the investigation,

the EEOC will make a determination as to whether there is

reasonable cause to believe that there was a violation of the

particular anti-discrimination statute (e.g., Title VII, ADEA,

ADA, Equal Pay Act). See 42 U.S.C. § 2000e-5(b).

Regardless of the outcome, upon conclusion of the EEOC

investigation, a charging party simply can make a written re-

quest, pursuant to the Freedom of Information Act (“FOIA”),

for a copy of the EEOC file compiled during the investigation

of his or her charge. 5 U.S.C. § 552. Although Title VII re-

quires the EEOC to maintain the confidentiality of its investi-

gation in general (see 42 U.S.C. § 2000e-8(e)), there is a sig-

nificant exception. This Court has held that Section 200Ue-

8(e) does not prohibit the EEOC from disclosing information

obtained in an investigation to a charging party." See EEOC

'° Section 5$52(b)(6) of the FOIA exempts from disclosure “personnel and

medical files and similar files the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy.” This exemption, how-

ever, is not a blanket exemption for personnel files. Rather, in evaluating

whether a request for information lies within the scope of the exemption,

the court must balance the extent to which disclosure would serve FOIA’s

core purpose of contributing significantly to public understanding of the

government's operations or activities against the individual's right to pri-

vacy. See U.S. Dep't of Defense v. Federal Labor Relations Auth., 510

U.S. 487, 495-96, 502 (1994) (federal agencies not required by FOIA to

divulge addresses of employees io Union because employee's interest in

non-disclosure outweighs negligible FOIA-related public interest in dis-

closure); Dep't of Air Force v. Rose, 425 U.S. 352, 371-72 (1976) (hold-

ing that Section 522(b\(6) does not create a “blanket exemption” for per-

v. Associated Dry Goods Corp., 449 U.S. 590, 598 (1981)

(reversing district court’s protective order barring disclosure

to charging party of information in his own file); see also 29

C.F.R. § 1601.22; EEOC v. Aon Consulting, Inc., 149 F.

Supp. 2d 601, 603 (S.D. Ind. 2001) (The EEOC may “share

the results of its investigation with complaining parties, who

are under no legal obligation to maintain confidentiality.”).

Moreover, although the EEOC requires charging parties to

sign nondisclosure agreements before they gain access to in-

formation that the EEOC obtained in an investigation, the

nondisclosure agreement allows the charging party to disclose

information through a lawsuit. See EEOC v. Associated Dry

Goods Corp., 449 U.S. at 596-98 & n.12 (citing EEOC Com-

pliance Manual § 83.3).'!

At the end of the day, then, the argument that discrimina-

tion plaintiffs would be barred from bringing potentially meri-

torious discrimination lawsuits by having to plead some facts

in support of their claims rings hollow, as does the argument

that plaintiffs are simply unaware, at the time they file their

complaint, of the facts upon which they may base a claim for

relief. Indeed, due to the EEOC exhaustion requirement and

investigative process, discrimination plaintiffs are in perhaps

the best position to comply with Rule 8(a) and set forth at

least minimal facts in support of their claims.

sonnel files; “Congress also made clear that nonconfidential matter was

not to be insulated from disclosure merely because it was stored by an

agency in its ‘personnel’ files. Rather, Congress sought to construct an

exemption that would require a balancing of the individual’s right of pri-

vacy against the preservation of the basic purpose of the [FOIA] .... The

device adopted to achieve that balance was the limited exemption, where

privacy was threatened, for ‘clearly unwarranted’ invasions of personal

privacy.)

'' In any event, as has been noted by the courts, “[t}here is no indication,

however, that such agreements have effective enforcement mechanisms

where a charging party violates the agreement.” EEOC v. Aon Consulting,

Inc., 149 F. Supp. 2d at 605.

Furthermore, undercutting a court’s ability to scrutinize a

Title VII or ADEA claim under Rule 12(b)(6), by eliminating

the need for facts to be pled, runs counter to the public policy

exemplified in Title VII and the ADEA for a prompt investi-

gation and resolution of claims. See 42 U.S.C. § 2000e(5); 29

U.S.C. § 626. Since charging parties are required to state

facts to the EEOC, the pleading standard urged by Petitioner

would make it easier for alleged victims to sue than to get

their charges investigated and resolved by the EEOC. While

such a standard would clearly benefit plaintiffs’ lawyers, it

does nothing to further the goals of promptly investigating

and remedying discrimination in employment.

Ill. THE FEDERAL RULES SHOULD’ BE

CONSTRUED WITH AMPLE REGARD FOR THE

DUE PROCESS CONCERNS RAISED’ BY

IMPOSING LITIGATION COSTS ON

DEFENDANTS WITHOUT ADEQUATE

PLEADING OF A VALID CLAIM.

Petitioner’s argument that all defendants sued for em-

ployment discrimination must weather discovery and pursue a

motion for summary judgment to extricate themselves from

litigation — even where plaintiffs have pled no facts to support

their claims — implicates fundamental due process concerns

by allowing plaintiffs to use government authority to impose

tremendous costs on defendants where there is no reasonable

basis to believe that wrongdoing has occurred. (Petitioner’s

Brief, pp. 20-23.) It is impossible to justify subjecting dis-

crimination defendants to months of litigation'? — which ex-

'? During the 12-month period from October 1, 1999 through Sep-

tember 30, 2000, 179,360 civil cases terminated (either without court ac-

tion or as a result of some action by the court). See Annual Report of the

Director (2000), Washington D.C.: Administrative Office of the United

States Courts (Table C-5). For the 32,350 civil cases that terminated

without court action, the median time interval from filing to disposition

was 7.9 months. /d During that same 12-month period, a total of 47,010

not only a hefty monetary toll, but also a significant hu-

oe and pe dt toll — when adequate due process at the

pleadings stage, as contemplated and required by the Federal

Rules, could allow a prompt determination on a motion to

dismiss that the complaint failed to state a claim upon which

relief could be granted. |

According to Petitioner, the bald, conclusory allegation

that “I was fired because of my national origin” (see Peti-

tioner’s Brief, p. 16), is all a plaintiff must plead to force a

defendant to incur months and months of attorneys’ fees and

costs. This unwarranted financial outlay includes costly dis-

covery (including, at a minimum, propounding and respond-

ing to document demands and taking and defending deposi-

tions), communications with opposing counsel, court appear-

ances, and preparation and adjudication of a motion for sum-

mary judgment. Absent the availability of a Rule 12 motion

to dismiss for failure to state a claim upon which relief can be

granted, defendants (which include individuals, who can be

held personally liable) are guaranteed to expend literally thou-

sands of dollars regardless of the merits of the action or its

eventual outcome.'’ Many defendants, thus, make an eco-

ivil cases terminated as a result of court action. The median time interval

from filing to disposition of the (1) 122,508 civil cases that terminated due

to court action taken before pre-trial proceedings commenced was 18

months; (2) 19,474 civil cases that terminated due to court action during

or after pre-trial proceedings was 13.6 months; and (3) 5,028 civil cases

that terminated as a result of trial was 20.1 months. /d.

'S Defendants who ultimately prevail in the action via a motion for sum-

mary judgment or other means stand very little chance of recovering their

attorneys’ fees as a “prevailing party” under 42 U.S.C. § 2000e-5(k). In-

deed, this Court has distinguished between recovery standards for prevail-

ing Title VII plaintiffs and prevailing Title VII defendants. “[A] prevail-

, ing plaintiff ordinarily is to be awarded attorney’s fees in all but special

circumstances.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412,

417 (1978). By contrast, a court may not award attorneys vurtn ws

vailing Title VII defendant unless the “court finds that [the plaintiff's}

nomic decision that it is less expensive simply to settle the

case (even if it has no merit), rather than incur the virtually

guaranteed non-recoverable expense of mounting a defense.

The result: a relaxed pleading standard requiring no facts en-

courages the bringing of baseless discrimination lawsuits with

the hope that a monetary settlement based on these defense

economic considerations alone can be exacted.

The only people who win in this situation are the plaintiffs

and the lawyers who bring these baseless lawsuits. Defen-

dants lose in a number of ways, including financial loss, emo-

tional loss, and a loss in productivity from having employees

tied up in litigation instead of performing their jobs. The

other losers under this scenario are the courts and plaintiffs

with meritorious claims. Claims without factual underpin-

nings pursued through discovery and summary judgment clog

the courts and make it more difficult for plaintiffs with at

least arguably meritorious claims, based on facts, to receive a

fair, impartial hearing. No one wins when true violations of

the federal anti-discrimination laws go unremedied. How-

ever, forcing defendants to spend, at a minimum, thousands of

dollars to defend a meritless, factually unsupported discrimi-

nation lawsuit through discovery and summary judgment pro-

ceedings contributes nothing toward legitimate enforcement

of the anti-discrimination laws, and adversely impacts the due

process rights of both defendants and plaintiffs with meritori-

ous claims. Any construction of the Federal Rules thus

should be made with a keen awareness of the due process

concerns that would be implicated by an overly relaxed plead-

ings standard allowing rank speculation and slander to substi-

tute for good-faith factual allegations.

claim was frivolous, unreasonable, or groundless, or that the plaintiff con-

tinued to litigate after it clearly became so.” /d at 422. Even under those

The argument offered by Amicus NAACP Legal Defense

and Educational Fund, Inc. is that civil rights plaintiffs cannot

be asked to plead facts because they will be subject to Rule 11

sanctions if they are wrong. (NAACP Amicus Brief, pp. 10-

12.) The solution proposed is that discrimination plaintiffs

should not be required to plead any facts at all. This argu-

ment is without merit and demonstrates the fundamental un-

fairness to defendants of Petitioner’s proposed relaxed stan-

dard.

Preliminarily, the standard for Rule 11 sanctions is not

that plaintiff fails to prove the facts alleged, but rather, that

plaintiff had no legitimate basis for making the allegation.

See Fed. R. Civ. P. 11(b)(3). Where a plaintiff is basing his

claim on facts he does not have any reasonable basis to be-

lieve are true, he should not be able to subject a defendant to

months of litigation and avoid sanctions because he was not

required to specify his false assertions in his complaint.

Secondly, as noted above, both because of the EEOC

and because of the rules allowing inferences of dis-

crimination to be drawn from facts which do not constitute

direct evidence of discrimination, plaintiffs have access to

much information and a variety of ways to formulate their

claims, even without knowing any specific fact that consti-

tutes direct evidence of discrimination. The argument that

plaintiffs’ attorneys cannot talk to co-employees is disingenu-

ous and misstates the cases cited. (NAACP Amicus Brief, pp.

8-10.) Not one case cited by Amicus NAACP held that rank

and file employees could not be contacted. The cases pertain

to lawyer contact with personnel who had the power to bind

the company. Furthermore, nothing prohibits the plaintiffs

themselves from discussing their issues with managerial and

non-managerial personnel.

If, after all of that, plaintiff cannot state facts that he rea-

sonably believes to be true, and that constitute the minimum

facts upon which a discrimination claim for relief can be

granted, then plaintiff should not be in court.'* The solution

is not to abrogate the need to state facts; the solution is to ad-

mit that such plaintiffs do not have legitimate claims and

should not be wasting the courts’ time and defendants’ re-

sources. To allow plaintiffs, based on pure unreviewable

speculation, to invoke the power of the courts to impose tre-

mendous unrecoverable costs on defendants is the epitome of

ym of JaiN without due process of law. The Fed-

es contemplate no such thin -

st g, and should be con

Instructive in this regard are the charge i isti i

processing statistics main-

— the EEOC. For example, during fiscal year 2000, of the 8,691

inistrative charges alleging national origin discrimination resolved by

the EEOC, the EEOC determined that there was no “reasonable cause” to

believe that Title VII had been violated in 63.3% of the cases. See U.S.

Equal Employment Opportunity Commission, National Origin-Based

Charges FY 1992 ~- FY 2000. The EEOC found “reasonable cause” to

believe a violation of Title VII had occurred in only 8.6% of the cases. /d

The remainder of the cases were disposed of through other means, includ-

ing settlement (7.2%) and administrative closures (17.7%). Id

The statistics are similar in the age discrimination context i

fiscal year 2000, of the 14,672 administrative charges alleging Posy

crimination resolved by the EEOC, the EEOC determined that there was

oe mnmnto canad’ to believe that the ADEA had been vielssed in 50%

0 cases. See U.S. Equal Employment Opportunity Commission, Age

gee ap in Employment Act (ADEA) Charges FY 1992 ~ FY 2000.

oe EEOC found “reasonable cause” to believe a violation of the ADEA

occurred in only 8.2% of the cases. Id. The remainder of the cases

were disposed of through other means, including settlement (7.9%) and

administrative closures (22.0%). Jd These statistics do not lead to an

inference that meritorious discrimination plaintiffs are without recourse

Indeed, it would appear that a substantial number of non-meritorious

claims are given the benefit of government investigation.

IV. THE SECOND CIRCUIT DID NOT REQUIRE A

HEIGHTENED PLEADING STANDARD IN

EVALUATING PETITIONER'S DISCRIMINA-

TORY TERMINATION CLAIM.

Petitioner avoids focusing on what his alleged claim in-

volves. Petitioner is suing over only one job action, his ter-

mination. JA 38a. He asserts that it was motivated by age

and/or national origin discrimination.

A. Petitioner’s Age Discrimination Claim Fails.

With regard to his claim for discriminatory termination on

the basis of age, Petitioner alleges only that in April of 1997

he wrote a letter to Mr. Chavel, his supervisor, stating that he

wanted a “severance package” to “resolve his disputes with

Sorema.” JA 26a (31). Although the Complaint fails to

specify Mr. Chavel’s age, the EEOC charge, referenced in the

Complaint, sets forth that Mr. Chavel (50) is approximately

the same age as Petitioner (51). JA 20a (q II); 21a (qf Ill).

In response to this letter, Mr. Chavel and the general

counsel, Daniel Schmidt, a man whose age is not alleged,

gave Petitioner the choice to resign or be fired. He elected to

be terminated. JA 27a ({ 33).

Plaintiff does not allege that he was receiving poor per-

formance reviews, that he was threatened with termination or

that he had any reason to believe termination was imminent.

He does not allege that he was terminated by or replaced by

anyone younger. He does not allege that his letter protested

age discrimination, and, indeed, has conceded that no dis-

crimination claim can be inferred from the letter. JA 22a-30a;

34a-36a; 39a. In his EEOC charge, he alleged that the letter

was prompted by his “untenable relationship” with Mr. Papa-

dopoulo, a 33 year old co-worker. JA 20a-21a ({ II). He does

not allege that Mr. Papadopoulo had any role in the decision

to terminate him. JA 22a-30a. Thus, there is not a single op-

erative fact that indicates that, but for his letter, he would not

still be working. The Petitioner adds to this fact pattern the

conclusory assertion that he was fired because of his age.

However, under no stretch of the imagination can a court or

jury conclude that these facts, even if proven conclusively,

constitute discrimination on the basis of age. It is therefore

inappropriate for Respondent to be required to defend against

these allegations through discovery and summary judgment, a

condition which a “no fact” pleading standard would allow.

B. — National Origin Discrimination Claim

As to his claim that he was terminated on the basis of his

national origin, Petitioner alleges that he is a United States

citizen of Hungarian origin. JA 24a (12). He alleges that

Mr. Chavel is a “French national” (presumably both a French

citizen and of French national origin).'* JA 24a (914). He

does not allege the national origin of Mr. Schmidt. JA 22a-

30a. Mr. Papadapoulo, with whom Petitioner had the unten-

able working relationship, is alleged to be of Greek national

origin. JA 2la (¥1). He does not allege that he ever told

anyone he was Hungarian or that Mr. Chavel, Mr. Schmidt or

anyone else knew that he was Hungarian. JA 22a-30a.'®

Thus, Petitioner does not allege any facts from which an in-

‘erence of termination on the basis of national origin can be

'* Petitioner has randomly mixed allegations of itizenship and national

origin. Citizenship is not a protected class : ‘fo

Farah Mfg. Co, 414 US. 86(1973). oie .

'* Since Petitioner's surname is not one readily identifiable

as being Hun-

ae ees ranagin there can be no inference that his Hungarian national ori

C. Petitioner’s Background Facts Cannot Save His

Claims.

The issue is, can Petitioner stay in court over a termina-

tion about which he «‘leges no facts from which discrimina-

tion can be inferre:!, vased on allegations of potential dis-

riods about which he is not suing? Certainly not.

Virtually all of the briefing has addressed the alleged

wrongful demotion and the “facts” surrounding that demo-

tion. Specifically, the complaint and all of the briefs stress

that in 1995 Mr. Chavel placed Mr. Papadapoulo in the job

held by Petitioner. Petitioner also alleges that Mr. Pa-

padapoulo was less qualified than he. Petitioner worked in

his new position for two years. JA 25a (¥ 19); 27a (4 33). It

is argued that these facts are sufficient to raise an inference

that Petitioner's demotion was due to age or national origin.

However, Petitioner is not suing over his demotion. If he had

any claim pertaining to his demotion, he failed to act on it.

Under those circumstances, as this Court has recognized, the

“demotion” is “merely an unfortunate event in history which

has no present legal consequences.” United Air Lines, Inc. v.

Evans, 431 U.S. 553, 558 (1977).

Furthermore, according to the Complaint, two other man-

agement changes were made at the time of the alleged demo-

tion. Mr. Peed, a younger man from the Houston office, was

promoted, and Mr. Gouze, a man whose age is not alleged,

was hired. JA 25a-26a (J 24); 26a (J 26). Petitioner does not

allege that he quit or protested alleged discrimination at the

time of his alleged demotion, that he lost pay, pay grade or

title, that he was placed on any kind of job correction or criti-

cized in any way, or that he was threatened with termination.

JA 22a-30a. Petitioner stresses that at the time of his alleged

demotion he was told that the department needed to be “ener-

gized” and insists that this creates an inference that age was

the reason for the demotion. Putting aside the issue of

whether “energy” does or does not connote age and whether it

would ever be a reasonable inference for a jury to draw, this

begs the question of whether the termination, over two years

later, about which there was no discussion of “energizing”

anything, is surrounded by sufficient indicia of discrimination

to create a viable pleading. The courts below rightfully con-

cluded that it was not. If Petitioner proves all that he has al-

leged, a man Petitioner's age cannot be presumed to have

terminated Petitioner’s employment because of his age be-

to other situations and to individuals who may or may not be

in Petitioner's protected class(es). Petitioner does not allege

that any policy, practice or activity had a disparate impact.

Furthermore, Petitioner does not allege any overt discrimina-

IY Teference or statement in connection with his termina-

Thus, despite the efforts of Petitioner and his Amici to

create the impression that the courts below required a

“heightened standard” or “proof” of any allegations, they did

not. They did, however, hold that Petitioner must do more

than allege the word “discrimination” before he is allowed to

drag Respondent through months of litigation and thousands

of dollars in costs in order to conclude, at the end of the day,

that which was apparent from ‘he face of the pleading: spe-

cifically, that if he successfully proves every thing he has

stated, he has no claim.

CONCLUSION

For the foregoing reasons, the decision of United States

Court of Appeals for the Second Circuit should be affirmed.

Respectfully submitted;