STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing numerous federal statutes prohibiting discrimination in employment, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Connelly’s complaint pleaded factual allegations showing the plausibility of her Title VII claims sufficient to satisfy Rule 8(a)(2) of the Federal Rules of Civil Procedure, as interpreted by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and this Court’s precedent.

The EEOC has a strong interest in ensuring that pleadings that contain facially plausible claims of employment discrimination are not erroneously, and prematurely, extinguished. Accordingly, the EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

STATEMENT OF THE ISSUES [1]

I. Whether Connelly’s complaint was sufficient under Federal Rule of Civil Procedure 8(a)(2) to state a plausible Title VII claim of sex discrimination, where it included factual allegations, inter alia, that Lane refused to rehire her for the 2011 construction season, though it rehired all her male co-workers, and did not hire any other female truck drivers at Lane’s Pittsburgh location.

II. Whether Connelly’s complaint was sufficient under Federal Rule of Civil Procedure 8(a)(2) to state a plausible Title VII claim of retaliation, where it included factual allegations, inter alia, that Lane rehired her for every construction season from the start of her employment until 2010, but refused to rehire her for the 2011 construction season after she complained in 2010 about a sexual advance from a male supervisor.

STATEMENT OF THE CASE

A. Statement of Facts [2]

Plaintiff Sandra Connelly was hired by Lane Construction Corp. (“Lane”) in May 2006 to be a truck driver at its Pittsburgh plant location. Am. Compl. ¶ 8. Lane employed seven truck drivers at its Pittsburgh plant. Id. at ¶ 10. Connelly is female and an experienced truck driver. Id. at ¶ 6. Connelly was the only female driver at the Pittsburgh plant for the duration of her employment. Id. at ¶ 11. From the time of her hire in 2006 through October 2010, Connelly worked during the construction seasons, from approximately March or April through October or November of every year. Id. at ¶ 6. Since Connelly, Lane has not employed any other female truck drivers at its Pittsburgh plant location. Id. at ¶ 12.

The complaint alleges that from 2007, male truck drivers cursed at Connelly and “belittled” her daily. Id. at ¶ 20. Another Lane employee, Ed Casciato, told Connelly in the summer of 2007 that truck driver Mark Nogy’s comments about Connelly were “increasingly frequent and disparaging.” Id. at ¶ 22. Connelly reported Nogy’s comments to supervisors Jeremy Hostetler (id. at ¶¶ 19, 23) and Tim Holleran. Id. at ¶ 24. Connelly also contacted Lane’s headquarter office in Connecticut (id. at ¶¶ 25-26), after which she had a meeting with two Lane executives to discuss the matter. Id. at ¶ 26. Nogy was suspended for three days. Id. at ¶ 29. After Nogy’s suspension, Connelly’s co-workers continued to harass and disparage her. Id. at ¶ 30.

In 2009, Connelly contacted the Lane Ethics line to report “further harassing treatment from Nogy.” Id. at ¶ 36. She contacted the Ethics line “numerous times” in 2009 to report “discriminatory treatment due to her gender and her previous complaints about the hostile work environment.” Id. at ¶ 38.

Then, around May 2010, Lane foreman George Manning came close to Connelly and told her “one day I’m going to kiss you.” Id. at ¶¶ 39-40. Connelly backed away, said “no,” and called Lane’s Ethics line a few days later to report the incident. Id. at ¶¶ 41-42. Connelly also reported the incident to Hostetler and requested a transfer to a different work site because she was uncomfortable working with Manning after his conduct towards her. Id. at ¶ 43. Hostetler responded with disbelief that Manning “would ‘do something like that.’” Id. at ¶ 44. Connelly then again called the Ethics Line about the Manning incident, after which Lane transferred Connelly to another job site. Id. at ¶ 45.

Connelly’s relationship with her supervisor and the male truck drivers became “increasingly strained” throughout 2010. Id. at ¶ 46. She made numerous complaints to the Ethics Line and to Lane managers at the Pittsburgh plant during this time period. Id.

In October 2010, Connelly contacted Lane executive Charlie Ames (id. at ¶

22) concerning the conduct of Lane supervisor Jerry Schmittein towards her. Id. at ¶¶ 47-48. Specifically, Schmittein “persisted in berating Connelly” after she refused to drive a truck with a flat tire and steering problems and had explained to him that she could not safely operate it. Id. When Connelly contacted Ames, he instructed her to leave her job site. Id. at ¶ 48. Afterwards, Lane “laid off” Connelly before any of the other truck drivers were “laid off” at the end of the construction season. Id. at ¶ 49. Thereafter, Lane never recalled Connelly to work. Id. at ¶ 50.

From 2006 through 2010, Lane had always recalled truck drivers in order of their seniority. Id. at ¶ 73. For the 2011 construction season, however, Lane did not recall Connelly (id. at ¶ 6), though it recalled all six of Connelly’s male co-workers. Id. at ¶ 51. Two of the drivers whom Lane recalled had less seniority than Connelly: Mike Rupart (id. at ¶ 57) and Casey Allen (id. at ¶ 59).

Around April 2011, Connelly saw several of her co-workers at a jobsite and called Ames to inquire why Lane had not recalled her. Id. at ¶ 52. He told her that the economy was bad and no work was available. Id. Connelly again spoke with Ames, asking if he was going to call her back to work. Id. at ¶ 53. He told her he would recall her if Lane “got more work.” Id. at ¶ 54. After observing her male co-workers at other Lane jobsites around April 2011, Connelly once again contacted Ames, this time to ask why truck drivers with less seniority had been recalled before her. Id. at ¶¶ 55-56. Ames replied that Lane recalled Rupart, the driver with the least seniority, to work as a general laborer because he had “needed the work.” Id. at 57-58. As to Allen, who also had less seniority than Connelly, Ames said Lane recalled him to drive the tack truck, which Connelly had not been trained on. Id. at ¶¶ 59-60. Connelly also saw that Lane was using its laborers to drive trucks, which Lane did only when no other Lane drivers were available but never when a Lane driver was waiting to be recalled. Id. at ¶¶ 67-68. Connelly also observed Lane using rental trucks from other companies at its job sites, which it only did when no Lane drivers were available but never when a Lane driver was waiting to be recalled. Id. at ¶¶ 65-66.

B. District Court Decision

In analyzing Connelly’s complaint with respect to her Title VII sex discrimination claim, the district court concluded that it sufficiently pled facts as to the first three elements of the prima facie case: that Connelly belonged to a protected class, was qualified for her position, and was subjected to an adverse employment action despite being qualified. Order at 9. The court held, however, that the complaint “failed to plead facts sufficient to raise an inference of gender discrimination” and did not plead a “plausible causal connection between her gender and Lane’s decision not to rehire her.” Id. at 9. In finding the complaint deficient as to the sex discrimination claim, the court cited the failure to “plead who at Lane made the decision to not recall her,” the absence of allegations that “Lane management was anti-female,” and the absence of allegations as to “any connection between the alleged harassers and those who made Lane’s decisions in its recall process.” Id. The district court also appears to have concluded that there was a non-discriminatory basis for Lane’s rehire of two male co-workers instead of her, despite Connelly having more seniority than both—namely that one of the men was brought back as a general laborer and the other to drive a vehicle that Connelly was not trained to operate. Id. at 10-11. The court reiterated the complaint’s “silen[ce] as to who at Lane was responsible for the alleged manipulation [of the recall process]; and whether that person had anti-female animus.” Id. at 10.

In the court’s view, there was no “plausible causal connection between the May 2010 incident of sexual harassment and the April 2011 failure to rehire” because the last incident of sex-based discrimination was in May 2010, four months before her seasonal layoff, and eleven months before the refusal to hire her back in April. Id. at 10. As for the October 2010 exchange between Connelly and her male supervisor, the court concluded that the “incident had nothing to do with gender discrimination,” but instead concerned a “safety issue.” Id.

As to Connelly’s retaliation claim, the court held that the complaint failed to “plead a causal connection between the failure to rehire Connelly in April 2011 and her alleged protected activity” because of the lack of temporal proximity. Id. at 12. In the court’s view, because Connelly’s October 2010 complaint to Lane executive Ames about the treatment she received from her male supervisor had “no gender component” but was rather a report of a safety issue, it did not constitute protected activity under Title VII. Id. at 11-12. Thus, the court calculated temporal proximity based on the lapse of time between Connelly’s May 2010 complaint of sexual harassment and Lane’s April 2011 refusal to rehire. Id. at 12. Because this lapse of time was “almost a year,” the court concluded that there was “no temporal proximity” nor evidence of any pattern of antagonism toward Connelly during that period to otherwise support a causal link. Id. The district court also construed the factual allegations in Connelly’s complaint about her sex discrimination complaints from years prior, and Lane’s continued rehire of her for the subsequent construction seasons “even after those numerous complaints,” as showing that Lane was not upset “by the information.” Id. With little discussion, the court held that further amendment of the complaint would be “inequitable and likely futile.” Id. at 13-14.

SUMMARY OF ARGUMENT

Connelly’s complaint stated plausible claims that Lane discriminated against her in violation of Title VII by refusing to rehire her because of her sex and in retaliation for her protected activity. The factual allegation that Lane rehired all of Connelly’s male co-workers for the 2011 construction season, but did not rehire her—the only female truck driver at Lane’s Pittsburgh location—demonstrates the plausibility that Lane’s decision not to rehire her was based on sex. The factual allegations that Lane rehired Connelly for prior construction seasons, but did not rehire her only after she complained about the sexual advance of a male supervisor, demonstrates the plausibility that Lane’s decision not to rehire her was in retaliation for her protected activity. The district court erred in dismissing both claims, and this Court should reverse and remand for the parties to engage in discovery.

ARGUMENT

A. Connelly’s complaint stated a plausible Title VII sex discrimination claim.

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint for failure to state a claim upon which relief can be granted. Renfro v. Unisys Corp., 671 F.3d 314, 320 (3d Cir. 2011). When analyzing a complaint challenged by a 12(b)(6) motion to dismiss, the question before this Court is “‘not whether [plaintiffs] will ultimately prevail … but whether [their] complaint was sufficient to cross the federal court's threshold.’” Id. (quoting Skinner v. Switzer, 562 U.S. 521, 131 S. Ct. 1289, 1296 (2011)). This Court reviews de novo a district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6). Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013).

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy that standard, and thereby survive a motion to dismiss, the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint need not contain “‘detailed factual allegations’” to meet the pleading standard. Id. (quoting Twombly, 550 U.S. at 555). Nor is an employment discrimination plaintiff required to plead a prima facie case in the complaint. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (holding “that an employment discrimination plaintiff need not plead a prima facie case of discrimination”).[3] Rather, a complaint, under the Supreme Court’s formulation in Twombly, must contain “‘enough factual matter (taken as true) to suggest’ the required element.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 127 S.Ct. at 1965). “This ‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element.” Id.

Though satisfaction of the prima facie case is not required for a complaint to satisfy Rule 8(a)(2), the district court in this case premised its dismissal on the insufficiency of the factual allegations as to the fourth element. For the purpose of examining the court’s analysis, the Commission sets forth the elements required to establish a prima facie case of discrimination based on sex in violation of Title VII: “(1) she was a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) members of the opposite sex were treated more favorably.” Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013) (stating that a plaintiff can also meet the last element by showing that the adverse employment action occurred under circumstances that would allow an inference of intentional discrimination). Though the district court “accept[ed] that Plaintiff has satisfied elements one, two, and three” of the prima facie elements as to a sex discrimination claim, it held that the complaint, with respect to the fourth element, “failed to plead facts sufficient to raise an inference of gender discrimination.” Order at 9. More specifically, it concluded that Connelly had “not pled any plausible causal connection between her gender and Lane’s decision not to rehire her.” Id.

Under this Court’s precedent, the fourth element may be established, at the summary judgment stage, by no further evidence beyond that showing the plaintiff was subject to less favorable treatment than a similarly situated employee outside the plaintiff’s protected category. Doe v. C.A.R.S Protection Plus, Inc., 527 F.3d 358, 366 (3d Cir. 2008) (observing that the most often used means for establishing a causal nexus between a plaintiff’s protected characteristic and adverse action is “that of disparate treatment, whereby a plaintiff shows that she was treated less favorably than similarly situated employees who are not in plaintiff’s protected class”); Torre v. Casio, Inc., 42 F.3d 825, 831-32 (3d Cir. 1994) (holding fourth prong of prima facie case satisfied with evidence that employer transferred age discrimination plaintiff who was a regional sales manager, but did not transfer younger employees who were also regional sales managers, and fired plaintiff while retaining younger employees during reduction in force); Johnson v. Keebler-Sunshine Biscuits, Inc., No. 06-3219, 2007 WL 215801, at *2 (3d Cir. Jan. 29, 2007) (unpub) (disagreeing with the district court’s conclusion that plaintiff failed to show an inference of discrimination to establish fourth element of prima facie case, holding that evidence that black male plaintiff was replaced by a white female employee satisfied that element).

Here, Connelly’s complaint contains precisely such factual allegations of disparate treatment: that Lane recalled all her male co-worker truck drivers to work during the 2011 construction season, including two male co-workers with less seniority than Connelly, but did not recall Connelly. Am. Compl. ¶¶ 51, 55, 57, 59. The complaint additionally asserts that Lane continued to refuse to recall her, even after she contacted Lane on multiple occasions around April 2011 to ask why it had not recalled her. The complaint further states that Connelly observed several of her co-workers around April and May 2011 working at a Lane job site and also observed workers at Lane job sites whom Lane would not hire while a Lane truck driver was waiting to be recalled. Such factual content is more than sufficient “‘to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element” that Connelly was treated less favorably than her male co-workers, and specifically, at least two male drivers. Phillips, 515 F.3d at 234 (quoting Twombly, 127 S. Ct. at 1965). See, e.g., Doe, 527 F.3d at 366-67 (holding prima facie case satisfied with evidence showing that other employees, including two male employees, were treated more favorably with respect to calling in sick to work than female plaintiff, who was fired). Connelly’s complaint pleaded factual allegations showing the plausibility of her sex discrimination claim, and the district court’s dismissal was error.

To the extent the district court premised its dismissal on the absence of

factual allegations showing sex-based animus, or a failure to identify which Lane employees were involved in the decision to not rehire Connelly, this was also error.

As to evidence of discriminatory animus, it was incorrect for the district court to construe the absence of such evidence as, in and of itself, fatal to her claim. Though the district court recited a correct statement of the framework for analyzing discrimination claims originating from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), its emphasis on the absence of factual allegations “that Lane management was anti-female” (order at 9) reflects a misapprehension of the framework’s function. That is because the purpose of the McDonnell Douglas burden-shifting framework is to analyze discrimination claims supported by primarily circumstantial, as opposed to direct, evidence. See, e.g., Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 581 (3d Cir. 1996) (“The McDonnell Douglas-Burdine burden-shifting framework was created because only rarely will a plaintiff have direct evidence of discrimination. Gone are the days (if, indeed, they ever existed) when an employer would admit to firing an employee because she is a woman, over forty years of age, disabled or a member of a certain race or religion. To allow those genuinely victimized by discrimination a fair opportunity to prevail, courts will presume that, once the plaintiff has shown the [prima facie] elements, unlawful discrimination was the most likely reason for the adverse personnel action.”).

Moreover, here, the complaint contains other factual allegations that support an inference of gender-based discrimination—that Connelly was the only female truck driver at the Pittsburgh plant, and that Lane employed only male truck drivers at that location after refusing to recall Connelly. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977) (noting that imbalance in the makeup of employees was probative “because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired”).

Nor has this Court required identification, in a complaint, of the

specific individuals who made the discriminatory decision at issue to adequately plead a claim. In Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), for example, this Court held that the complaint stated a plausible failure-to-transfer claim under the Rehabilitation Act, noting that the complaint’s allegations, which pled how, when, and where the employer had discriminated against the plaintiff, gave the employer notice of the factual basis for the claim. Id. at 212. This Court concluded that it had “no trouble finding that Fowler ha[d] adequately pleaded a claim for relief under the standards announced in Twombly and Iqbal,” as the complaint alleged that the plaintiff had been injured on the job, her employer regarded her as disabled, that there was an opening for a position that was available before the elimination of the position she held, that she applied for it and did not receive it, that she contacted her employer about that and other vacancies but her employer never contacted her, and the plaintiff’s belief that the employer’s actions were based on her disability. Id. In its discussion of the factual allegations that rendered the complaint sufficient, this Court did not cite any facts relating to the identity of the decisionmakers behind the decisions not to transfer the plaintiff. Id. Though that precise issue was not before this Court, declining to require such factual allegations at the pleadings stage is sensible. Facts regarding who was involved, and to what degree, in an employment decision are the type of facts that a plaintiff is not ordinarily privy to, and for which discovery is particularly well-suited to bring to light.

B. Connelly’s complaint stated a plausible Title VII retaliation claim.

The district court hinged its dismissal of Connelly’s complaint with respect to the retaliation claim on a similar basis as it did her sex discrimination claim—that the complaint failed to plead sufficient factual allegations to show causation. Order at 12. To establish a prima facie case of retaliation, a plaintiff must show “1) that she engaged in protected activity, 2) that the employer took adverse action against her, and 3) that a causal link exists between the protected activity and the employer’s adverse action.” Kachmar v. Sungard Data Sys., Inc. 109 F.3d 173, 177 (3d Cir. 1997).

This Court has rejected the proposition that evidence of close temporal proximity or retaliatory animus is required to create an inference of causation. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000) (evidence probative of a causal link “is not limited to timing and demonstrative proof, such as actual antagonistic conduct or animus. Rather, it can be other evidence gleaned from the record as a whole from which causation can be inferred.”). Instead, this Court considers “‘a broad array of evidence’” in its analysis of causation for the purpose of a retaliation claim. See Daniels v. Sch. Dist. of Phila., No. 14–1503, 2015 WL 252428, at *10 (3d Cir. Jan. 20, 2015) (quoting LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)).

Here, the district court’s causation analysis mirrors the erroneous analysis this Court discussed, and reversed, in Farrell— a mechanical examination that first surveyed the factual allegations for a showing of close temporal proximity, and in concluding there was no temporal proximity, then limited its remaining review of the complaint for allegations of a pattern of antagonism following the protected activity. Compare Order at 12, with Farrell, 206 F.3d at 278. As this Court explained in Farrell, of a district court analysis that cabined its analysis to similar categories of evidence, the district court had “viewed too narrowly the scope and nature of conduct and circumstances that could support the inference of causation.” Farrell, 206 F.3d at 278-79.

Connelly’s complaint alleges that around May 2010, Connelly reported an incident of sexual harassment by a Lane foreman to both a Lane supervisor and the Ethics line. The complaint further states that “throughout 2010” she continued to make “numerous complaints,” and that in October 2010, she called Lane executive Ames when Lane supervisor Jerry Schmittein “persisted in berating” her after she told him she could not safely operate a truck with a flat tire and steering problems. Ames then ordered Connelly to leave the job site.

Even treating Connelly’s report of sexual harassment in May 2010 as the last act of protected activity, which the district court did here, the evidence of temporal proximity is not as attenuated—eleven months—as the district court calculated. Connelly’s last day on the job was in October 2010. Connelly only worked during the construction season, which usually ended around October or November and resumed around March or April of the following year. Consequently, in this case, there is a valid reason why a retaliatory employment action could not have occurred from October 2010 through around March 2011, as this was a period during which construction was out-of-season. See Kachmar, 109 F.3d at 178 (“The element of causation, which necessarily involves an inquiry into the motives of an employer, is highly context-specific. When there may be valid reasons why the adverse employment action was not taken immediately, the absence of immediacy between the cause and effect does not disprove causation.”).

The lapse of time between Connelly’s May 2010 protected activity and October 2010 is approximately five months. After October or November 2010, the next opportunity for Lane to take an employment action against Connelly—to refuse to rehire her—would have been around March or April 2011. In concluding that there was no temporal proximity, the district court failed to account for the intervening winter months of the inactive construction season. Cf. Ford v. Gen. Motors Corp., 305 F.3d 545, 554-55 (6th Cir. 2002) (holding that evidence was sufficient to show causation, where plaintiff alleged retaliatory treatment months after filing his EEOC charge; rather than district court’s calculation of five months, stating that plaintiff’s “measure of time [wa]s more appropriate,” as adverse treatment of plaintiff began “almost immediately” after he was transferred to work under the supervisor who had managed him at the time of his EEOC filing). As in Ford, the temporal proximity in this case becomes even more immediate if, construing the allegations in the light most favorable to Connelly, her last act of protected conduct is deemed her complaint to Ames in October 2010 about the “berating” treatment she received from male supervisor Schmittein at a Lane worksite.

The plausibility of a causal link here is further supported by factual allegations concerning Lane’s stated reasons for not recalling Connelly and her own observations of Lane’s job sites, which belied those reasons. That is because a plaintiff may establish a causal connection by showing that the employer gave inconsistent reasons for the employment action. Farrell, 206 F.3d at 280-81 (stating “a plaintiff may establish the connection by showing that the employer gave inconsistent reasons for terminating the employee”; discussing this Court’s precedent acknowledging that evidence of a defendant’s inconsistent explanations may be considered for the purpose of establishing causation) (citations omitted). See also Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (discussing various methods of showing a causal link, including with evidence of inconsistent reasons given by the employer for taking the adverse action, or the employer’s treatment of other employees) (citing Farrell, 206 F.3d at 280-81).

Connelly’s complaint, for example, reflects that when she contacted Lane to ask why it had not recalled her, Lane executive Ames told Connelly that it did not recall her because “the economy was bad and no work was available,” and also said that the company would recall her “if Lane ‘got more work.’” Yet the complaint asserts that she observed that other co-workers had been recalled, including two with less seniority than she. Her complaint also asserts that Connelly observed Lane using rental trucks and Lane laborers to drive its trucks, practices which the company would only resort to if no Lane drivers were available. Those factual allegations would allow for the plausible inference that Lane indeed had truck driving work for Connelly to do, that the state of the economy was not so weak as to prevent it from hiring others to do work Connelly would ordinarily be doing, and thus, that at least two of its stated representations to Connelly concerning the recall process were not true.

From the start of Connelly’s employment with the company in 2006, Lane recalled Connelly for every subsequent construction season with one exception— the 2011 construction season, after she complained about a sexual advance from a Lane foreman in May 2010, her continued complaints “throughout 2010” (though the content and nature of these complaints is unclear from the complaint), and reporting abrasive conduct towards her by another male supervisor in October 2010. These factual allegations support the plausibility of the contention that Lane would have rehired Connelly but for her complaints in 2010.

Despite the plausibility of her retaliation claim based on those allegations, the district court erroneously narrowed its focus to several other allegations, drew unfavorable inferences from them, and on that basis, concluded that Connelly’s claim was implausible. See Phillips, 515 F.3d at 231 (discussing this Court’s “well-established standard,” preceding Twombly, for reviewing the sufficiency of a complaint, including the requirement that a court is to “‘accept all well-pleaded allegations in the complaint as true and to draw all reasonable inferences in favor of the non-moving party’”; noting that the Supreme Court in Twombly reaffirmed that facts alleged must be taken as true and, as to drawing reasonable inferences, stating that this Court does not read Twombly to “undermine that principle”) (citations omitted).

The district court highlighted the allegations that Connelly had repeatedly complained in years prior, and that Lane had continued to rehire her. Order at 12. It then construed those allegations to “reflect[] that Lane did not retaliate for her past complaints” and “[t]here was no indication that Lane management was upset by the information.” Id. The district court also cited the complaint’s allegations that Lane transferred her to a different worksite in 2010 and suspended a male co-worker in 2007 “for his behavior” as additional bases that undermined Connelly’s retaliation claim. Id.

Those allegations, however, would nonetheless allow for another inference: that Connelly’s repeated complaints of sex discrimination over the years, and particularly in 2010, led to mounting retaliatory animus on the part of Lane. In Kachmar, for example, the plaintiff alleged that her employer retaliated against her by firing her in 1994, after she had complained multiple times in 1992 about personnel decisions regarding female and minority employees and in mid-1993 had advised that a manager be counseled concerning his treatment of women. Kachmar, 109 F.3d at 175-176. In 1993, at her annual review, her manager told her she was not “on ‘the management track’ because of her ‘conduct’” and criticized her “‘campaigning on women’s issues.’” Id. at 176. In October 1993, when the plaintiff sought advice from a Human Resources manager concerning her relationship with her manager, she was advised to begin looking for a job elsewhere. Id. This Court observed that it was a “difficult factual question” as to whether her complaints were the cause of her termination, but concluded that “[b]ecause the facts viewed in the light most favorable to Kachmar would support an inference of retaliation, her complaint states a colorable claim as to which she is entitled to further factual development.” Id. at 179.

Here, Connelly’s complaint alleges that in 2010, her “relationship with her supervisors and the male truck drivers became increasingly strained.” Am. Compl. ¶ 46. In addition, unlike Connelly’s complaints in 2007, 2008, and 2009, all of which concerned co-workers, at least two of her complaints in 2010 were about Lane supervisors. Id. at ¶¶ 14-17, 20-23 (complaints in 2007), ¶¶ 32-33 (complaints in 2008), ¶¶ 36-38 (complaints in 2009). In May 2010, for example, she reported that a Lane foreman had made a sexual advance. Id. at ¶¶ 39-44. Then in October 2010, she complained about the “berating” treatment she received from a male supervisor, shortly after which Lane laid her off in advance of all the other drivers “despite her seniority.” Id. at ¶¶ 47-49. In 2010, she also “made numerous complaints to the Ethics Line and directly to Lane management.” Id. at ¶ 46. These allegations would permit the inference that Connelly’s succession of complaints, concentrated in 2010, and now concerning Lane supervisors, led to a gradual escalation of retaliatory animus that first surfaced in Lane’s lay off of Connelly before the other truck drivers in 2010 and culminated in its refusal to rehire her in 2011.

CONCLUSION

The sufficiency of a complaint does not turn on whether it is comprehensive in its factual detail, but whether the factual allegations state a plausible claim. See Fowler, 578 F.3d at 212 (stating that though the plaintiff’s complaint was “not as rich with detail as some might prefer, it need only set forth sufficient facts to support plausible claims”). The factual allegations of Connelly’s complaint demonstrate the plausibility of her claims that Lane discriminated against her by failing to rehire her for the 2011 construction season because she was female, and because she made at least one complaint about the sexual advance of a male supervisor during the 2010 construction season. This Court should reverse the dismissal of Connelly’s amended complaint as to her Title VII claims and remand for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/ Christine J. Back_______________

CHRISTINE J. BACK

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M Street, NE, Fifth Fl.

Washington, DC 20507

(202) 663-4734

christine.back@eeoc.gov

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, I certify that this brief was prepared with Microsoft Office Word 2007, and that it uses the proportionally spaced Times New Roman font, size 14 point. I further certify that this brief contains 5,742 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Office Word 2007 word-count function. Pursuant to Third Circuit Local Appellate Rule 31.1(c), I also certify that the text of the electronic brief is identical to the text of the paper copies, that the electronic brief was scanned with the virus detection program Trend Micro OfficeScan Agent Version 11.0, and that no virus was detected.

s/ Christine J. Back_____

CHRISTINE J. BACK

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Fifth Fl. Washington, DC 20507

(202) 663-4734

christine.back@eeoc.gov

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Pursuant to Third Circuit Local Appellate Rule 28.3(d), I certify that I am a federal attorney. In this Court, bar admission is waived for federal attorneys.

February 24, 2015 s/ Christine J. Back

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I, Christine J. Back, hereby certify that I filed the foregoing amicus brief electronically in PDF format with the Court via the ECF system on this 24th day of February, 2015. I further certify that I served the foregoing amicus brief electronically in PDF format through the ECF system this 24th day of February 2015, to all counsel of record. Pursuant to Third Circuit Local Appellate Rule 31.1, I also certify that ten paper copies of this brief will be mailed to the Court on this 24th day of February, 2015.

s/ Christine J. Back________________

CHRISTINE J. BACK

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COMMISSION

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[1] The Commission expresses no opinion on any other issues presented in this appeal.

[2] These factual statements are allegations contained in Connelly’s First Amended Complaint.

[3] This Court in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), when discussing the import of Twombly and Iqbal, construed those cases to “specifically repudiate[e]” Swierkiewicz, “at least insofar as it concerns pleading requirements and relies on Conley [v. Gibson, 355 U.S. 41 (1957)].” Fowler, 578 F.3d at 211. While the exact import of this Court’s discussion in Fowler is unclear, the Supreme Court, in neither its Iqbal nor Twombly decision, stated any rejection of Swierkiewicz. In Twombly, for example, the Supreme Court addressed the contention that its analysis was counter to Swierkiewicz by explaining that its holding was consistent with that case. Twombly, 550 U.S. at 569-70 (stating that it was not requiring a heightened fact pleading standard rejected by Swierkiewicz, but was instead holding that a pleading must contain “only enough facts to state a claim to relief that is plausible on its face”). Since then, the Supreme Court has continued to approvingly cite Swierkiewicz in its analysis of pleadings. See, e.g., Johnson v. City of Shelby, Mississippi, 135 S.Ct. 346, 347 (2014) (reviewing the Fifth Circuit’s analysis of a complaint and citing Swierkiewicz to observe that “imposing a ‘heightened pleading standard in employment discrimination cases conflicts with Federal Rule of Civil Procedure 8(a)(2)’”) (quoting Swierkiewicz, 534 U.S. at 512).