Page(s)

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009).......................................................... 9–11

Beck v. United Food & Commercial Workers Union Local 99,
506 F.3d 874 (9th Cir. 2007).......................................................................... 14

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).................................. 8–11

Brown v. Daikin America Inc., 756 F.3d 219 (2d Cir. 2014)........................... 14

Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010), aff’d, 566 U.S. 30 (2012)...................................................................... 9, 10, 15

Erickson v. Pardus, 551 U.S. 89 (2007)............................................................... 8

Estelle v. Gamble, 429 U.S. 97 (1976)................................................................. 8

Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978)................................................. 8

Hawn v. Executive Jet Management, Inc., 615 F.3d 1151
(9th Cir. 2010)................................................................................................. 14

Jehovah v. Clarke, 798 F.3d 169 (4th Cir. 2015)................................................ 8

King v. Rubenstein, 825 F.3d 206 (4th Cir. 2016).............................................. 8

Mayle v. Felix, 545 U.S. 644 (2005)..................................................................... 8

McCleary–Evans v. Maryland Department of Transportation, State Highway Administration, 780 F.3d 582 (4th Cir. 2015)...................... 10, 11

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)................................ 10

Miles v. Dell, 429 F.3d 480 (4th Cir. 2005)....................................................... 10

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).............. 11

Smith v. Smith, 589 F.3d 736 (4th Cir. 2009).................................................... 8

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).......................................... 10

Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981)............................................................................................................... 10

Woods v. City of Greensboro, ___ F.3d ___, 2017 WL 1754898
(4th Cir. May 5, 2017)........................................................................ 10, 11, 14

Statutes and Rules

Civil Rights Act of 1964, Title VII, 42 U.S.C. §§ 2000e–2000e-17................... 1

Federal Rule of Appellate Procedure 29............................................................. 1

Federal Rule of Civil Procedure 8(a)(2)............................................................... 7

Federal Rule of Civil Procedure 12(b)(6).................................................... 11, 14

Statement of Interest

Congress directed the Equal Employment Opportunity Commission to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, as amended, and other federal laws prohibiting employment discrimination. The Commission can sue to enforce Title VII, but since its resources are limited, the vast majority of Title VII lawsuits are brought by employees and applicants acting as private attorneys general, many of them proceeding pro se. Effective enforcement of Title VII thus requires that courts not dismiss such pro se complaints when the plaintiffs may have valid claims. Accordingly, pursuant to Federal Rule of Appellate Procedure 29, the Commission offers its views.

Statement of the Issue[1]

Did the district court err by applying too stringent a legal standard in dismissing the plaintiff’s pro se complaint for failure to state a claim?

Statement of the Case

A. Procedural Summary

The plaintiff, Raykisha Morrison, filed a pro se complaint in September 2016, alleging that she had been subjected to a hostile environment, terminated based on her race and sex, and retaliated against for complaining about discrimination. R-1. She filed an amended complaint in December 2016. R-20.

The defendant, Resource Management Concepts (“RMC”), moved to dismiss for failure to state a claim. R-5, R-21. The district court granted that motion on March 21, 2017. R-24. Morrison filed a timely appeal. R‑26.

B. Allegations in Morrison’s Complaints

Morrison filed her initial pro se complaint using the district court’s “EEOC Complaint” form. She attached a five-page single-spaced narrative setting forth many detailed factual allegations. R-1, Exh. 1.

Four months later, Morrison filed an amended complaint that did not utilize the court’s standard form. The amended complaint contained the following factual allegations:

1. RMC hired Morrison, a black woman, in February 2013 as an occupational safety and health specialist. R-20, p. 2, ¶ 6. She worked in RMC’s Environmental and Safety Division under her supervisor, Cyndi Palfrey. In about December 2014, Brent Elrod replaced Palfrey as Morrison’s supervisor. Palfrey and Elrod were both white. R-20, p. 2, ¶ 7. Elrod began to criticize Morrison for not completing assignments, missing team meetings, and being unresponsive to her clients, but these accusations were untrue. R-20, p. 2, ¶ 10.

2. On April 6, 2015, Morrison received her annual performance review for 2014. R-20, p. 2, ¶ 11. Elrod had written the review even though he had supervised her for only one month during that year. R 20, p. 2, ¶ 11. The review stated that Morrison’s performance met RMC’s expectations, but it also contained three criticisms: that her written responses to customers and peers sometimes had an unprofessional and confrontational tone, that she did not respond promptly to Elrod’s calls, and that she failed to attend some of the scheduled team meetings. R-20, p. 2, ¶ 12.

3. Elrod and Ginny Silvestro from HR discussed this performance review with Morrison by phone that day and placed her on a performance improvement plan (“PIP”). R-20, p. 2, ¶¶ 13–14. During that call Morrison disputed Elrod’s criticisms, pointing out that she had been performing the same duties for two and a half years and no one had ever told her before that she had a negative tone in her communications with customers or co-workers. R-20, pp. 2–3, ¶ 14. She also told Elrod and Silvestro that she could provide them copies of emails Elrod had sent her canceling the meetings she had supposedly “missed.” R-20, p. 3, ¶ 14.

4. Morrison told Elrod and Silvestro that she believed that Elrod’s criticisms of her tone sprang from misperceptions based on her race and sex. R-20, p. 3, ¶ 15. She also told Elrod that she would modify her tone, but she needed him to give her examples of that inappropriate tone so she would know what she needed to correct. Elrod gave her no specific examples then or later. R-20, p. 3, ¶ 16.

5. Fifteen days later, Silvestro called Morrison to follow up on her (Morrison’s) concerns. R-20, p. 3, ¶ 17. Morrison told Silvestro that Elrod should not have written the performance review (because he had supervised her for only one month of that year) and that his criticisms of her tone were based on misperceptions due to her race and sex. She told Silvestro that she believed Elrod was “trying to get rid of [her].” R 20, p. 3, ¶ 17.

6. Elrod met with Morrison on June 6, 2015, to discuss her progress on the April 6 PIP. Elrod told her that he “did not have any more comments for [her] about [her] performance.” R-20, p. 4, ¶ 18.

7. Morrison was treated less favorably in the demands made on her and in the discipline she received than Don Durnill and Stephen Smith, her co-workers, who were white males but otherwise similarly situated. R-20, pp. 5–6, ¶ 27.[2]

8. Morrison was asked to give two presentations in August 2015 using PowerPoint slides prepared by someone else. R-20, p. 4, ¶ 19. Morrison received a set of slides ahead of time but no training on how to discuss them. More importantly, when she gave her first presentation, she discovered that some slides had been altered, some were deleted, and some contained incorrect information. She had not been warned about these changes. R-20, p. 4, ¶ 19. Later, when she explained these problems to Elrod, he told her it “wasn’t her fault since [she] didn’t create the presentation.” R-20, p. 4, ¶ 19. The second presentation “went well.” R-20, p. 4, ¶ 19.

9. On November 2, 2015, Elrod told Morrison he was terminating her because her August presentations had been poorly done and RMC had received negative comments about her from all of her clients. R-20, p. 4, ¶ 20.

C. District Court Decision

The district court dismissed Morrison’s sex- and race-discrimination claims with prejudice because her complaint failed to establish a prima facie case for either claim. R-24, p. 4. The court first ruled that the complaint failed to allege facts showing that she had been performing her job satisfactorily. R-24, pp. 4–5. “There are not allegations,” the district court stated, “that the Plaintiff was told by any of her supervisors at RMC that her performance met their expectations.” R-24, p. 4. Instead, the court explained, her complaint established that RMC repeatedly criticized her performance and that she failed to improve her performance in response to those criticisms. R-24, pp. 4–5.

Second, the court found that Morrison failed to allege that “others outside of the protected class who were similarly situated were treated more favorably.” R-24, p. 5. Rather, the court stated, Morrison “merely alleges in vague and conclusory terms that she was treated ‘differently from, and less preferably than’ two ‘similarly-situated’ non-African American male employees, Don Durnill and Stephen Smith.” R-24, p. 5. According to the court, this allegation “fail[ed] to establish a plausible basis for believing that these two employees were actually similarly situated or that Plaintiff’s race and/or sex was the basis for her termination.” R-24, p. 5.

Argument

Morrison’s pro se amended complaint, construed favorably, stated plausible discrimination claims, and the district court therefore erred in dismissing it for failure to state a claim.

A. The district court erred in failing to construe Morrison’s pro se complaint liberally, as this Court requires.

In any civil case, Rule 8(a)(2) requires only 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). This requirement serves two purposes: it ensures that the defendant has “fair notice of what the plaintiff’s claim is and the grounds upon which it rests” (so the defendant can prepare a defense). Mayle v. Felix, 545 U.S. 644, 655 (2005). It also protects the defendant from having to defend itself, or even respond to discovery requests, when the complaint fails to state a plausible claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–60 (2007) (so holding).

In this case, since Morrison was acting pro se, the law required the district court to construe her complaint liberally. “‘[L]iberal construction of the pleadings is particularly appropriate,’” this Court has stated, “‘where, as here, there is a pro se complaint raising civil rights issues.’” Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015) (quoting Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009)); see also, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]’” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (same).

Although the district court noted this rule briefly, R-24, p. 3 (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)), it did not apply it. Instead, it focused its attention on a long list of caveats and limitations to the liberal-construction rule that are largely inapposite to Morrison’s complaint. Id. at 3–4. In so doing, the court allowed the limitations to swallow the rule.

B. The district court erred in requiring Morrison to state a prima facie case in her complaint.

The district court applied an overly stringent standard to Morrison’s pro se complaint in ruling that it failed to state a claim for race or sex discrimination. Athough the district court correctly began its analysis with Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), it erred by requiring Morrison to plead a prima facie case of discrimination. R-24, pp. 4–5 (listing the elements of a prima facie case and finding Morrison’s complaint insufficient because it “fails to allege facts that establish” the second prima facie element, “satisfactory job performance,” or the fourth element, more favorable treatment of similarly situated co-workers).[3]

In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002), the Supreme Court held that a discrimination plaintiff need not plead a prima facie case in her complaint. This Court has repeatedly ruled that this holding remains good law after Twombly and Iqbal. See Woods v. City of Greensboro, ___ F.3d ___, 2017 WL 1754898, at *6–7 (4th Cir. May 5, 2017) (a discrimination plaintiff “need not plead facts sufficient to establish a prima facie case . . . to survive a motion to dismiss”); M cCleary–Evans v. Md. Dep’t of Transp., 780 F.3d 582, 585 (4th Cir. 2015) (“[T]he district court erred in its analysis by requiring [the plaintiff] to plead facts establishing a prima facie case of discrimination to survive a motion to dismiss.”); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (same), aff’d on other grounds, 566 U.S. 30 (2012).

While it is not necessary for a plaintiff to allege a prima facie case, Iqbal and Twombly establish that a district court may dismiss a complaint under Rule 12(b)(6) if it fails to allege facts that render the plaintiff’s claim plausible. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570; Woods, 2017 WL 1754898, at *6. One way Morrison could state a plausible discrimination claim is by alleging that RMC’s proffered reason for firing her—failure to meet the company’s performance expectations—was untrue and therefore a pretext for discrimination. See, e.g., McCleary–Evans, 780 F.3d at 588 (complaint fails to state a plausible claim if it fails to eliminate the “‘obvious alternative explanation’” for the adverse action (quoting Iqbal, 556 U.S. at 682)); cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (“Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.”). Morrison’s complaint made specific factual allegations showing that she was performing her duties satisfactorily and that Elrod’s stated reasons for firing her were pretextual. The complaint therefore stated a plausible claim of discrimination.

C. The district court erred in ruling that Morrison’s complaint failed to allege satisfactory performance.

The district court ruled that Morrison’s complaint failed to allege satisfactory performance. The court stated that Morrison’s complaint contained no “allegations that the Plaintiff was told by any of her supervisors at RMC that her performance met their expectations.” R-24, p. 4. But the amended complaint states that in April 2015 Morrison’s supervisor, Brent Elrod, gave her an annual performance evaluation “finding [her] quality of work and efficiency to meet expectations.” R-20, p. 2, ¶ 12. Moreover, according to the complaint, when Elrod met with Morrison in early June 2015 to review her progress in implementing the PIP, he told her he had no criticisms of her performance. R-20, p. 4, ¶ 18.

In addition, the complaint contains specific factual allegations challenging the credibility of Elrod’s criticisms of Morrison’s performance. For example, the complaint acknowledges that Elrod criticized Morrison for purportedly displaying “an unprofessional and confrontational tone/approach in written response to customers and peers.” R-20, p. 2, ¶ 12. The complaint further states, however, that when Morrison asked Elrod to give her examples of her problematic tone and approach so that she could correct them, he never gave her any. R-20, p. 3, ¶ 16.[4] Also, according to the complaint, Elrod criticized Morrison for “fail[ing] to attend scheduled team meetings,” R-20, p. 2, ¶ 12, but the complaint indicates that Morrison had emails from Elrod “notifying [her] that he had cancelled the meetings [she] supposedly missed.” R-20, p. 3, ¶ 14.

Morrison’s complaint thus contained a number of specific factual allegations that showed that her supervisor believed she was meeting RMC’s expectations and questioned the credibility of his criticisms of her. The district court therefore erred in dismissing her complaint because it failed to allege satisfactory performance.

D. The district court erred in deeming insufficient Morrison’s allegations about similarly situated comparators.

The district court also applied an overly stringent standard to Morrison’s allegations that two white male coworkers, Don Durnill and Stephen Smith, were similarly situated to her but treated more favorably. In the context of pleading that comparators are similarly situated, this Court has emphasized that “evidentiary determinations regarding whether the comparators’ features are sufficiently similar to constitute appropriate comparisons generally should not be made [on a Rule 12(b)(6) motion]. . . . The similarly situated analysis typically occurs in the context of establishing a prima facie case of discrimina- tion, not at the 12(b)(6) stage.” Woods, 2017 WL 1754898, at *9. See also, e.g., Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (“similarly situated” is ordinarily not “a legal question to be resolved on a motion to dismiss”); Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010) (“‘[W]hether two employees are similarly situated is ordinarily a question of fact.’” (quoting Beck v. United Food Workers Union Local 99, 506 F.3d 874, 885 n.5 (9th Cir. 2007))).

The allegations in Morrison’s pro se complaint regarding Durnill and Smith—allegations that, again, should be construed liberally—were not so vague or conclusory as to warrant dismissal under Rule 12(b)(6). The complaint did not merely state that Morrison was treated less favorably than two unidentified co-workers of a different race or sex. Rather, it named the specific co-workers, and it stated that the less favorable treatment took the form of “discriminatory disciplinary decisions” and “unfair job demands.” RMC cannot credibly maintain that it did not have notice of the nature of Morrison’s claim, given the specificity with which she identified her two comparators, who plainly would have been known to the company in all relevant respects.[5] RMC may argue that Durnill and Smith are not valid comparators, but these allegations would raise factual issues that should not be resolved on a motion to dismiss.

The allegations in Morrison’s complaint also differ materially from those in Coleman, on which the district court relied. R-24, p. 5. In his race discrimination complaint, Coleman, who was black, named his white supervisor, Frank Broccolina, as his comparator. 626 F.3d at 189 (“Coleman was supervised by Frank Broccolina”), 191 (Coleman named Broccolina as his comparator). Thus, when the Coleman Court stated that “the complaint fails to establish a plausible basis for believing Broccolina and Coleman were actually similarly situated,” id. at 191, it reached that conclusion with Broccolina’s and Coleman’s different job statuses in plain view. Morrison, on the other hand, named two specific coworkers as comparators, and the complaint disclosed no reason to think they were not similarly situated.

Conclusion

Accordingly, this Court should vacate the district court’s order dismissing Morrison’s complaint and remand for further proceedings.

Respectfully submitted,

[1] The Commission takes no position on any other issues this appeal may raise.

[2] In the factual narrative attached to Morrison’s original complaint, she stated that she worked on a team of three employees, and the other two employees on her team were Durnill and Smith. R-1-1, pp. 4, 7.

[3] In this Court, a plaintiff lacking direct evidence of discrimination must ordinarily show: “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d on other grounds, 566 U.S. 30 (2012). The prima facie case serves to “‘eliminate[ ] the most common nondiscriminatory reasons’” for the challenged adverse action. Miles v. Dell, Inc., 429 F.3d 480, 488 n.5 (4th Cir. 2005) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). This purpose can sometimes be served without establishing all four elements of the prima facie case. Id. at 486–89; id. at 486–87 (the “prima facie case requirements are ‘not necessarily applicable in every respect to differing factual situations’” (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973))).

[4] Since Elrod was criticizing the tone of Morrison’s written communications, R-20, p. 2, ¶ 12, it should have been easy for him to find examples he judged inappropriate.

[5] Moreover, the statement Morrison attached to her original complaint explained that Durnill and Smith were her two co-workers on a three-person team. R-1-1, pp. 4, 7. This supports Morrison’s allegation that she and they were similarly situated.