TABLE OF CONTENTS INTRODUCTION 1098 I. THE PLEADING STANDARD 1100 A. Plausibility Pleading Under Twombly and Iqbal 1101 B. Pleading Employment Discrimination 1104 1. Did Twombly and Iqbal Overrule Swierkiewicz? 1105 2. The Port Authority Case 1109 II. FILING SUIT FOR EMPLOYMENT DISCRIMINATION 1110 A. The Role of the EEOC 1110 B. Administrative Hurdles 1111 C. When the EEOC Files Suit on a Plaintiff's Behalf 1112 III. THE INEVITABLE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 1114 A. Revisiting the Rationale for Plausibility Pleading 1115 B. The Case Against Granting the Motion to Dismiss 1118 CONCLUSION 1121 INTRODUCTION
A group of female attorneys, living the reality of the gender wage gap in the United States, (1) sue their employer for discriminatory practices in compensation. (2) The United States Equal Employment Opportunity Commission (EEOC) launches a full-scale investigation into the claim, (3) issues a determination that the employer committed illegal acts of discrimination, (4) and engages in failed conciliation efforts with the employer. (5) Deeming the case a litigation priority, the EEOC chooses to expend limited administrative resources by filing suit on the plaintiffs' behalf. (6) Despite the EEOC's efforts, the United States District Court for the Southern District of New York dismisses the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), (7) a decision that the United States Court of Appeals for the Second Circuit affirms. (8) The case is EEOC u. Port Authority of New York & New Jersey, (9) and, with thanks to the Supreme Court's "plausibility" pleading standard, (10) it represents the latest episode of the steep hurdle that employment discrimination plaintiffs must overcome when they face the now inevitable motion to dismiss under Rule 12(b)(6). (11)
This Note takes issue with the dismissal of the EEOC's pleadings for failure to state a claim under Rule 12(b)(6) (12) and suggests that the policy rationale underlying plausibility pleading points against dismissal when the EEOC files suit on a plaintiff's behalf. (13) More specifically, this Note argues that the policy concerns that drove the establishment of plausibility pleading in Bell Atlantic Corp. v. Twombly (14) and its reaffirmation in Ashcroft u. Iqbal (15)--concerns about dragging defendants into expensive and frivolous litigation (16)--lack particular force when the EEOC files suit on a plaintiff's behalf. Plaintiffs alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 and other statutory schemes must exhaust their administrative remedies with the EEOC before filing suit in federal court. (17) By choosing to expend limited administrative resources in pursuing litigation, the EEOC operates as an effective gatekeeper. (18) Not only will such employment discrimination plaintiffs have exhausted their administrative remedies with the EEOC, but also the EEOC will have issued a determination of fault regarding the alleged unlawful employment action and will have made the affirmative decision to represent the plaintiff in federal court. (19) In those cases, the risk of dragging defendant employers into frivolous lawsuits should be significantly diminished. (20) The fact that the EEOC has decided to file on a plaintiff's behalf should weigh strongly in favor of plausibility when courts consider whether the EEOC's pleadings survive a motion to dismiss under Rule 12(b)(6). (21) Accordingly, this Note suggests that the EEOC's pleadings are entitled to deferential review at the 12(b)(6) stage when it files on a plaintiff's behalf.
This Note proceeds in three main Parts. Part I discusses the plausibility standard generally. It then surveys the current split among the circuit courts of appeals regarding the status of pre-Twombly precedent governing pleadings in employment discrimination cases. Part II overviews the procedural role of the EEOC in employment discrimination suits. Part III explains why the motion to dismiss for failure to state a claim under Rule 12(b)(6) in employment discrimination actions has become inevitable, and revisits the policy rationale underlying the plausibility standard. Part III then suggests that the motion to dismiss has improperly replaced the motion for summary judgment in the employment discrimination context, allowing courts to evaluate the merits of a plaintiff's lawsuit before a plaintiff is able to obtain key facts in his or her favor through discovery. Finally, it argues that the policy rationale behind plausibility pleading points strongly against granting an employer's motion to dismiss when the EEOC files suit on behalf of a plaintiff because the EEOC's function as a gatekeeper prevents meritless suits from being filed in the first place.
THE PLEADING STANDARD
This Part details the establishment of the plausibility standard in Twombly (22) and its application to all civil cases in Iqbal (23) with a particular focus on the policy rationale that motivated the Supreme Court in those cases. It then discusses the applicability of plausibility pleading in employment discrimination cases and reviews the status of pre-Twombly precedent governing the pleading standard in employment discrimination cases in a post-Twombly world. Finally, Part I introduces the facts in Port Authority, this Note's illustrative case. (24)
Plausibility Pleading Under Twombly and Iqbal
Perhaps no two decisions in the past decade have had a greater effect on the mechanics of federal pretrial civil litigation than Twombly and Iqbal. (25) In Twombly, the Court established a heightened pleading standard, requiring that a plaintiff plead sufficient facts to make his or her claim plausible--not merely possible or conceivable. (26) The Court affirmed the plausibility standard in Iqbal, "transform [ing] civil litigation in federal courts" by permitting courts to dismiss lawsuits with relative ease for failure to state a claim under Rule 12(b)(6). (27)
Before the Court announced the plausibility standard in Twombly and confirmed its application to all civil cases in Iqbal, federal courts dismissed complaints for failure to state a claim under Rule 12(b)(6) under the "no set of facts" standard set forth in Conley v. Gibson. (28) In Conley, the Court held that a plaintiff need only plead a "short and plain statement of the claim" under Rule 8(a)(2) to put the defendant on notice of the lawsuit to survive a motion to dismiss under Rule 12(b)(6). (29)
Citing concern with overloaded federal dockets and the increased filing of frivolous lawsuits, (30) the Court in Twombly and Iqbal all but abandoned the liberal "notice pleading" standard. (31) Holding that a plaintiff's complaint must state a claim that is "plausible on its face," the Court set a high bar for plaintiffs seeking relief in federal court. (32) The plausibility standard proves particularly cumbersome in the employment discrimination context, in which plaintiffs are very rarely able to cite detailed facts to support their claims for relief. (33) Since Twombly and Iqbal, it has become a regular--and often successful--practice for defendants charged with employment discrimination to file motions to dismiss for failure to state a claim under Rule 12(b)(6). (34)
Some courts have held that Twombly and Iqbal implicitly overruled Swierkiewicz v. Sorema N.A., the unanimous ruling in which the Court held that plaintiffs need not plead a prima facie case of discrimination to survive a motion to dismiss. (35) The holding in Swierkiewicz had the effect of permitting a plaintiff to proceed to discovery to bolster his or her claim for discrimination, so long as the plaintiff's complaint passed the relatively low bar under Conley. (36) Reasoning that the Court decided Swierkiewicz before it established the more stringent plausibility standard, those courts have held that a plausible employment discrimination complaint must be one that states a prima facie case (37) under the burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green (38)
In announcing the plausibility standard, the Court in Twombly was particularly concerned that the "notice pleading" standard under Conley had led to overcrowded federal dockets. (39) Under the Court's rationale, the Conley standard permitted plaintiffs to file frivolous lawsuits in federal court, allowing plaintiffs to drag defendants into expensive litigation, opening the discovery floodgates and forcing defendants to settle weak cases. (40) The Twombly Court took great pains to criticize the practical effect of Conley: "On such a focused and literal reading of Conley's 'no set of facts,' a wholly conclusory statement of the claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some 'set of [undisclosed] facts' to support recovery." (41)
The Court in Iqbal explicitly declined to narrow the holding in Twombly to apply only in antitrust actions, announcing that the plausibility standard "expounded the pleading standard for 'all civil actions,' and it applies to antitrust and discrimination suits alike." (42) Justice David Souter, the author of the majority opinion in Twombly, dissented in Iqbal, arguing that the Iqbal majority misread the holding in Twombly and incorrectly applied the plausibility standard. (43) Justice Stephen Breyer also authored a vigorous dissent in Iqbal, criticizing the Court's rationale for expanding plausibility pleading to all civil actions. (44) In particular, Justice Breyer foresaw the difficulty that the plausibility standard would present to plaintiffs whose claims depend on greater fact-finding through the discovery process, and argued that district courts have internal mechanisms at their disposal to prevent frivolous suits from proceeding to discovery. (45)
Pleading Employment Discrimination
Discerning the specific requirements for satisfying the plausibility...