McCleary-Evans v. Maryland Department of Transportation, State Highway Administration

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2488

DAWNN MCCLEARY-EVANS,

Plaintiff - Appellant,

v.

MARYLAND DEPARTMENT OF TRANSPORTATION, STATE HIGHWAY
ADMINISTRATION,

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:13-cv-00990-CCB)

Argued: December 9, 2014 Decided: March 13, 2015

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the
majority opinion, in which Judge Diaz joined. Judge Wynn wrote
a separate opinion dissenting in part.

ARGUED: John Henry Morris, Jr., LAW OFFICE OF JOHN H. MORRIS,
JR., Baltimore, Maryland, for Appellant. DeNisha A. Watson,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee. ON BRIEF: Douglas F. Gansler, Attorney General
of Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellee.
NIEMEYER, Circuit Judge:

Dawnn McCleary-Evans commenced this action against the

Maryland Department of Transportation’s State Highway

Administration, alleging that the Highway Administration failed

or refused to hire her for two positions for which she applied

because of her race (African American) and her sex (female), in

violation of Title VII of the Civil Rights Act of 1964,

specifically 42 U.S.C. § 2000e-2(a)(1). In her complaint, she

alleged that she was highly qualified for the positions, but

that the decisionmakers were biased and had “predetermined” that

they would select white candidates to fill the positions.

The district court granted the Highway Administration’s

motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), concluding that the complaint failed to

allege facts that plausibly support a claim of discrimination.

Because we agree that McCleary-Evans failed to include adequate

factual allegations to support a claim that the Highway

Administration discriminated against her because she was African

American or female, we accordingly affirm. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face’” (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007))).

2
 I

McCleary-Evans worked for over 20 years as a project

manager on environmental regulatory compliance projects while

employed at the Maryland Department of Natural Resources and the

Maryland Transit Administration. In late 2009 and early 2010,

she applied for two open positions in the Highway

Administration’s Environmental Compliance Division, interviewing

first for a position as an assistant division chief and later

for a position as an environmental compliance program manager.

Despite her prior work experience and education, which she

alleged made her “more than qualified” for the two positions,

she was not selected for either position. Instead, as the

complaint asserted, “The positions in question were filled by

non-Black candidates.”

McCleary-Evans’ claim that the Highway Administration did

not hire her “because of the combination of her race and gender”

relies essentially on two paragraphs of her complaint. In one,

she alleged that her applications were “subject to a review

panel significantly influenced and controlled by . . . Gregory

Keenan, a White male in the Office of Environmental Design

(‘OED’) who worked under the supervision of OED Director, Sonal

Sangahvi, a non-Black woman,” and that “[d]uring the course of

her interview, and based upon the history of hires within

OED, . . . both Keenan and Sangahvi predetermined to select for

3
both positions a White male or female candidate.” In the other

paragraph, she similarly alleged that, “although African

American candidates had been among the selection pool,” “Keenan

and Sangahvi, for reasons of race and gender, overlooked the

African American candidates to select White male, preferably,

and White female candidates.” In short, she claimed in

conclusory fashion that the decisionmakers were biased when

making the decision. And the complaint did not include any

allegations regarding the qualifications or suitability of the

persons hired to fill the two positions.

In dismissing her claim, the district court concluded that

McCleary-Evans had failed to “allege facts that plausibly

support a claim of discrimination.” The court reasoned that

because this was a case with “no direct evidence of

discrimination,” McCleary-Evans needed to allege facts

sufficient to “state a prima facie case of discrimination for

failure to hire by showing: (1) that she is a member of the

protected class; (2) that the employer had an open position for

which she applied or sought to apply; (3) that she was qualified

for the position; and (4) that she was rejected under

circumstances giving rise to an inference of unlawful

discrimination.” It noted that, while McCleary-Evans had

sufficiently alleged the first three prongs of the prima facie

case, she had not “stated facts sufficient to meet the pleading

4
requirements as to the fourth prong.” Her complaint, the court

said, “offer[ed] nothing to support her conclusory assertions

[of discrimination] beyond an unsubstantiated mention of ‘a

history of hires’ within the division[] and statements

identifying her race, the races of the two members of the hiring

review panel, and the races of the two applicants hired for the

positions.” The court concluded that, “[b]ecause discrimination

cannot be presumed simply because one candidate is selected over

another candidate, McCleary-Evans ha[d] not pled adequate facts

to give rise to a reasonable inference of discrimination.”

From the district court’s order dismissing her complaint,

McCleary-Evans filed this appeal.

II

McCleary-Evans contends that the district court imposed on

her a pleading standard “more rigorous” than Swierkiewicz v.

Sorema N.A., 534 U.S. 506 (2002), allows, by analyzing her claim

under the standard set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), for proving a prima facie case of

discrimination. She maintains that the “District Court’s

decision fails to demonstrate the deficiency of the Complaint as

a pleading, but rather offers authority that only works as a

challenge to demonstrate deficiency as evidentiary proof.”

(Emphasis added).

5
 In Swierkiewicz, the Supreme Court held that “an employment

discrimination plaintiff need not plead a prima facie case of

discrimination . . . to survive [a] motion to dismiss,” 534 U.S.

at 515, because “[t]he prima facie case . . . is an evidentiary

standard, not a pleading requirement,” id. at 510, that may

require demonstrating more elements than are otherwise required

to state a claim for relief, id. at 511-12. The Court stated

that requiring a plaintiff to plead a prima facie case would

amount to a “heightened pleading standard” that would conflict

with Federal Rule of Civil Procedure 8(a)(2). Id. at 512. As

the Court explained:

[I]t is not appropriate to require a plaintiff to
plead facts establishing a prima facie case because
the McDonnell Douglas framework does not apply in
every employment discrimination case. For instance,
if a plaintiff is able to produce direct evidence of
discrimination, he may prevail without proving all the
elements of a prima facie case.

Id. at 511. Accordingly, the Court concluded that “the ordinary

rules for assessing the sufficiency of a complaint apply,”

referring to Federal Rule of Civil Procedure 8(a)(2). Id.

In light of Swierkiewicz, McCleary-Evans appropriately

argues that the district court erred in its analysis by

requiring her to plead facts establishing a prima facie case of

discrimination to survive a motion to dismiss. But the district

court’s erroneous analysis in this case will not save the

complaint if, under the “ordinary rules for assessing the

6
sufficiency of a complaint,” Swierkiewicz, 534 U.S. at 511, it

fails to state a plausible claim for relief under Title VII.

See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.

2010) (“[W]hile a plaintiff is not required to plead facts that

constitute a prima facie case in order to survive a motion to

dismiss, see Swierkiewicz, ‘[f]actual allegations must be enough

to raise a right to relief above the speculative level’”

(citation omitted) (quoting Twombly, 550 U.S. at 555)).

Federal Rule of Civil Procedure 8(a)(2) “requires only a

short and plain statement of the claim showing that the pleader

is entitled to relief, in order to give the defendant fair

notice of what the . . . claim is and the grounds upon which it

rests.” Twombly, 550 U.S. at 555 (internal quotation marks and

citation omitted). But this rule for pleading “requires more

than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Id. Instead, a

complaint must contain “[f]actual allegations [sufficient] to

raise a right to relief above the speculative level.” Id.; see

also Iqbal, 556 U.S. at 678 (holding that a complaint

“tender[ing] ‘naked assertion[s]’ devoid of ‘further factual

enhancement’” does not “suffice” (quoting Twombly, 550 U.S.

at 557)). The Supreme Court has accordingly held that

Rule 8(a)(2) requires that “a complaint . . . contain[]

sufficient factual matter, accepted as true, to ‘state a claim

7
to relief that is plausible on its face’” in the sense that the

complaint’s factual allegations must allow a “court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis added)

(quoting Twombly, 550 U.S. at 570); see also Coleman, 626 F.3d

at 191 (finding a complaint inadequate because its allegations

“fail[ed] to establish a plausible basis for believing . . .

that race was the true basis for [the adverse employment

action]”).

In her complaint, McCleary-Evans purported to state a claim

under Title VII, which means that she was required to allege

facts to satisfy the elements of a cause of action created by

that statute -- i.e., in this case, that the Highway

Administration “fail[ed] or refus[ed] to hire” her “because of

[her] race . . . [or] sex.” 42 U.S.C. § 2000e-2(a)(1) (emphasis

added). While she did allege that the Highway Administration

failed to hire her, she did not allege facts sufficient to claim

that the reason it failed to hire her was because of her race or

sex. To be sure, she repeatedly alleged that the Highway

Administration did not select her because of the relevant

decisionmakers’ bias against African American women. But those

“naked” allegations -- a “formulaic recitation” of the necessary

elements -- “are no more than conclusions” and therefore do not

suffice. Iqbal, 556 U.S. at 678-79 (quoting Twombly, 550 U.S.

8
at 555, 557) (internal quotation marks omitted). For example,

she alleged that “[d]uring the course of her interview, and

based upon the history of hires within [the Office of

Environmental Design], . . . both Keenan and Sangahvi

predetermined to select for both positions a White male or

female candidate.” But she alleged no factual basis for what

happened “during the course of her interview” to support the

alleged conclusion. The allegation that the Highway

Administration did not hire her because its decisonmakers were

biased is simply too conclusory. Only speculation can fill the

gaps in her complaint -- speculation as to why two “non-Black

candidates” were selected to fill the positions instead of her.

While the allegation that non-Black decisionmakers hired non-

Black applicants instead of the plaintiff is consistent with

discrimination, it does not alone support a reasonable inference

that the decisionmakers were motivated by bias. See id. at 678.

McCleary-Evans can only speculate that the persons hired were

not better qualified, or did not perform better during their

interviews, or were not better suited based on experience and

personality for the positions. In short, McCleary-Evans’

complaint “stop[ped] short of the line between possibility and

plausibility of entitlement to relief.” Id. (quoting Twombly,

550 U.S. at 557) (internal quotation marks omitted).

9
 In his dissent, Judge Wynn asserts that our holding

“ignores the factual underpinnings” of Swierkiewicz, post,

at 19, which approved an employment discrimination complaint

that, he claims, contained allegations less detailed than those

made by McCleary-Evans in this case, post, at 23. A closer look

at Swierkiewicz, however, reveals that it does not support this

position. Swierkiewicz claimed that he had been subject to

discrimination based on his age and national origin, alleging

that he had been employed by a reinsurance company that was

“principally owned and controlled by a French parent

corporation” for about six years as the chief underwriting

officer when the company’s CEO demoted him and “transferred the

bulk of his underwriting responsibilities” to an employee who,

like the CEO, was a French national and who was also

significantly younger than Swierkiewicz. Swierkiewicz, 534 U.S.

at 508. He alleged further that, about a year later, the CEO

“stated that he wanted to ‘energize’ the underwriting

department” and appointed the younger French national to serve

as the company’s new chief underwriting officer. Id. Finally,

Swierkiewicz alleged specifically that the new chief

underwriting officer was “less experienced and less qualified”

for the position because he “had only one year of underwriting

experience at the time he was promoted,” whereas Swierkiewicz

“had 26 years of experience in the insurance industry.” Id. As

10
this last detail is precisely the kind of allegation that is

missing from McCleary-Evans’ complaint, the fact that the

Supreme Court found Swierkiewicz’s allegations sufficient to

state a claim ultimately says little about the sufficiency of

McCleary-Evans’ complaint.

Moreover, in finding the complaint sufficient, the Supreme

Court in Swierkiewicz applied a different pleading standard than

that which it now requires under Iqbal and Twombly. See

Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th

Cir. 2012) (noting that Iqbal and Twombly “require more

specificity from complaints in federal civil cases than was

heretofore the case”). To be sure, those cases did not overrule

Swierkiewicz’s holding that a plaintiff need not plead the

evidentiary standard for proving a Title VII claim -- indeed,

Twombly expressly reaffirmed Swierkiewicz’s holding that the

“‘use of a heightened pleading standard for Title VII cases was

contrary to the Federal Rules’ structure of liberal pleading

requirements.’” Twombly, 550 U.S. at 570 (quoting Twombly v.

Bell Atl. Corp., 313 F. Supp. 2d 174, 181 (S.D.N.Y. 2003)); see,

e.g., Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st

Cir. 2013) (joining “[s]everal other courts of appeals” in

concluding “that the Swierkiewicz Court’s treatment of the prima

facie case in the pleading context remains” good law). But

Twombly and Iqbal did alter the criteria for assessing the

11
sufficiency of a complaint in at least two respects. First, the

Twombly Court explicitly overruled the earlier standard

articulated in Conley v. Gibson, 355 U.S. 41 (1957) -- and

repeated in Swierkiewicz, see 534 U.S. at 514 -- that “‘a

complaint should not be dismissed for failure to state a claim

unless it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to

relief.’” Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at

45-46); see also Iqbal, 556 U.S. at 670 (acknowledging that

Twombly “retired the Conley no-set-of-facts test”); Francis v.

Giacomelli, 588 F.3d 186, 192 n.1 (4th Cir. 2009) (same).

Moreover, Iqbal and Twombly articulated a new requirement that a

complaint must allege a plausible claim for relief, thus

rejecting a standard that would allow a complaint to “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.” Twombly, 550 U.S. at

561 (alteration in original) (emphasis added).

In short, in addition to the fact that the Swierkiewicz

complaint contained more relevant factual allegations for

stating a Title VII claim than does McCleary-Evans’ complaint,

the Swierkiewicz Court also applied a pleading standard more

relaxed than the plausible-claim standard required by Iqbal and

Twombly. At bottom, therefore, the Supreme Court has, with

12
Iqbal and Twombly, rejected the sufficiency of complaints that

merely allege the possibility of entitlement to relief,

requiring plausibility for obtaining such relief and thus

rejecting a complaint in which the plaintiff relies on

speculation. See Twombly, 550 U.S. at 555 (“Factual allegations

must be enough to raise a right to relief above the speculative

level” (emphasis added)).

Thus, contrary to Judge Wynn’s assertions about the

applicability of Swierkiewicz, it is clear that that decision

does not control the outcome here because: (1) the complaint in

Swierkiewicz alleged that the plaintiff was more qualified than

the younger French person appointed to replace him -- an

allegation that McCleary-Evans has not made; and

(2) Swierkiewicz in any event applied a more lenient pleading

standard than the plausible-claim standard now required by

Twombly and Iqubal.

Applying the Twombly/Iqbal standard here reveals that

McClearly-Evans’ complaint suffers from the same deficiencies

that defeated the complaint in Iqbal. In Iqbal, the plaintiff,

a Muslim citizen of Pakistan who was detained after 9/11,

alleged in a conclusory fashion that he was treated harshly

pursuant to a policy adopted by the Attorney General and the

Director of the FBI solely on account of his race, religion, or

national origin. See 556 U.S. at 680-81. The Supreme Court

13
found the complaint insufficient because it had “not ‘nudged

[his] claims’ of invidious discrimination ‘across the line from

conceivable to plausible,’” id. at 680 (alteration in original)

(quoting Twombly, 550 U.S. at 570), explaining that his factual

allegations did not “plausibly suggest” that the Attorney

General and the FBI Director had acted with a “discriminatory

state of mind,” id. at 683.

Similarly, McCleary-Evans’ complaint leaves open to

speculation the cause for the defendant’s decision to select

someone other than her, and the cause that she asks us to infer

(i.e., invidious discrimination) is not plausible in light of

the “‘obvious alternative explanation’” that the decisionmakers

simply judged those hired to be more qualified and better suited

for the positions. Iqbal, 556 U.S. at 682 (quoting Twombly, 550

U.S. at 567). Indeed, the consequence of allowing McCleary-

Evans’ claim to proceed on her complaint as stated would be that

any qualified member of a protected class who alleges nothing

more than that she was denied a position or promotion in favor

of someone outside her protected class would be able to survive

a Rule 12(b)(6) motion. Such a result cannot be squared with

the Supreme Court’s command that a complaint must allege “more

than a sheer possibility that a defendant has acted unlawfully.”

Id. at 678.

14
 In sum, while the district court improperly applied the

McDonnell Douglas evidentiary standard in analyzing the

sufficiency of McCleary-Evans’ complaint, contrary to

Swierkiewicz, the court nonetheless reached the correct

conclusion under Twombly and Iqbal because the complaint failed

to state a plausible claim for relief, as required by Federal

Rule of Civil Procedure 8(a)(2). Accordingly, we affirm.

AFFIRMED

15
Wynn, Circuit Judge, dissenting in part.

I do not agree with that part of the majority’s opinion

that affirms the dismissal of Dawnn McCleary-Evans’s claim that

she was discriminated against because of her race. This case

brings into stark relief the tension embedded in the Supreme

Court’s recent jurisprudence regarding Rule 8 pleading

requirements. It requires us to reconcile the Supreme Court’s

decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007),

and Ashcroft v. Iqbal, 556 U.S. 662 (2009), with its decision

in Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002)—no small

task as the inconsistent case law in this area shows.

The Supreme Court’s decisions in Twombly and Iqbal, which

underpin the majority’s holding, each speak to the proper

application of Rule 8(a)(2) of the Federal Rules of Civil

Procedure. That rule continues to be the yardstick by which

courts measure the sufficiency of civil complaints. The

language of the rule thus makes for a good starting point for

any court’s consideration of a motion to dismiss for failure to

state a claim. The rule provides:

(a) Claim for Relief. A pleading that states a claim
for relief must contain:

(2) a short and plain statement of the claim
showing that the pleader is entitled to
relief . . . .

Fed. R. Civ. P. 8(a)(2).

16
 Time and again the Supreme Court has reiterated that Rule

8(a)(2) sets forth a “liberal pleading standard[],” one which

does not contemplate the pleading of “specific facts.” Erickson

v. Pardus, 551 U.S. 89, 94 (2007). And the Supreme Court’s

recent jurisprudence has not extinguished what has been the

guiding star of 12(b)(6) jurisprudence for the last forty years—

“fair notice to the defendant.” Id. at 93 (internal quotation

marks and citations omitted). Indeed, the Court stated in

Twombly and reiterated less than a year later in Erickson that

the short and plain statement required under Rule 8(a)(2) “need

only ‘give the defendant fair notice of what the . . . claim is

and the grounds upon which it rests.’” Id. (quoting Twombly,

550 U.S. at 555). Nor has the Court abandoned the longstanding

requirement that judges “accept as true all of the factual

allegations contained in the complaint.” Id. at 04.

What the Court’s recent cases have done, however, is

require that a plaintiff do more than raise a remote possibility

of relief. The now familiar moniker for the plaintiff’s burden

is “plausibility.” While the Court’s delineation of the

plausibility requirement may be somewhat “opaque,” Swanson v.

Citibank, N.A., 614 F.3d 400, 411 (7th Cir. 2010) (Posner,

dissenting), the Court has given lower courts a few signposts to

travel by. We know, for instance, that more is required than “a

sheer possibility that a defendant has acted unlawfully.”

17
Iqbal, 556 U.S. at 678. A plaintiff must allege sufficient

factual content to “‘nudg[e]’ his claim of purposeful

discrimination ‘across the line from conceivable to plausible.’”

Id. at 683 (quoting Twombly, 550 U.S. at 570).

Yet we also know that “[t]he plausibility standard is not

akin to a ‘probability requirement.’” Id. at 678. In other

words, it need not appear from the complaint that the

plaintiff’s claims are likely to succeed. As this Court

recently recognized, “[a]lthough . . . the factual allegations

in a complaint must make entitlement to relief plausible and not

merely possible, what Rule 12(b)(6) does not countenance are

dismissals based on a judge’s disbelief of a complaint’s factual

allegations.” McLean v. United States, 566 F.3d 391, 399 (4th

Cir. 2009) (internal quotation marks, alterations and citations

omitted). Further, plausibility will not look the same in every

case; assessing plausibility is “a context-specific task that

requires the reviewing court to draw on its judicial experience

and common sense.” Iqbal, 556 U.S. at 679.

In evaluating the allegations in McCleary-Evans’s

complaint, however, we are not limited to the sparse guidance to

be gleaned from Twombly and Iqbal. In 2002 the Supreme Court

decided Swierkiewicz, a case involving the sufficiency of a

wrongful termination claim under Title VII. 534 U.S. 506. In a

unanimous opinion authored by Justice Thomas, the Court held

18
that “a complaint in an employment discrimination lawsuit [need]

not contain specific facts establishing a prima facie case of

discrimination under the framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).” Id. at 508. To

the contrary, the plaintiff “easily satisfie[d]” Rule 8(a)(2)

when he “detailed the events leading to his termination,

provided relevant dates, and included the ages and nationalities

of at least some of the relevant persons involved with his

termination.” Id. at 514 (emphasis added). The Court held that

such allegations “give respondent fair notice of what

petitioner’s claims are and the grounds upon which they rest.”

Id. Five years later, the Court told us that Swierkiewicz

remains good law, specifically referencing the factual

allegations that the Swierkiewcz Court deemed sufficient to

state “grounds showing entitlement to relief.” Twombly, 550

U.S. at 569-70.

While the majority pays lip service to Swierkiewicz,

acknowledging that a plaintiff need not plead a prima facie case

of discrimination under the McDonnell Douglas framework to

comply with Rule 8(a)(2), see supra at 5-6, it entirely ignores

the factual underpinnings of the Swierkiewicz holding, looking

solely to the Supreme Court’s 2009 decision in Iqbal to guide

its decision. In Iqbal, a Pakistani man who had been detained

during the weeks following the September 11th attacks alleged

19
that United States Attorney General John Ashcroft and Federal

Bureau of Investigations Director Robert Mueller had “adopted an

unconstitutional policy that subjected [him] to harsh conditions

of confinement on account of his race, religion, or national

origin.” Id. at 666. In a five-four decision, the Court held

that Iqbal’s claims against Ashcroft and Mueller did not satisfy

federal pleading requirements. While acknowledging that Rule 9

of the Federal Rules of Civil Procedure “excuses a party from

pleading discriminatory intent under an elevated pleading

standard,” id. at 686, the Court held that Iqbal’s bare

assertions of Ashcroft and Mueller’s discriminatory purpose were

not entitled to the assumption of truth and that the remainder

of his complaint failed to state a plausible claim. Id. at 697.

The apparent tension between the Court’s decisions in Iqbal

and Swierkiewicz is well-documented. 1 Despite this tension,

however, “we have no authority to overrule a Supreme Court

decision no matter . . . how out of touch with the Supreme

1
See, e.g., McCauley v. City of Chicago, 671 F.3d 611, 623
(7th Cir. 2011) (Hamilton, dissenting) (“Iqbal . . . created
tension with Swierkiewicz by endorsing its holding while
simultaneously appearing to require the same sort of fact-
specific pleading of discriminatory intent that the Swierkiewicz
Court rejected.”); Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir.
2011) (“The juxtaposition of Swierkiewicz . . . on the one hand,
and . . . Iqbal, on the other, is perplexing”); Arthur R.
Miller, From Conley to Twombly to Iqbal: A Double Play on the
Federal Rules of Civil Procedure, 60 Duke L.J. 1, 31 (2010)
(noting that the tension between Iqbal and Swierkiewicz has
“caus[ed] confusion and disarray among judges and lawyers”).

20
Court’s current thinking the decision seems.” Scheiber v. Dolby

Labs., Inc., 293 F.3d 1014, 1018 (7th Cir. 2002) (Posner, J.).

See also Columbia Union College v. Clarke, 159 F.3d 151, 158

(4th Cir. 1998) (recognizing that “lower courts are not to

conclude that the Court’s more recent cases have, by

implication, overruled its earlier precedent” (alterations and

internal quotation marks omitted)). This is particularly true

where, as here, the Supreme Court has said loud and clear that

its prior decision has not been overruled.

We are therefore confronted with two Supreme Court cases

having apparent relevance to the case before us. One of these

cases, Swierkiewicz, involves a Title VII plaintiff who alleged

that his employer wrongfully terminated him due to his national

origin. The other, Iqbal, involves a suspected terrorist who

alleged that he was mistreated pursuant to an unconstitutional

policy instituted by the United States Attorney General in

conjunction with the Director of the Federal Bureau of

Investigations. I have little difficulty deciding which case

has greater applicability to the run-of-the-mill employment

discrimination case before us. 2

2
Further, I agree with Judge Hamilton’s view that “we must
take care not to expand Iqbal too aggressively beyond its highly
unusual context—allegations aimed at the nation’s highest-
ranking law enforcement officials based on their response to
unprecedented terrorist attacks on the United States homeland—to

21
 The Seventh Circuit adopts the view that Swierkiewicz

should continue to guide courts’ application of federal pleading

requirements in straightforward discrimination cases. In

Swanson v. Citibank, N.A., the plaintiff alleged that Citibank

denied her loan application because she was African-American in

violation of the Fair Housing Act. 614 F.3d at 402-03. The

court concluded that the complaint satisfied the Twombly/Iqbal

plausibility standard where the plaintiff identified “the type

of discrimination that she thinks occur[ed] (racial), by whom

(Citibank, through Skertich, the manager, and the outside

appraisers it used), and when (in connection with her effort in

early 2009 to obtain a home-equity loan).” Id. at 617. The

court held that the plausibility standard must be viewed through

the lens of Swierkiewicz in most straightforward discrimination

cases. Id. at 404. In reaching this holding, the court offered

the following illustration:

A plaintiff who believes that she has been passed over
for a promotion because of her sex will be able to
plead that she was employed by Company X, that a
promotion was offered, that she applied and was
qualified for it, and that the job went to someone
else. That is an entirely plausible scenario, whether
or not it describes what “really” went on in this
plaintiff’s case.

cut off potentially viable claims.” McCauley v. City of
Chicago, 671 F.3d 611, 628-29 (7th Cir. 2011) (Hamilton, J.,
dissenting).

22
Id. at 404-405 (emphasis added). Even Judge Posner, who

dissented in Swanson, acknowledged that Swierkiewicz—though

distinguishable in his view—remains good law, recognizing that

“lower-court judges are not to deem a Supreme Court decision

overruled even if it is plainly inconsistent with a subsequent

decision.” Id. at 410.

Turning to McCleary-Evans’s complaint, it is clear that her

allegations go beyond what Swierkiewicz (and well-beyond what

Swanson) found sufficient to satisfy Rule 8(a)(2). McCleary-

Evans contends that she applied for two positions with the

Maryland Department of Transportation’s State Highway

Administration. She lays out in immense detail her

qualifications for these positions. She identifies the Highway

Administration employees responsible for denying her

applications, and states that both were non–African American.

She alleges that she and other African Americans who applied for

positions with the Highway Administration were denied employment

in favor of non–African American applicants. Finally, she

alleges that based on her interview experience and what she

apparently perceived as a discriminatory history of hires within

the Highway Administration, her race played a role in the

decision to hire non-African-American candidates over her. In

this particular context, drawing on “judicial experience and

23
common sense,” Iqbal, 556 U.S. at 679, McCleary-Evans’s claim of

race discrimination is eminently plausible.

I am not unmindful of the policy concerns that underlie the

Supreme Court’s decisions in Twombly and Iqbal. As Judge Posner

pointed out in his Swanson dissent, the Court quite clearly

aimed to curb the rising costs of discovery born by defendants

facing meritless lawsuits and to quell the tide of “extortionate

litigation” in this country. Swanson, 614 F.3d at 411 (Posner,

dissenting) (citing Frank H. Easterbrook, “Discovery as Abuse,”

69 B.U. L. Rev. 635, 639 (1989)). Indeed, the Twombly/Iqbal

standard incentivizes plaintiffs to be more diligent in their

pre-litigation investigations, thereby bringing greater balance

to the asymmetric discovery burdens that may arise in

litigation.

Yet if we are to consider litigation costs in the

application of federal pleading standards, we must take care not

to ignore the costs borne by plaintiffs and society as a whole

when meritorious discrimination lawsuits are prematurely

dismissed. See Miller, supra at 61. We ought not forget that

asymmetric discovery burdens are often the byproduct of

asymmetric information. The district court’s decision below

exemplifies the risks posed by an overly broad reading of

Twombly and Iqbal. The district court faulted McCleary-Evans

for failing to allege how much control the Highway

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Administration employees named in the complaint “wield[ed]” over

other members of the hiring committee and failing to identify

the qualifications of the selected candidates. J.A. 27-28. It

is simply unrealistic to expect McCleary-Evans to allege such

facts without the benefit of at least some limited discovery.

When we impose unrealistic expectations on plaintiffs at the

pleading stage of a lawsuit, we fail to apply our “judicial

experience and common sense” to the highly “context-specific

task” of deciding whether to permit a lawsuit to proceed to

discovery. Iqbal, 556 U.S. at 679. At the early stages of

Title VII litigation, borderline conclusory allegations may be

all that is available to even the most diligent of plaintiffs.

The requisite proof of the defendant’s discriminatory intent is

often in the exclusive control of the defendant, behind doors

slammed shut by an unlawful termination. 3

Finally, I must take issue with the majority’s suggestion

that by “retiring” the Conley v. Gibson, 355 U.S. 41 (1957), “no

set of facts” standard in Twombly, 550 U.S. at 563, the Supreme

Court all but retired Swierkiewicz. Under the majority’s view,

what remains of Swierkiewicz after Twombly is the bare holding

3
This state of affairs has led some commentators to argue
for a broadened use of pre-dismissal discovery, a tool that is
within the discretion of district courts. See, e.g., Suzette M.
Malveaux, Front Loading and Heavy Lifting: How Pre–Dismissal
Discovery Can Address the Detrimental Effect of Iqbal on Civil
Rights Cases, 14 Lewis & Clark L. Rev. 65 (2010)).

25
that courts should not use the magic words of McDonnell Douglas

to assess the sufficiency of Title VII claims at the 12(b)(6)

stage. Thus, the majority would render Swierkiewicz a hollow

shell and mute its primary thrust – namely, that discriminatory

intent need not be pled with specific facts. 4 But the Supreme

Court in Swierkiewicz specifically forbade using judicial

interpretation to limit the scope of its holding. Indeed, in

Swierkiewicz, in response to the argument that the Court’s

holding would “burden the courts” by “allowing lawsuits based on

conclusory allegations of discrimination to go forward,”

Swierkiewicz, 534 U.S. at 514, Justice Thomas, writing for a

unanimous Court, stated that “[a] requirement of greater

specificity for particular claims is a result that ‘must be

obtained by the process of amending the Federal Rules, and not

by judicial interpretation.’” Id. (emphasis added) (quoting

Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit, 507 U.S. 163, 168–169 (1993)). As far as I

4
Indeed, in affirming dismissal of Swierkiewicz’s national
origin discrimination claim, the Second Circuit stated, “the
only circumstances Swierkiewicz pled are that he is Hungarian,
others at Sorema are French, and the conclusory allegation that
his termination was motivated by national origin discrimination.
. . . .[T]hese allegations are insufficient as a matter of law
to raise an inference of discrimination.” Swierkiewicz v.
Sorema, N.A., 5 F. App'x 63, 64 (2d Cir. 2001) rev'd, 534 U.S.
506. That a unanimous Supreme Court explicitly rejected the
Second Circuit’s demand for greater specificity cannot be
ignored.

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am aware, no amendment to the Federal Rules has taken effect

since the Court’s ruling in Swierkiewicz that would require the

level of specificity that the majority by its own “judicial

interpretation” demands from McCleary-Evans.

Because McCleary-Evans’s complaint states a plausible claim

of discrimination on the basis of race, I respectfully dissent.

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