Khalik v. United Air Lines

FILED
United States Court of Appeals
Tenth Circuit

February 6, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FEDWA KHALIK,
Plaintiff–Appellant,
v. No. 11-1063
UNITED AIR LINES,
Defendant–Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 10-CV-01490-DME-MJW)

John R. Olsen of Olsen & Brown, LLC, Niwot, Colorado, for Appellant.

Judith A. Biggs of Holland & Hart LLP, Boulder, Colorado (Emily Hobbs-Wright
and Steven T. Collis of Holland & Hart LLP, Denver, Colorado, with her on the
brief), for Appellee.

Before BRISCOE, Chief Judge, McKAY, and O’BRIEN, Circuit Judges.

McKAY, Circuit Judge.

This is an employment-discrimination case the district court dismissed

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

Plaintiff Fedwa Khalik appeals the dismissal, and we affirm.

Plaintiff is an Arab-American, born in Kuwait, who practices Islam.
Defendant United Air Lines hired her in 1995, and she rose to the position of

Business Services Representative before Defendant terminated her position in

2009. Plaintiff’s complaint asserts claims under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e, for retaliation and discrimination because of race,

religion, national origin, and ethnic heritage. 1 Plaintiff’s complaint also brings a

retaliation claim under the Family and Medical Leave Act (FMLA), 29 U.S.C. §

2601 et seq. Plaintiff also alleged state law claims for discrimination, retaliation,

breach of contract, promissory estoppel, and wrongful termination in violation of

Colorado public policy.

Since this case turns on the sufficiency of the facts set forth in the

complaint, we will now set forth those alleged facts. Plaintiff “was born in

Kuwait and is an Arab-American. Both of her parents are Palestinian.”

(Appellant’s App. at 7.) “Plaintiff’s religion is Islam.” (Id. at 8.) Defendant first

employed Plaintiff in 1995, and “[s]he performed her job well at all times.” (Id.)

“She rose to the job title of Business Services Representative.” (Id.) “She was

physically assaulted in the office (grabbed by the arm) after being subjected to a

false investigation and false criticism of her work. She was targeted because of

her race, religion, national origin, and ethnic heritage.” (Id.) “Plaintiff

1
As the district court noted, Plaintiff’s claim for relief based on “ethnic
heritage” discrimination necessarily fails because “ethnic heritage” is not a
protected class under Title VII. See 42 U.S.C. § 2000e-2(a)(1).

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complained internally about both discrimination at United Air Lines and being

denied FMLA leave.” (Id.) “She complained about an email sent by a United Air

Lines employee discussing a possible sexual liaison with an underage girl (which

constituted a threat of criminal violation endangering the public).” (Id.)

Defendant’s “reasons given for plaintiff’s termination and other mistreatment as

described herein were exaggerated and false, giving rise to a presumption of

discrimination, retaliation and wrongful termination.” (Id. at 9.)

More than two months after Defendant filed its motion to dismiss and three

weeks after the deadline to amend pleadings had passed, Plaintiff sought to amend

her complaint by adding the following sentence: “The above-stated actions

against plaintiff were taken because of plaintiff’s race, religion, national origin,

ethnic heritage and in retaliation for reporting discrimination, seeking an FMLA

leave, and reporting a criminal act by a United Air Lines employee that

endangered the public.” (Id. at 89.) The district court denied Plaintiff’s motion

to amend as futile and untimely and granted Defendant’s motion to dismiss the

federal claims for failure to state a claim. The district court also exercised

pendent jurisdiction and dismissed the state law discrimination and retaliation

claims as similarly not plausible. Plaintiff confessed Defendant’s motion to

dismiss the breach of contract and promissory estoppel claims, and therefore the

district court exercised pendent jurisdiction and dismissed them with prejudice.

The district court declined to exercise jurisdiction over Plaintiff’s remaining

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claim for violation of Colorado public policy, and therefore dismissed it without

prejudice for lack of subject matter jurisdiction. This appeal followed. On

appeal, Plaintiff challenges only the Rule 12(b)(6) dismissal of her

discrimination, retaliation, and FMLA claims.

DISCUSSION

We review a district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(6) de novo. Teigen v. Renfrew, 511 F.3d 1072, 1078 (10th Cir.

2007). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a

short and plain statement of the claim showing that the pleader is entitled to

relief.” Recently, the Supreme Court clarified this pleading standard in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.

662, 129 S. Ct. 1955 (2009): to withstand a Rule 12(b)(6) motion to dismiss, a

complaint must contain enough allegations of fact, taken as true, “to state a claim

to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A plaintiff

must “nudge [his] claims across the line from conceivable to plausible” in order

to survive a motion to dismiss. Id.

The Court explained two principles underlying the new standard: (1) when

legal conclusions are involved in the complaint “the tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to [those]

conclusions,” Iqbal, 129 S. Ct. at 1949, and (2) “only a complaint that states a

plausible claim for relief survives a motion to dismiss,” id. at 1950. Thus, mere

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“labels and conclusions” and “a formulaic recitation of the elements of a cause of

action” will not suffice. Twombly, 550 U.S. at 555. Accordingly, in examining a

complaint under Rule 12(b)(6), we will disregard conclusory statements and look

only to whether the remaining, factual allegations plausibly suggest the defendant

is liable.

There is disagreement as to whether this new standard requires minimal

change or whether it in fact requires a significantly heightened fact-pleading

standard. 2 Compare In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896,

911 (6th Cir. 2009) (construing Twombly as requiring a plaintiff to plead enough

specific facts “to raise a reasonable expectation that discovery will reveal

evidence”), with id. at 912 (Merritt, J., dissenting) (stating that the majority has

“seriously misapplied the new standard by requiring not simple ‘plausibility,’ but

by requiring the plaintiff to present at the pleading stage a strong probability of

winning the case”), and Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.

2008) (stating that Twombly “did not . . . supplant the basic notice-pleading

standard”). We noted in Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir. 2010),

that “the plausibility standard has been criticized by some as placing an improper

2
This confusion is not helped by the fact that the Supreme Court decided
Iqbal over the dissent of Justice Souter, who authored the majority opinion in
Twombly. Justice Souter described the Iqbal 5-4 majority opinion as
“bespeak[ing] a fundamental misunderstanding of the enquiry that Twombly
demands.” Iqbal, 129 S. Ct. at 1959 (Souter, J. dissenting).

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burden on plaintiffs,” where a chief criticism “is that plaintiffs will need

discovery before they can satisfy plausibility requirements when there is

asymmetry of information, with the defendants having all the evidence.”

We recently stated this new standard is a “refined standard.” Kansas Penn

Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). In applying this

new, refined standard, we have held that plausibility refers “to the scope of the

allegations in a complaint: if they are so general that they encompass a wide

swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their

claims across the line from conceivable to plausible.’” Robbins v. Oklahoma, 519

F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). Further,

we have noted that “[t]he nature and specificity of the allegations required to state

a plausible claim will vary based on context.” Kansas Penn, 656 F.3d at 1215;

see also Iqbal, 129 S. Ct. at 1950 (“Determining whether a complaint states a

plausible claim for relief will . . . be a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.”). Thus,

we have concluded the Twombly/Iqbal standard is “a middle ground between

heightened fact pleading, which is expressly rejected, and allowing complaints

that are no more than labels and conclusions or a formulaic recitation of the

elements of a cause of action, which the Court stated will not do.” Robbins, 519

F.3d at 1247 (internal quotation marks and citations omitted).

In other words, Rule 8(a)(2) still lives. There is no indication the Supreme

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Court intended a return to the more stringent pre-Rule 8 pleading requirements.

See Iqbal, 129 S. Ct. at 1950 (“Rule 8 marks a notable and generous departure

from the hyper-technical, code-pleading regime of a prior era . . . .”). And in

fact, the Supreme Court stated in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514

(2002), a pre-Twombly case, 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. at 515 (internal quotation

marks omitted). Thus, as the Court held in Erickson v. Pardus, 551 U.S. 89

(2007), which it decided a few weeks after Twombly, under Rule 8, “[s]pecific

facts are not necessary; the statement need only ‘give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.’” Id. at 93 (quoting

Twombly, 550 U.S. at 555 (alteration in original)); see also al-Kidd v. Ashcroft,

580 F.3d 949, 977 (9th Cir. 2009) (“Twombly and Iqbal do not require that the

complaint include all facts necessary to carry the plaintiff’s burden.”).

While the 12(b)(6) standard does not require that Plaintiff establish a prima

facie case in her complaint, the elements of each alleged cause of action help to

determine whether Plaintiff has set forth a plausible claim. See Swierkiewicz, 534

U.S. at 515; see also Twombly, 550 U.S. at 570. Thus, we start by discussing the

elements a plaintiff must prove to establish a claim for discrimination and

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retaliation under Title VII and the FMLA. 3

Title VII makes it unlawful “to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff proves a

violation of Title VII either by direct evidence of discrimination or by following

the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). See Crowe v. ADT Sec. Servs. Inc., 649 F.3d 1189, 1194 (10th Cir.

2011). Under McDonnell Douglas, a three-step analysis requires the plaintiff first

prove a prima facie case of discrimination. See Garrett v. Hewlett-Packard Co.,

305 F.3d 1210, 1216 (10th Cir. 2002). To set forth a prima facie case of

discrimination, a plaintiff must establish that (1) she is a member of a protected

class, (2) she suffered an adverse employment action, (3) she qualified for the

position at issue, and (4) she was treated less favorably than others not in the

protected class. See Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir.

1998). The burden then shifts to the defendant to produce a legitimate, non-

3
The parties agree that we evaluate Plaintiff’s claims for discrimination
and retaliation identically under federal and state law. See Johnson v. Weld
County, Colo., 594 F.3d 1202, 1219 n.11 (10th Cir. 2010) (“Colorado and federal
law apply the same standards to discrimination claims, and so . . . they rise or fall
together . . . .” (citation and internal quotation marks omitted)). Thus, any
determination of Plaintiff’s federal law claims will necessarily also determine her
state law claims.

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discriminatory reason for the adverse employment action. See Garrett, 305 F.3d

at 1216. If the defendant does so, the burden then shifts back to the plaintiff to

show that the plaintiff’s protected status was a determinative factor in the

employment decision or that the employer’s explanation is pretext. Id.

Title VII also makes it unlawful for an employer to retaliate against an

employee “because [s]he has opposed any practice made an unlawful employment

practice by this subchapter.” 42 U.S.C. § 2000e-3(a). A plaintiff can similarly

establish retaliation either by directly showing that retaliation played a motivating

part in the employment decision, or indirectly by relying on the three-part

McDonnell Douglas framework. See Twigg v. Hawker Beechcraft Corp., 659

F.3d 987 (10th Cir. 2011). To state a prima facie case for retaliation under Title

VII, a plaintiff must show “(1) that [s]he engaged in protected opposition to

discrimination, (2) that a reasonable employee would have found the challenged

action materially adverse, and (3) that a causal connection existed between the

protected activity and the materially adverse action.” Id. at 998 (internal

quotation marks omitted) (alteration in original).

The FMLA makes it unlawful for an employer to retaliate against an

employee for exercising her rights to FMLA leave. See 29 U.S.C. § 2615(a).

Retaliation claims under the FMLA are also subject to the burden-shifting

analysis of McDonnell Douglas. See Metzler v. Fed. Home Loan Bank of Topeka,

464 F.3d 1164, 1170 (10th Cir. 2006). And again, to establish a prima facie case

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of retaliation under the FMLA, a plaintiff must show(1) she engaged in protected

activity, (2) the employer took a materially adverse action, and (3) there is a

causal connection between the two. Id. at 1171.

We now turn to whether Plaintiff’s complaint sufficiently stated plausible

claims for relief. As we stated earlier, while Plaintiff is not required to set forth a

prima facie case for each element, she is required to set forth plausible claims.

We agree with the district court that Plaintiff’s allegations are the type of

conclusory and formulaic recitations disregarded by the Court in Iqbal. See

Iqbal, 129 S. Ct. at 1949 (“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”). Plaintiff’s

general assertions of discrimination and retaliation, without any details whatsover

of events leading up to her termination, are insufficient to survive a motion to

dismiss. While “[s]pecific facts are not necessary,” see Erickson, 551 U.S. at 93,

some facts are.

Plaintiff’s arguments, particularly as framed at oral argument, accuse the

district court of having erroneously applied a heightened pleading standard. If

true, this would be a troublesome development, especially because in employment

discrimination cases where the employers are large corporations, the employee

may not know who actually fired her or for what reason. But, the Twombly/Iqbal

standard recognizes a plaintiff should have at least some relevant information to

make the claims plausible on their face.

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 In this case, several of Plaintiff’s allegations are not entitled to the

assumption of truth because they are entirely conclusory, including her

allegations that: (1) she was targeted because of her race, religion, national origin

and ethnic heritage; (2) she was subjected to a false investigation and false

criticism; and (3) Defendant’s stated reasons for the termination and other adverse

employment actions were exaggerated and false, giving rise to a presumption of

discrimination, retaliation, and wrongful termination. Cf. Iqbal, 129 S. Ct. at

1951 (holding that the respondent’s allegation that the petitioners “knew of,

condoned, and willfully and maliciously agreed to subject him to harsh conditions

of confinement as a matter of policy, solely on account of his religion, race,

and/or national origin” was conclusory and not entitled to the assumption of truth

(internal quotation marks and brackets omitted)).

Striking those conclusory allegations leaves us with the following facts,

which we take as true, see id. at 1949-50: (1) Plaintiff is an Arab-American who

was born in Kuwait; (2) Plaintiff’s religion is Islam; (3) Plaintiff performed her

job well; (4) Plaintiff was grabbed by the arm in the office; (5) Plaintiff

complained internally about discrimination; (6) Plaintiff also complained

internally about being denied FMLA leave; (7) Plaintiff complained about an

email that described a criminal act; and (8) Defendant terminated Plaintiff’s

employment position. These facts do not sufficiently allege discrimination or

retaliation. There is no context for when Plaintiff complained, or to whom.

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There are no allegations of similarly situated employees who were treated

differently. There are no facts relating to the alleged discrimination. There is no

nexus between the person(s) to whom she complained and the person who fired

her. Indeed, there is nothing other than sheer speculation to link the arm-

grabbing and/or termination to a discriminatory or retaliatory motive. And

finally, Plaintiff alleges nothing that would link her request for FMLA leave,

which she provides no details about, to her termination.

While we do not mandate the pleading of any specific facts in particular,

there are certain details the Plaintiff should know and could properly plead to

satisfy the plausibility requirement. For instance, Plaintiff should know when she

requested FMLA leave and for what purpose. She should know who she

requested leave from and who denied her. She should know generally when she

complained about not receiving leave and when she was terminated. She should

know details about how Defendant treated her compared to other non-Arabic or

non-Muslim employees. She should know the reasons Defendant gave her for

termination and why in her belief those reasons were pretextual. She should

know who grabbed her by the arm, what the context for that action was, and when

it occurred. She should know why she believed that action was connected with

discriminatory animus. She should know who she complained to about the

discrimination, when she complained, and what the response was. She should

know who criticized her work, what that criticism was, and how she responded.

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But in fact, Plaintiff offers none of this detail. To be sure, we are not suggesting

a court necessarily require each of the above facts. But a plaintiff must include

some further detail for a claim to be plausible. Plaintiff’s claims are based solely

on the fact that she is Muslim and Arab-American, that she complained about

discrimination, that she complained about the denial of FMLA leave, and that

Defendant terminated her. Without more, her claims are not plausible under the

Twombly/Iqbal standard. 4

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s dismissal.

4
Even before Twombly/Iqbal, cases that survived a motion to dismiss
showed a higher level of detail. See, e.g., Swierkiewicz, 534 U.S. at 514 (holding
a complaint sufficiently pled where the plaintiff “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”); Mahon v.
Am. Airlines, Inc., 71 F. App’x 32, 35 (10th Cir. 2003) (holding that a complaint
sufficiently stated an equal protection claim where it specifically identified
disparate treatment compared to other similarly situated workers); Duran v.
Ashcroft, 114 F. App’x 368, 370 (10th Cir. 2004) (holding a complaint sufficient
to state a claim where the plaintiff included relevant dates and specific instances
of discrimination).

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