Charles Kyle v. Morton High School, District 201, Margaret A. Kelly, Judy Thompson

CUDAHY, Circuit Judge,

concurring in part and dissenting in part.

We have repeatedly emphasized that “apart from [Rule 9] and a tiny handful of arguably appropriate judicial supplements to it, a plaintiff in a suit in federal court need not plead facts; he can plead conclusions.” Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir.1995); see also, e.g., Hutchinson v. Spink, 126 F.3d 895, 900 (7th Cir.1997). “[TJhere is no pleading requirement of stating ‘facts sufficient to constitute a cause of action’____” Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir.1944) (Clark, J.); see also Homeyer v. Stanley Tulchin Assocs., 91 F.3d 959, 961 (7th Cir.1996) (“[The plaintiff] was not required to plead facts or evidence to support her allegations; she was not even required to include a theory of the case.”). The Supreme Court has recently confirmed that in civil rights actions against municipalities, “ ‘all" the Rules require is a ‘short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.’ ” Leatherman v. Tarrant County Narcotics and Intelligence Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (footnote omitted)). In applying a test derived from a heightened pleading standard for civil rights complaints to Kyle’s First Amendment claim, the majority is demanding more of a civil rights plaintiff than Rule 8 requires. Because this is inconsistent with Leatherman, I respectfully dissent from the dismissal of Count II.

Kyle’s complaint satisfies the requirement described in Gustafson v. Jones, 117 F.3d 1015 (7th Cir.1997), that the complaint allege that the defendants retaliated against the plaintiff on the basis of constitutionally-protected conduct. See Gustafson, 117 F.3d at 1018. The complaint expressly alleges that one of the defendants told Kyle that Kyle was dismissed for Kyle’s political conduct, and this can support an inference of retaliation. See id.; see also McGill v. Board of Educ., 602 F.2d 774, 780 (7th Cir.1979). (There is no basis for the majority’s characterization of the statement as a “rumor.”) Therefore Doherty v. City of Chicago, 75 F.3d 318, 326 (7th Cir.1996) (“Ms. Doherty nowhere has alleged that the decisionmaker knew of her nonaffiliation with the Democratic party____”), is inapplicable. For this same reason, neither Luden v. Preiner, 967 F.2d 1166 (7th Cir.1992) (per curiam), nor Albiero v. City of Kankakee, 122 F.3d 417 (7th Cir.1997), is comparable. The majority’s suggestion that Kyle’s complaint consists of no more than a “bald assertion,” maj. op. at 456, is itself, respectfully, no more than a bald assertion; it ignores this aspect of the complaint as well as the complaint’s generalized statement of facts that provide context for the claim. Thus the majority’s string citation to Talbot, Panaras, Chaveriat, Perkins and McTigue is inapplicable. “If some of our opinions say (and some do) that a suit must be dismissed for failure to plead facts, usually on close scrutiny it is apparent that the real grounds for the dismissal are different. ...” Jackson, 66 F.3d at 153.

Although we have suggested that a fired public employee’s complaint also fails to state a First Amendment claim unless he “allege[s] *459facts that could support a finding that the speech is on a matter of public concern,” Gustafson, 117 F.3d at 1018; see also Caldwell v. City of Elwood, 959 F.2d 670, 672 (7th Cir.1992), defendants cite no case in which we have upheld a complaint’s dismissal for that reason. Caldwell, which took this criterion from Barkoo v. Melby, 901 F.2d 613, 617 (7th Cir. 1990)—a case in which the issue was the sufficiency of the evidence presented at trial, not the dismissal of a complaint—did not rely on it. Gustafson reversed the dismissal of a complaint.

If a complaint pleads facts that demonstrate that the speech at issue is not on a matter of public concern, the plaintiff will of course have pleaded himself out of court, cf. Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 474 (7th Cir.1997), and when we have dismissed a public employee’s First Amendment retaliation complaint, it is generally on this basis. See, e.g., Khuans v. School Dist. 110, 123 F.3d 1010, 1016 (7th Cir.1997); Lashbrook v. Oerkfitz, 65 F.3d 1339, 1349-50 (7th Cir.1995); Griffin v. Thomas, 929 F.2d 1210, 1214-15 (7th Cir.1991). In Gray v. Lacke, 885 F.2d 399, 411 (7th Cir.1989), we did uphold the dismissal of a complaint because it failed to allege the contents of a private conversation that allegedly provoked the plaintiffs termination. We explained that “[w]e have no way of knowing whether the conversation touched on a matter of public concern.” Id. In stating that he was told he was fired for “political and advocacy reasons,” Kyle has essentially alleged that he was fired for speaking on a matter of public concern; so Gray, where there was no suggestion that the discussion involved a matter-of public concern, is easily distinguishable.

The analysis in Gray, moreover, is grounded in the heightened pleading standard in civil rights actions sometimes imposed in this circuit prior to Leatherman. See Gray, 885 F.2d at 411 (“[B]ecause Gray failed to make sufficient factual allegations regarding this incident, the district court properly dismissed this claim.”) (emphasis added); Musso v. Suriano, 586 F.2d 59, 62 (7th Cir.1978) (cited as authority by Gray); Cohen v. Illinois Inst. of Tech., 524 F.2d 818 (7th Cir.1975) (Stevens, J.) (Cohen I) (cited as authority by Musso); Cohen v. Illinois Inst. of Tech., 581 F.2d 658, 663 (7th Cir.1978) (Cohen IT) (explaining rationale of Cohen I and Cohen II as “[s]ome particularized facts demonstrating a constitutional deprivation are needed to sustain a cause of action under the Civil Rights Act”); see also Jamieson v. Shaw, 772 F.2d 1205, 1214-15 (5th Cir.1985) (Jolly, J., dissenting) (citing Cohen II as example of heightened pleading standard applied to § 1983 eases). In the wake of Leatherman, it is necessary to consider whether a pleading standard justified by the claim’s status as a cause of action under § 1983 improperly “demand[s] a greater level of specificity” than notice pleading requires. Duda v. Board of Educ., 133 F.3d 1054, 1057 (7th Cir.1998); see Sherwin Manor Nursing Ctr. v. McAuliffe, 37 F.3d 1216, 1218 (7th Cir.1994).

A motion to dismiss is not properly granted unless it is beyond doubt that there could be no set of facts justifying relief. The majority’s report of this principle’s demise, see maj. op. at 455, is greatly exaggerated. See, e.g., Kelley v. Crosfield Catalysts, 135 F.3d 1202, 1206 (7th Cir.1998). And the defendants have not even attempted to persuade us that this criterion is satisfied. Nor have they presented an argument on appeal that the complaint fails to provide them with fair notice of Kyle’s First Amendment claim; they simply insist, without argument, that Rule 11 entitles them to “facts that would give the defendants notice of the claim.” Br. of Defs.-Appellees 21 (emphasis added); see also maj. op. at 457 n. 4. An appeal to the inquiry requirements of Rule 11(b)(3) was also made in Leatherman, but the Supreme Court evidently did not consider the argument persuasive. See Leatherman, 507 U.S. at 167-68, 113 S.Ct. at 1162-63. “Rule 11 neither modifies the ‘notice pleading’ approach of the federal rules nor requires counsel to prove the case in advance of discovery.” Frantz v. United States Powerlifting Fed’n, 836 F.2d 1063, 1068 (7th Cir.1987); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406-07, 110 S.Ct. 2447, 2461-62, 110 L.Ed.2d 359 (1990); Donaldson v. Clark, 819 F.2d 1551, 1561 (11th Cir.1987) (en banc). Rule 8 does not require the plaintiff to plead the facts the majority requires, as the sample *460forms in the appendix to the Federal Rules of Civil Procedure demonstrate:

[O]ne of the forms included in the appendix to the Federal Rules of Civil Procedure states a claim for money owed for a sale of goods. The substantive allegation states, in its entirety, “Defendant owes plaintiff _dollars for goods sold and delivered by plaintiff between June 1, 1936 and December 1, 1936.” Fed.R.Civ.P. app., Form 5. The plaintiff using this form need not state in the complaint what the goods were, their quantity, where they were delivered, or on what date within the stated six month period the delivery took place. Presumably, if any of these stated facts are actually unknown to the defendant, he would be entitled to proceed either by a motion for a more definite statement, see Fed.R.Civ.P. 12(e), or through the discovery devices made available in Rules 26 through 36.

Cook v. Winfrey, 141 F.3d 322, 328 (7th Cir.1998) (emphasis added); see also Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992). The complaint identifies Kyle’s firing as the basis for the complaint, which provides the defendants adequate notice of the claim—certainly in this case, in which the defendants do not contend that they terminated Kyle on the basis of unprotected speech or advocacy.

The majority struggles to draw inferences from the complaint that, if true, would defeat the claim, see maj. op. at 455-456, but we must construe Kyle’s complaint as alleging that he engaged in political conduct and advocacy. Even if this is not the only possible inference, because it is not an unreasonable one, the plaintiff is entitled to it. See Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245, 1248 (7th Cir.1997); Fed.R.Civ.P. 8(f). The complaint also describes the relevant conduct of the defendants and the source of Kyle’s alleged injury. No more is required at this stage. “[A] rule 12(b)(6) motion ... presumes that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. National Wildlife Fed’n, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990); see also Albiero, 122 F.3d at 419 (“The other misconception is that a complaint must allege all of the facts essential to recovery under the plaintiffs legal theory.”).

The majority’s concern that the Board would be unable to “craft a meaningful response,” maj. op. at 456, is illusory. The Board claims it fired Kyle solely for budgetary reasons, which seems to be a comprehensible rebuttal. In any event, the protection of the Board’s ability to defend itself is lodged elsewhere in the civil rules. See Early v. Bankers Life & Cas. Co., 959 F.2d 75, 78-79 (1992). The merger of Rule 12(b)(6) and Rule 12(e) suggested by the majority, maj. op. at 456-457, is perhaps best left to a formal amendment of Rule 12. Cf. United States v. Guy, No. 97-3645, slip op. at 3-4 (7th Cir. April 10, 1998). The district court never indicated that Kyle’s original complaint would be dismissed if it were not amended along the lines the majority suggests, as would have been apparent with a true motion for a more definite statement. See 2 James Wm. Moore et al., Moore’s Federal Practice § 12.36[8] (3d ed.1997). Further, only the proceedings following the filing of the amended complaint are before us. See Crosfield Catalysts, 135 F.3d at 1204-05; Lubin v. Chicago Title & Trust Co., 260 F.2d 411, 413 (7th Cir.1958); Ericson v. Slomer, 94 F.2d 437, 439 (7th Cir.1938).

Not only is it apparent from the complaint that “some recognized legal theory exists upon which relief could be accorded” the plaintiff, 2 James Wm. Moore et ah, supra, at § 12.34[1][b]; the gravamen of the plaintiff’s complaint could not be clearer: it is that he was fired in retaliation for engaging in activity protected by the First Amendment. Under notice pleading, as the' Rules’ sample forms show, the gravamen of a complaint cannot be a particular fact or a legal theory, see Homeyer, 91 F.3d at 961; the gravamen is the grievance. Here the alleged grievance is plain; neither the district court nor the defendants ever suggested that they could not understand the nature of plaintiff’s alleged grievance—there is only the defendants’ unsupported assertion that Rule 11 entitles them to specific factual notice. But the plaintiff need only indicate the grounds of his complaint, not the specific factual grounds. The majority’s analysis of plead*461ing, which states unequivocally that “[a] plaintiff ‘need not plead facts,’” and then turns to consider “whether ‘sufficient facts [have been] pleaded,’ ” maj. op. at 452-453, may prove difficult to apply consistently.

Finally, it is not clear the majority’s fact-pleading requirement will help the courts recognize meritorious claims at the pleading stage of a case. In Gustafson we noted the difficulty of balancing the employee’s free speech interest against the interests of the public employer on the basis of the pleadings alone. See Gustafson, 117 F.3d at 1019; see also Khuans, 123 F.3d at 1021 (Diane P. Wood, J., concurring). Even a determination of the preliminary issue whether a public employee’s speech “addresses a matter of public concern,” however, requires an assessment of the “content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48 & n. 7, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983) (emphasis added). An initial screening on general facts provided in the pleadings is inevitably difficult and may be unreliable. Such a screen may not be the best means of “promot[ing] the ends of justice,” 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1029 (2d ed.1987), even if Leatherman allowed us more freedom to consider this goal. See Leatherman, 507 U.S. at 168-69, 113 S.Ct. at 1163. Applying a “public concern” test on the basis of facts supplied at the pleading stage would be no easier for a free association claim. See Balton v. City of Milwaukee, 133 F.3d 1036 (7th Cir.1998).

In the case of a First Amendment retaliation complaint it does not appear that we have ever upheld a motion to dismiss for failure to state a claim because it failed to allege facts indicating that the public employee was speaking on a matter of public concern, if the complaint suggested that the speech involved such matters. In light of Leatherman, the majority’s dismissal on the basis of failure to plead sufficient facts is unwarranted. See Lanigan, 110 F.3d at 480 (“The allegations against the Village come close to the level of ‘boilerplate vagueness.’ However, we recognize that Leatherman does not require [the plaintiff] to do more than he has done so far.”) (internal citation omitted). With respect to Count II, the defendants’ arguments do not justify judgment on the pleadings.

I join the court’s opinion in full with the exception of Part II, from which I respectfully dissent.