Sparrow, Victor H. v. United Airlines Inc

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2000 Decided June 27, 2000

No. 99-7165

Victor H. Sparrow, III,
Appellant

v.

United Air Lines, Inc., et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 98cv02194)

Victor H. Sparrow, III, appearing pro se, argued the cause
and filed the briefs for appellant.

Jeffrey S. Piell argued the cause for appellees. With him
on the brief were Gary A. Orseck and Andrew A. Nicely.

Before: Edwards, Chief Judge, Randolph and Garland,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

 Garland, Circuit Judge: Plaintiff Victor H. Sparrow, III
worked for United Air Lines for three years before being
terminated in 1997. On September 15, 1998, he sued his
former employer on a number of grounds, including alleged
racial discrimination in employment. In lieu of an answer,
United filed a motion under Federal Rule of Civil Procedure
12(b)(6), asking the district court to dismiss plaintiff's action
for "failure to state a claim upon which relief can be granted."
The court granted the motion, holding that plaintiff's com-
plaint had failed to "make out a prima facie case of discrimi-
nation." Sparrow v. United Airlines, Inc., No. 98-2194, slip
op. at 17 (D.D.C. July 22, 1999). Because a plaintiff need not
set forth the elements of a prima facie case at the initial
pleading stage, we reverse and remand for further proceed-
ings.

I

Sparrow's amended complaint included a plethora of
charges against United, ranging from breach of contract to
violation of various state laws. The district court dismissed
the complaint in its entirety, and, in an earlier opinion, this
court affirmed as to all claims other than those alleging
"discriminatory discharge and failure to promote under 42
U.S.C. s 1981." Sparrow v. United Air Lines, Inc., No.
99-7165 (D.C. Cir. Dec. 21, 1999).1 We review de novo the
district court's dismissal of the remaining claims under Rule
12(b)(6). See, e.g., Croixland Properties Ltd. v. Corcoran, 174
F.3d 213, 215 (D.C. Cir. 1999). In so doing, we must treat the
complaint's factual allegations as true, see Leatherman v.
Tarrant County Narcotics Intelligence and Coordination
Unit, 507 U.S. 163, 164 (1993), and must grant plaintiff "the
benefit of all inferences that can be derived from the facts
alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C.
Cir. 1979). See Croixland Properties, 174 F.3d at 215.2

__________
1 Section 1981 prohibits racial discrimination in "the making,
performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship." 42 U.S.C. s 1981(b); see Carney v.
American Univ., 151 F.3d 1090, 1092-93 (D.C. Cir. 1998).

2 We also note that Sparrow brought this action pro se, and that
the Supreme Court has instructed the lower courts to hold "allega-

A

The district court dismissed Sparrow's employment dis-
crimination claims on the ground that "[p]laintiff cannot make
out a prima facie case of discrimination." Sparrow, slip op. at
17. "Specifically," the court said, "plaintiff has not pointed to
any similarly situated employees who were given preferential
treatment over him." Id. Moreover, "even assuming that
plaintiff could meet the elements of a prima facie case, he has
offered no evidence to demonstrate that [United's] reasons
for firing him were pretextual." Id.

It is true that under the familiar McDonnell Douglas
framework for proving unlawful discrimination:

First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in prov-
ing the prima facie case, the burden shifts to the defen-
dant "to articulate some legitimate, nondiscriminatory
reason for the employee's rejection." Third, should the
defendant carry this burden, the plaintiff must then have
an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the de-
fendant were not its true reasons, but were a pretext for
discrimination.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
252-53 (1981) (quoting McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)) (citations omitted); see Reeves v.
Sanderson Plumbing Prods., 68 U.S.L.W. 4480, 4482 (U.S.
June 12, 2000). It is also true that "[t]o establish a prima
facie case under the McDonnell Douglas framework, [a plain-

__________
tions of [a] pro se complaint ... to less stringent standards than
formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S.
519, 520 (1972). However, because we decide this appeal in Spar-
row's favor under the standards applicable to represented plaintiffs,
we need not decide whether Sparrow--who graduated from Har-
vard Law School but is not now licensed to practice law--would be
entitled to the benefit of the less stringent pro se standards
enunciated by the Court.

tiff] must demonstrate (1) that she is a member of a protected
class; (2) that she was similarly situated to an employee who
was not a member of the protected class; and (3) that she
and the similarly situated person were treated disparately."
Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999).3

None of this, however, has to be accomplished in the
complaint itself. Under Federal Rule of Civil Procedure
8(a)(2), a claim need only contain "a short and plain statement
of the claim showing that the pleader is entitled to relief."
Rule 8(e)(1) states that "[e]ach averment of a pleading shall
be simple, concise, and direct. No technical forms of pleading
or motions are required." And Rule 8(f) instructs that "[a]ll
pleadings shall be so construed as to do substantial justice."
In Conley v. Gibson, the Supreme Court interpreted these
rules to mean 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." 355 U.S. 41, 45-46 (1957).
The Court went on to hold that

the Federal Rules of Civil Procedure do not require a
claimant to set out in detail the facts upon which he
bases his claim. To the contrary, all the Rules require is
"a short and plain statement of the claim" that will give
the defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.... Such simplified
"notice pleading" is made possible by the liberal opportu-
nity for discovery and the other pretrial procedures
established by the Rules to disclose more precisely the
basis of both claim and defense and to define more
narrowly the disputed facts and issues.

Id. at 47-48 (citations omitted).

The grounds for the district court's dismissal of Sparrow's
complaint are inconsistent with Rule 8 and Conley. Sparrow

__________
3 Although the McDonnell Douglas framework was established
for proving racial discrimination under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. ss 2000e et seq., the same framework is used
for evaluating claims under 42 U.S.C. s 1981. See Carney, 151
F.3d at 1092-93.

did not have to "make out a prima facie case of discrimina-
tion" in his complaint, specifically point to "similarly situated
employees who were given preferential treatment over him,"
or offer "evidence to demonstrate that [United's] reasons for
firing him were pretextual." Sparrow, slip op. at 17.4 To the
contrary, "[c]omplaints 'need not plead law or match facts to
every element of a legal theory.' " Krieger v. Fadely, 211
F.3d 134, 136 (D.C. Cir. 2000) (quoting Bennett v. Schmidt,
153 F.3d 516, 518 (7th Cir. 1998)); see Caribbean Broad. Sys.,
Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir.
1998) ("[A] plaintiff need not allege all the facts necessary to
prove its claim."); Atchinson v. District of Columbia, 73 F.3d
418, 421-22 (D.C. Cir. 1996) ("A complaint ... need not allege
all that a plaintiff must eventually prove ...."); Sinclair v.
Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983) ("The Federal
Rules of Civil Procedure do not require a claimant to set out
the precise facts on which the claim is based.... 'Notice
pleading' is sufficient.").

Nor are discrimination or other civil rights complaints
different in this regard. Conley itself involved a class action
by African-American railroad clerks who alleged that their
union had breached its duty of fair representation by discrim-
inating against them in violation of their rights under the
Railway Labor Act, 45 U.S.C. ss 151 et seq. In reversing the
dismissal of the complaint under Rule 12(b)(6), the Court
rejected defendant's argument that dismissal was proper
because "the complaint failed to set forth specific facts to
support its general allegations of discrimination." Conley,
355 U.S. at 47. Thiry-five years later, in Leatherman v.
Tarrant County, the Supreme Court reaffirmed the continu-
ing vitality of Conley, rejecting the suggestion that a
" 'heightened pleading standard'--more stringent than the
usual pleading requirements of Rule 8(a)" should apply in civil

__________
4 See Powell v. Ridge, 189 F.3d 387, 394 (3d Cir. 1999); Ortez v.
Washington County, 88 F.3d 804, 808 (9th Cir. 1996); Ring v. First
Interstate Mortgage, Inc., 984 F.2d 924, 926-27 (8th Cir. 1993).

rights cases brought under 42 U.S.C. s 1983. 507 U.S. at
164; see id. at 167-68 (citing Conley, 355 U.S. at 47).

This court has followed the Supreme Court's lead. In
Atchinson, for example, we reversed the dismissal of a com-
plaint alleging that a municipality had violated a plaintiff's
civil rights by failing to train or supervise its police officers.
See 73 F.3d at 419. Citing Conley and Leatherman, we
rejected the district court's conclusion that plaintiff's com-
plaint was deficient because it "failed to identify a specific
custom, policy statement, or procedure that caused his inju-
ries," and otherwise "failed to state facts supporting" its
allegations. Id. at 422. It was enough, we said, that plaintiff
"alleg[ed] that [the police officer] shot him in broad daylight
on a city street so quickly after [plaintiff] was ordered to
'freeze.' " Id.

In sum, we agree with the conclusion reached by Judge
Easterbrook in Bennett: "Because racial discrimination in
employment is 'a claim upon which relief can be granted,'....
'I was turned down for a job because of my race' is all a
complaint has to say" to survive a motion to dismiss under
Rule 12(b)(6). Bennett, 153 F.3d at 518; see Krieger, 211
F.3d at 136 (citing Bennett with approval).

B

Plaintiff's complaint readily meets the standard of Conley
and its progeny. Count Five5 expressly states that it "is
founded upon 42 United States Code s 1981 for a disparate
and discriminatory application by the Defendants of the per-
sonnel, compensation, and termination policies of Defendant
United because of his race." Compl. p 76. It goes on to
charge that the "discriminatory, offensive, and invidious treat-
ment which the Plaintiff has experienced" was "motivated and
predicated in principal part by a pervasive distaste for the
racial ethnicity of the Plaintiff." Id. p 77. And, in words that
presage the district court's own decision concerning the re-
quirements of a prima facie case, it alleges that "a similarly
situated male Caucasian United States citizen employee of

__________
5 There are two counts labeled "Five" in the amended complaint.
We refer here to the second of the two.

defendant United would not have experienced such disparate
treatment culminating in termination." Id.

Indeed, the complaint goes into considerably more detail,
fleshing out specific claims of both discriminatory failure to
promote and discriminatory termination.

With respect to promotion, the complaint alleges that there
were

continuing violations of public policy in an atmosphere of
pervasive racial discrimination beginning with: (a) the
failure of the United Air Lines Sales Department in
September 1995 to hire the Plaintiff as an Account
Representative at the Washington Reservations Center
(IADRR); continuing with the refusal to allow the Plain-
tiff to interview for the vacant position of Manager,
Vendor Contracts & Services at the Maintenance Opera-
tions Center (SFOPP) and the hiring of a Caucasian who
had been unsuccessful in her application to become a
peer of the Plaintiff as a Senior Contracts Specialist in
May, 1998.

Id. at 3. The complaint further alleges that as part of the
promotion process, in September 1995 United conducted
" 'subjective' performance tests" that it refused to show "were
either 'validated,' 'job related,' or 'required by business neces-
sity' as mandated by the various State and Federal Civil
rights laws," id. p 20-21, and that "all of the 'successful'
candidates from the IADRR September Testing session were
Caucasian," id. p 20.6 See id. pp 33, 36, 38, 43.

With respect to the termination claim, Sparrow alleges that
"[t]he conduct of the named Defendants and their co-
conspirators culminated in the wrongful termination of the
Plaintiff, Victor H. Sparrow, III, an African-American male
citizen ... in violation of the anti-discrimination laws ... of
the United States." Id. at 5. That termination occurred, he

__________
6 Although these paragraphs of the complaint are formally alleged
as part of Count One, which charges only breach of contract, they
(and all of paragraphs 1-70) are expressly incorporated into Count
Five by reference. See Compl. p 75.

alleges, notwithstanding that "[d]uring the period of his em-
ployment by Defendant United ... the Plaintiff performed in
a skillful and workmanlike manner," receiving "three (3)
outstanding 'Employee Performance Reviews' and two (2)
competitive promotions." Id. at 6; see id. pp 14(b), 15. The
complaint goes on to state: "The Plaintiff contends that he
would not have been terminated had he been a similarly
situated Caucasian male," id. at 6, and further complains that
in firing him, "Defendants failed to follow the termination
procedure set out" in United's management handbook, id.
p 49. This detail was more than was necessary to constitute
the "short and plain statement" required by Rule 8(a).

In some cases, it is possible for a plaintiff to plead too
much: that is, to plead himself out of court by alleging facts
that render success on the merits impossible. See Bennett,
153 F.3d at 519. In this case, Sparrow came close to crossing
that line by stating in his complaint that: (a) he was convicted
of multiple felonies in 1982, see Compl. p 1; (b) he answered
"no" when asked on his United employment application
whether he had ever been convicted of a felony, id. p 9; and
(c) United advised him that he was being terminated because
of his dishonesty in failing to reveal the 1982 convictions, see
id. p 48. As noted above, under the McDonnell Douglas
framework, even if a plaintiff succeeds in establishing a prima
facie case, an employer can overcome the resulting burden by
" 'articulat[ing] some legitimate, nondiscriminatory reason for
the employee's rejection.' " Burdine, 450 U.S. at 252-53
(quoting McDonnell Douglas, 411 U.S. at 802). Intentional
dishonesty on an employment application surely constitutes
such a reason.

But that is not the end of the matter. First, this nondis-
criminatory reason would apply at most to Sparrow's termi-
nation claim; the complaint does not suggest that United
knew of Sparrow's false statement at the time his requests
for promotion were rejected. See McKennon v. Nashville
Banner Publ'g Co., 513 U.S. 352, 360-63 (1995) (holding that

after-acquired evidence can serve only to limit remedy, not to
preclude liability altogether).7

Second, even where "the defendant carr[ies] [its] burden"
of articulating a nondiscriminatory reason for its actions, "the
plaintiff must then have an opportunity to prove by a prepon-
derance of the evidence that the legitimate reasons offered by
the defendant were not its true reasons, but were a pretext
for discrimination." Burdine, 450 U.S. at 253; see Reeves, 68
U.S.L.W. at 4482. Although the district court correctly noted
that plaintiff had "offered no evidence to demonstrate that
[United's] reasons for firing him were pretextual," Sparrow,
slip op. at 17, Sparrow had not yet had the opportunity to do
so. The district court had stayed all discovery pending its
decision on the motion to dismiss. See Sparrow v. United
Air Lines, Inc., No. 98-02194 (D.D.C. Dec. 22, 1998) (order
staying discovery); cf. Bennett, 153 F.3d at 519 ("Litigants
are entitled to discovery before being put to their proof.").
Moreover, plaintiff's complaint did repeatedly allege that his
1982 convictions were "employed as a pretext for termi-
nation," and that "a similarly situated Caucasian employee"
would not have been terminated on the same grounds.
Compl. at 3; see id. at 1, 6. As with any other factual
allegation in a complaint, we must treat this one as true for
purposes of evaluating dismissal under Rule 12(b)(6). See
Leatherman, 507 U.S. at 164. 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." Conley, 355 U.S.
at 45-46. Although it may be doubtful whether Sparrow
ultimately will be able to establish that his conceded dishones-
ty was a mere pretext, we cannot say it is "beyond doubt"
that he can prove no set of facts that would do so.

II

Before concluding, we briefly consider two additional issues
raised by the parties.

__________
7 United's brief concedes that the company did not know of
plaintiff's dishonesty until September 1997, long after the allegedly
discriminatory failures to promote occurred. See United Br. at 7-8.

 First, United urges us to reject Sparrow's failure-to-
promote claim on the ground that he waived it below. The
district court did not dismiss on the ground of waiver, and we
do not believe there was one. As we held in Part I, Spar-
row's complaint sets forth a claim of discriminatory failure to
promote in sufficient detail to survive a motion to dismiss.
United contends that Sparrow waived that claim by not
arguing it in his opposition to United's Rule 12(b)(6) motion.
It was United, however, that failed to argue the point. The
company acknowledges that in its motion to dismiss it "did
not separately address whether the amended complaint states
a claim for race discrimination in promotions." United Br. at
5.8 In fact, United did not mention the promotion issue at all,
addressing only the allegation of discriminatory discharge.
See United Mem. in Supp. of Mot. to Dismiss at 8. Sparrow,
on the other hand, noted United's omission and complained
that "Defendants ignore the events alleged to have occurred"
in connection with the specific failures to promote. Sparrow
Mem. in Opp'n to Mot. to Dismiss at 11.9 Sparrow then went

__________
8 United contends that it did not address the failure-to-promote
issue because Count Five of the complaint (entitled "Violation of the
Federal Civil Rights Act") did "not allege that the lost promotions
were caused by race discrimination." United Br. at 5. But as we
have noted above, that count did allege violations of 42 U.S.C.
s 1981 for "disparate and discriminatory application by the defen-
dants of the personnel, compensation, and termination policies of
Defendant United because of his race." Compl. p 76 (emphasis
added). And while United is correct that the allegations that
plaintiff did not receive three promotions for which he applied were
made elsewhere in the complaint, see id. pp 18-20, 33, 35-36, 38, 40-
41, 43, those paragraphs were "incorporated by reference" in Count
Five "as if fully set out" therein, id. p 75. See supra note 6; see
also Compl. at 3 (describing failures to promote as occurring "in an
atmosphere of pervasive racial discrimination").

9 See Sparrow Mem. in Opp'n at 11 (noting, with citations to
paragraphs of the complaint, United's failure to address the "events
alleged to have occurred at the Washington Reservations Center or
those involving the United Department of Governmental Affairs in
Washington, or the denial of an interview opportunity for the
Manager of Vendor Contracts").

on to discuss United's argument relating to the allegation of
discriminatory discharge. See id. at 12-13. Nothing more
was required to preserve the failure-to-promote claim.

Second, Sparrow seeks review of the district court's grant
of United's motion for sanctions against him under Federal
Rule of Civil Procedure 11. The district court has not yet
fixed the amount of sanctions to be imposed. As a conse-
quence, United contends that the sanctions order is not
"final" and thus is not reviewable under 28 U.S.C. s 1291,
which grants courts of appeals jurisdiction over appeals from
final decisions of the district courts. See Gilda Marx, Inc. v.
Wildwood Exercise, Inc., 85 F.3d 675, 677 (D.C. Cir. 1996).
Although we may nonetheless have discretion to exercise
pendant jurisdiction to review the non-final Rule 11 order
along with the final dismissal under Rule 12(b)(6), see id. at
678, we will not exercise that discretion in this case. "[W]e
entertain pendant appeals only when substantial consider-
ations of fairness or efficiency demand it," id. at 679, and
those considerations are absent here. There is no reason to
believe that the interest in judicial economy would be served
by deciding the sanctions issue now, nor do we have before us
a record sufficient to permit a fair determination of its merits.
Moreover, since no sanctions have yet been imposed, the
plaintiff will not be injured by awaiting final resolution of the
issue in the district court.

III

We understand why district courts may want to alleviate
their crowded dockets by disposing quickly of cases that they
believe cannot survive in the long run. But as the Supreme
Court held in Leatherman, this may not be accomplished by
employing heightened pleading standards except in those
cases specifically listed in Federal Rule 9(b).10 Rather, "fed-

__________
10 See Leatherman, 507 U.S. at 168 (noting that Rule 9(b) imposes
a particularity requirement in only two specific instances: fraud and
mistake); Fed. R. Civ. P. 9(b) ("In all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be
stated with particularity.").

eral courts and litigants must rely on summary judgment and
control of discovery to weed out unmeritorious claims sooner
rather than later." Leatherman, 507 U.S. at 168-69; see
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("[I]t may appear
on the face of the pleadings that a recovery is very remote
and unlikely but that is not the test."); Krieger, 211 F.3d at
136.

Under Rule 8, all that is required is that "the complaint
give[ ] the defendants fair notice of each claim and its basis."
Atchinson, 73 F.3d at 422; see Krieger, 211 F.3d at 136. We
have no doubt that Sparrow's complaint did so. See United
Br. at 3 (acknowledging that "Sparrow alleged in the amend-
ed complaint that he was passed over for three promotions,
and that he was ultimately discharged by United because he
is African-American"). Accordingly, we reverse the dismissal
of plaintiff's section 1981 claims and remand for further
proceedings consistent with this opinion.