Labor & Employment– Failure-to-Hire Claims Not ‘Plausible’

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McCleary-Evans v. Md. Dep’t of Transportation (Lawyers Weekly No. 001-052-15, 27 pp.) (Niemeyer, J.) No. 13-2488, March 13, 2015; USDC at Baltimore, Md. (Blake, J.) 4^th Cir.

Holding: An African-American female with over 20 years’ experience as a project manager on environmental regulatory compliance projects with two Maryland state agencies who alleges the biased decision-makers for two environmental compliance jobs for which white applicants were hired, instead of plaintiff, has failed to state plausible Title VII claims for race and sex discrimination; a split 4^th Circuit panel affirms dismissal of her complaint.

The district court said plaintiff’s complaint offered 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 two members of the hiring review panel and the races of the two applicants hired for the positions.

On appeal, plaintiff appropriately argues that in light of Swierkiewica v. Sorema NA, 534 U.S. 506 (2002), 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 it fails to state a plausible claim for relief under Title VII.

Plaintiff did not allege facts sufficient to claim the reason the Highway Administration failed to hire her was because of her race or sex. The allegation that the Highway Administration did not hire her because its decision makers were biased is simply too conclusory. Plaintiff 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. Her complaint stopped short of the line between possibility and plausibility of entitlement to relief.

In addition to the fact that the complaint in Swierkiewicz contained more relevant factual allegations for stating a Title VII claim than does this plaintiff’s complaint, the court at that time also applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.

The consequence of allowing this complaint to proceed 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.

Dismissal affirmed.

Dissent

Wynn, J., dissenting in part: I do not agree with that part of the majority’s opinion that affirms dismissal of plaintiff’s claim that she was discriminated against because of her race. The apparent tension between the Supreme Court’s decisions in Iqbal and Swierkiewicz is well-documented. As the former case involved a suspected terrorist alleging mistreatment and the latter involves a Title VII plaintiff alleging wrongful termination due to national origin, I have little difficulty deciding which case has greater applicability to the run-of-the-mill employment discrimination case before us.

At the early stages of Title VII litigation, borderline conclusory allegations may be all that are 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. Because plaintiff’s complaint states a plausible claim of discrimination on the basis of race, I respectfully dissent.