The trouble with twombly: A proposed pleading standard for employment discrimination cases

University of Illinois Law Review

Volumn 2009, Issue 4, 2009, Pages 1011-1060

  Seiner, Joseph A ^a  

^a UNIVERSITY OF SOUTH CAROLINA   (United States)

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[No Author keywords available]

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EID: 70349554621     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (146)

1. Audio Recording of Oral Argument, EEOC v. Concentra, 4% F.3d 773 (7th Cir. 2007) (No. 06-3436), available at http://www.ca7.uscourts.gov/fdocs/docs. fwx?caseno=06-3436&submit=showdkt&yr=06&num=3436. These comments were made only four days after the Supreme Court's Twombly decision. Id.
2. Paul Healey, De Minimus Curat Lex: A Compendium of Legal Trivia, 89 Law LIBR. J. 55, 84 (1997).
3. See 42 U. S. C. § 2000e-e-17 (2006).
4. 127 S. Ct. 1955 (2007). While this Article was in the process of going to print, the Supreme Court issued its decision in Ashcroft v. Iqbal, No. 07-1015 (U. S. May 18, 2009), http://www.supremecourtus.gov/opinions/08pdf/07-1015.pdf. Iqbal confirms that the plausibility standard announced in Twombly applies to "all civil actions, " id. at 20, but did not otherwise alter the Twombly standard. Further analysis of the impact of Iqbal on employment discrimination cases will be warranted, but the proposed pleading framework set forth in this Article should remain valid even after Iqbal.
5. Twombly, 127 S. Ct. at 1969.
6. 355 U. S. 41 (1957).
7. Id. at 45-16.
8. Twombly, 127 S. Ct. at 1974 (emphasis added).
9. See discussion infra Parts V, VII (discussing the approach of federal courts and legal scholarship in light of the Twombly decision).
10. To find cases citing Twombly, 127 S. Ct. 1955, I ran a Westlaw KeyCite search of the case on February 4, 2009.
11. See Twombly, 127 S. Ct. at 1961.
12. See discussion infra Parts V, VII (discussing the approach federal courts have taken to Twombly and the views of academic scholarship).
13. See, e.g., Wilkerson v. New Media Tech. Charter Sch., 522 F.3d 315, 321 (3d Cir. 2008) ("[T]he exact parameters of the Twombly decision are not yet known.....").
14. See discussion infra Part V. B (discussing the approaches of the Third Circuit and Seventh Circuit after Twombly).
15. See A. Benjamin Spencer, Pleading Civil Rights Claims in the Post-Conley Era, 52 How. L. J. 99, 158-61 (2008) (arguing that an overly rigid approach to civil rights claims after Twombly may prevent valid cases from proceeding).
16. See discussion infra Part I V. D. (explaining the results of the FJC study).
17. See Spencer, supra note 15, at 160.
18. See id.
19. See, e.g., Mark D. Robins, The Resurgence and Limits of the Demurrer, 27 Suffolk U. L. REV. 637, 640 (1993).
20. Id. at 641; see also Kendall W. Hannon, Note, Much Ado About Twombly? A Study on the Impact o/Bell Atlantic Corp. v. Twombly on 12 (b) (6) Motions, 83 Notre Dame L. Rev. 1811, 1812 (2008) ("The ultimate result at common law was a complex, verbose, and convoluted pleading that did not make clear what, exactly, the suit was predicated on. ").
21. Robins, supra note 19, at 641.
22. Id. at 643 (internal quotation omitted) ;
23. see also Paul J. McArdle, A Short and Plain Statement: The Significance of Leatherman v. Tarrant County, 72 U. Det. Mercy L. Rev. 19, 23 (1994) ("The provisions governing pleadings, amendments thereof, joinder of claims and parties, and discovery were liberally structured to promote adjudication on the merits of a lawsuit and eliminate procedural traps resulting in the misdisposition of a case.").
24. See Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 MINN. L. REV. 375, 380 (1992).
25. Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 WASH. U. J. L. and POL'Y 61, 62 (2007).
26. Fed. R. CIV. P. 8 (a) (2).
27. See Robins, supra note 19, at 644;
28. see also Koan Mercer, Comment, "Even in These Days of Notice Pleadings": Factual Pleading Requirements in the Fourth Circuit, 82 N. C. L, REV. 1167, 1169-70 (2004) ("In laying out the Rules' pleading requirements, the drafters of Rule 8 (a) (2) explicitly avoided using the charged term 'facts.'").
29. Mercer, supra note 26, at 1172.
30. See Robins, supra note 19, at 644-45.
31. See discussion infra Part II. B.
32. 355 U. S. 41 (1957).
33. 534 U. S. 506 (2002).
34. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007).
35. Adam N. Steinman, The Irrepressible Myth of Celotex; Reconsidering Summary Judgment Burdens Twenty Years After the Trilogy, 63 Wash. and LEE L. REV. 81, 87 (2006).
36. McArdle, supra note 22, at 26.
37. Conley, 355 U. S. at 42-43.
38. Id. at 43.
39. Id.
40. Id.
41. Id.
42. Id. at 43-44.
43. Id. at 44-45.
44. Id. at 45-46 (emphasis added).
45. Id. at 46.
46. Id.
47. ID. at 47.
48. Id.
49. Id. at 47-48.
50. Id. at 48.
51. 42 U. S. C. § 2000e-e-17 (2006).
52. 29 U. S. C. §§ 621-634 (2006).
53. Swierkiewicz v. Sorema N. A., 534 U. S. 506, 509-10 (2002).
54. Id. at 508.
55. Id.
56. Id.
57. Id. at 509.
58. Id.
59. Id.
60. Id.
61. Id. at 509-10 (citing McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973)).
62. Id. at 509 (quoting Swierkiewicz v. Sorema N. A., 5 F. App'x 63, 65 (2d Cir. 2001)).
63. Id. at 510.
64. Id. at 511.
65. Id. (emphasis added).
66. Id. at 512 (citing Conley v. Gibson, 355 U. S. 41, 47 (1957)).
67. Id.
68. Id. at 514.
69. Id.
70. Id.
71. Id.
72. Id. at 515.
73. Fed. R. Civ. P. 8 (a) (2).
74. Conley v. Gibson, 355 U. S. 41, 45-46 (1957).
75. Swierkiewicz, 534 U. S. at 511. Indeed, though a short opinion, the Swierkiewicz decision still cites the Conley decision three times. Id. at 507, 512, 514.
76. See, e.g., Michelle Foster, Causation in Context: Interpreting the Nexus Clause in the Refugee Convention, 23 MICH. J. INT'L L. 265, 320n. 239 (2002) ("In the context of discrimination claims pursuant to Title VII of the Civil Rights Act of 1964, [intent] has long been the key requirement for a successful discrimination claim. In Int I Bd. of Teamsters v. United States, the Supreme Court held that '[p]roof of discriminatory motive is critical.'" (citation omitted)).
77. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1961-62 (2007).
78. Citations to Twombly were found by running a KeyCite search on Westlaw. See also Hannon, supra note 20, at 1826 n. 113 ("The finding that Twombly has been cited widely outside of the antitrust context was amply supported by my study.").
79. Twombly, 127 S. Ct. at 1961.
80. Id.
81. Id.
82. Id. at 1962;
83. see also Sherman Act, 15 U. S. C. § 1 (2006).
84. Twombly, 127 S. Ct. at 1962.
85. Id.
86. Id.
87. Id (internal quotation omitted)
88. Id.
89. Id. internal quotation omitted
90. Id. at 1962-63 (internal quotation omitted;.
91. Id. at 1963.
92. Id. (citing Twombly v. BeU Atl. Corp., 313 F. Supp. 2d 174, 188 (S. D. N. Y. 2003)).
93. Id (citing Twombly v. Bell Atl. Corp., 425 F.3d 99, 114 (2d Cir. 2005)).
94. Id at 1964.
95. Id. at 1964-65.
96. Id. at 1965.
97. Id. (emphasis added).
98. Id.
99. Id. at 1966.
100. Conley v. Gibson, 355 U. S. 41, 45-46 (1957).
101. Twombly, 127 S. Ct. at 1969.
102. Id.
103. Id. at 1970-74.
104. Id. at 1973 (quoting Conley, 355 U. S. at 514).
105. Id. at 1974.
106. Id.
107. Id. at (Stevens, J., dissenting).
108. Id. at 1978.
109. Id.
110. Id. at 1983.
111. 10a Id. at 1988 (emphasis added).
112. Id. at 1973-74 (majority opinion).
113. Id. at 1974.
114. Id. at 1988-89 (Stevens, J., dissenting).
115. 127 S. Q. 2197 (2007).
116. Id. at 2198.
117. Id. at 2200.
118. Id.
119. See Allan Ides, Bell Atlantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil Procedure 8 (a) (2) : Toward a Structured Approach to Federal Pleading Practice, in 243 Federal Rules Decisions 604, 638-39 (2007) ("One gets the sense, given Erickson's relative lack of 'certworthiness, that the rapidly prepared and issued Erickson opinion was written as a reassurance that the Bell Atlantic decision had not altered Rule 8 (a) (2) pleading principles.").
120. See Hannon, supra note 20, at 1824 ("On one end, a number of writers have concluded that Twombly is best understood as a decision extending only to pleading in antitrust contexts. At the other end, writers believe that Twombly signals a revolutionary overhaul of the entire concept of notice pleading.").
121. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1973-74 (2007).
122. Cf. Ides, supra note 116, at 635-36 (arguing that "the 'better' reading of Bell Atlantic is that it did not change the law of pleading, but that it simply applied long-accepted pleading standards to a unique body of law under which the plaintiffs' complaint failed to include any facts or plausible inferences supportive of a material element of the claim specifically asserted by the plaintiffs") ; Hannon, supra note 20, at 1824.
123. See Hannon, note 20, at 1824 ("On one point the [various views] appear to be in agreement-Twombly means an increase in the litigation over pleadings before federal district courts.").
124. See id. at 1824 (discussing the divergent views).
125. See id. at 1837 (explaining the results of the study).
126. See id. at 1840-42 (discussing potential rationales for dismissal rates in civil rights cases).
127. See id. at 1836 n. 161. Indeed, the most significant difference of my study is its emphasis on employment discrimination decisions.
128. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1955 (2007).
129. Cf. Hannon, supra note 20, at 1829 (similar empirical study noting that the goal was not to demonstrate "the absolute rates of dismissal in federal district courts; it is a comparison of the relative 12 (b) (6) dismissal rates between pre-Twombly and post-Twombly reported district court cases"). Moreover, it is possible that a broader study of all 12 (b) (6) motions to dismiss-irrespective of citation to Twombly or Conley-could obscure the impact of those courts actually relying on these Supreme Court decisions. Nonetheless, further research in this area would certainly be beneficial and provide additional insight into the dismissal rate of employment cases.
130. See generally Joseph A. Seiner, The Failure of Punitive Damages in Employment Discrimination Cases: A Call for Change, 50 Wm. and Mary L. Rev. 735 (2008) (conducting analysis using the Westlaw database) ;
131. Harmon, supra note 20 (conducting an empirical analysis of the Twombly decision using the Westlaw database) ;
132. cf Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. Rev. 701 (2006) (conducting empirical research on an employment issue using the Lexis database).
133. The exact Westlaw search performed was " (Conley) /250 ("failure to state a claim" "12 (b) (6) ") /250 "Title VII" and DA (after 5/14/2006) and DA (before 5/14/2007)." The study included a short period between the ending date for the search and the date on which the Twombly decision was issued.
134. The exact Westlaw search performed was " (Twombly) /250 ("failure to state a claim" "12 (b) (6) ") /250 'Title VII" and DA (after 5/31/2007) and DA (before 6/1/2008)."
135. It is possible that these searches will reveal additional decisions over time, as Westlaw adds additional cases to its database on occasion. See Seiner, supra note 127, at 757 n. 134. The size of the data sets was accurate as of the completion of this study on July 3, 2008. Additionally, where the above searches identified motions for judgment on the pleadings, these decisions were included in the data results, though they were not the primary focus of the study. Moreover, if a case involved multiple motions to dismiss that resulted in multiple opinions during the relevant time period, each opinion was treated as a separate case. To the extent that multiple motions to dismiss were analyzed by a district court in a single decision, they were treated as a single motion for purposes of this study.
136. See supra notes 128-29 (discussing the exact search terms used for the study). For example, the search I construct ed limited the decisions to those that used the term "Conley" within 250 words of "failure to state a claim" or "12 (b) (6)." A larger data set could have been achieved by eliminating the 250 word restriction, but many of the resulting additional cases would likely have been of more questionable relevance to the study.
137. To the extent that a particular decision was reconsidered in a later decision by a district court or appealed to an appellate court, such subsequent case history was not factored into the analysis.
138. *4 (W. D. Ky. May 2, 2008) ("[T]he EEOC's claims for monetary damages on behalf of [two individuals] are dismissed with prejudice.").
139. A number of district court decisions involved pro se litigants. As these plaintiffs are still subject to the requirements of the Federal Rules, I kept these opinions as part of the study. As part of the analysis, however, I catalogued the cases where the plaintiff was not represented by counsel, so that these cases could be separated out as part of a future study. See, e.g., Hannon, supra note 20, at 1832 (not including pro se plaintiffs as part of the study).
140. See id. at 1830 (discussing the benefit of limiting an analysis of decisions issued before Twombly).
141. See id. at 1830-31 (noting two benefits of analyzing motions to dismiss issued immediately after the Twombly decision).
142. See Summaries of District Court Decisions on Title VII Motions to Dismiss in the Year Before and After Twombly (2008) [hereinafter Case Analysis] on file with author
143. Id.
144. Id.
145. Id. As discussed in the following Section, however, this differential is not statistically significant. See infra Part IV. C.
146. Hannon, supra note 20, at 1829.