Pleading standards are important. A judge’s decision about whether a complaint is adequate can make the difference between winning or losing a case.
Lawyers have been in a tizzy about a pair of Supreme Court decisions, Twombly and Iqbal, in which the Supreme Court allowed cases to be dismissed merely because the plaintiffs could not be specific enough about their claims to make their cases “plausible.” These decisions protected Bell Atlantic from an anti-trust claim, and former Attorney General Ashcroft from liability for the prison beating of Javad Iqbal shortly after the 9/11 attacks.
Employers have jumped on Twombly and Iqbal by seeking immediate dismissal of almost every discrimination, retaliation and consumer rights case. Lawyers had to adapt by becoming more specific in their pleadings, anticipating the facts they would need to survive the initial motion to dismiss. It had seemed that the old days of “notice pleading” were over.
A new decision from the Supreme Court, however, has made a major clarification of Twombly and Iqbal. In Johnson v. City of Shelby, Mississippi, the Supreme Court said that Twombly and Iqbal only apply to a party’s factual allegations, and there is normally no requirement to plead the legal theory of liability.
Tracey Johnson and other Shelby police officers filed their lawsuit after the City fired them. They claimed that the City fired them because they uncovered criminal activity by one of the City’s aldermen. The lower courts had dismissed their lawsuit because they had failed to cite the applicable statute in their complaint. That statute, 42 U. S. C. §1983, is also called the Civil Rights Act of 1871. Congress responded to violence by the Klu Klux Klan by allowing victims to sue when anyone acting “under color of state law” deprived them of federally guaranteed rights.
The Supreme Court reminds us that, “[f]ederal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” Fed. Rule Civ. Proc. 8(a)(2). The rules, “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.”
The Supreme Court specifically approved of a leading case on pleading standards that pre-dates Twombly and Iqbal, Swierkiewicz v. Sorema N. A., 534 U. S. 506, 512 (2002). In Swierkiewicz, the Supreme Court unanimously struck down a requirement the Second Circuit had dreamed up just for discrimination victims. It required them to explain how they would meet the prima facie case described in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973).
The Supreme Court said that requiring such specific pleading is inappropriate because (1) there are other ways to prove discrimination besides the McDonnell Douglas inference; (2) “[b]efore discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case”; and (3) the rules only require a plaintiff to “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.”
The Johnson decision makes clear that these reasons still apply today. Not only did the Supreme Court issue this decision without a dissent, it did so without the normal briefing. Johnson and the other police officers appealed to the Supreme Court without a lawyer. Before deciding to accept the case, the Supreme Court decided to issue a decision in their favor to reinstate their case and send it back for discovery.
“Notice pleading” is the correct standard for pleading discrimination claims; Swierkiewicz is still good law; and Twombly and Iqbal are no longer reasons for such a tizzy.____________________________
RICHARD RENNER is Of Counsel to the law firm of Kalijarvi, Chuzi, Newman & Fitch, P.C. He has more than 30 years experience representing employees in a wide range of civil rights and whistleblower cases. He has particular experience in using litigation to advance the rights of employees. He served as Co-Chair of the Whistleblower Committee of the National Employment Lawyers Association (NELA), is a Co-Chair of NELA's Ethics & Sanctions Committee, and won election to NELA's Executive Board in 2014.