No. 22-1144

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

 

 


MARTHE LATTINVILLE-PACE,

Plaintiff-Appellant,

 

v.

 

INTELLIGENT WAVES LLC,

Defendant-Appellee.

 

 


On Appeal from the United States District Court
for the Eastern District of Virginia

Hon. Liam O’Grady

Case No. 1:21-cv-698

 

 


BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL

 

 


CHRISTOPHER LAGE

Deputy General Counsel

JENNIfer s. goldstein

Associate General Counsel

elizabeth e. theran

Assistant General Counsel

JEREMY D. HOROWITZ

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2549

jeremy.horowitz@eeoc.gov


TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................................................... ii

STATEMENT OF INTEREST...................................................... 1

STATEMENT OF THE ISSUE..................................................... 2

STATEMENT OF THE CASE...................................................... 2

ARGUMENT................................................................................. 5

Lattinville-Pace’s FAC Sufficiently Alleged a Claim of Wrongful Termination Under the ADEA............................. 5

A.         The governing pleading standard only requires alleging facts that make out a facially plausible claim for relief, providing the defendant fair notice of the claim and its factual basis.......................................... 5

B.          Lattinville-Pace’s FAC sufficiently stated a claim under the Federal Rules of Civil Procedure and applicable precedents from the Supreme Court and this Court................................................................. 10

CONCLUSION............................................................................ 21

CERTIFICATE OF COMPLIANCE............................................ 23

 


 

TABLE OF AUTHORITIES

      Page(s)

Cases

Abrams v. Dep’t of Pub. Safety,
764 F.3d 244 (2d Cir. 2014)..........................................
18

Arthur v. Pet Dairy,
593 F. App’x 211 (4th Cir. 2015)..................................
15

Ashcroft v. Iqbal,
556 U.S. 662 (2009)...............................................
passim

Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)...............................................
passim

Bing v. Brivo Sys., LLC,
959 F.3d 605 (4th Cir. 2020).........................................
18

Carson v. Lake Cnty.,
865 F.3d 526 (7th Cir. 2017).........................................
15

Castleberry v. STI Grp.,
863 F.3d 259 (3d Cir. 2017)..........................................
18

Causey v. Balog,
162 F.3d 795 (4th Cir. 1998).........................................
19

EEOC v. Aerotek, Inc.,
815 F.3d 328 (7th Cir. 2016).........................................
18

Francis v. Giacomelli,
588 F.3d 186 (4th Cir. 2009).....................................
9, 13

Goldfarb v. Mayor & City Council of Balt.,
791 F.3d 500 (4th Cir. 2015).........................................
10

Greene v. Safeway Stores, Inc.,
98 F.3d 554 (10th Cir. 1996).........................................
18

Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009)................................................
10, 15

Guessous v. Fairview Prop. Invs., LLC,
828 F.3d 208 (4th Cir. 2016).........................................
16

Haskett v. T.S. Dudley Land Co.,
648 F. App’x 492 (5th Cir. 2016)..................................
21

Houck v. Substitute Tr. Servs., Inc.,
791 F.3d 473 (4th Cir. 2015)...................................
10, 17

Leal v. McHugh,
731 F.3d 405 (5th Cir. 2013).........................................
15

Martinez v. UPMC Susquehanna,
986 F.3d 261 (3d Cir. 2021)..........................................
20

McCleary-Evans v. Md. Dep’t of Transp.,
780 F.3d 582 (4th Cir. 2015)..................................
passim

O’Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308 (1996)......................................................
12

Patrick v. Ridge,
394 F.3d 311 (5th Cir. 2004).........................................
17

Ray v. Amelia Cnty. Sheriff’s Off.,
302 F. App’x 209 (4th Cir. 2008)............................
19, 20

Robinson v. City of Phila.,
491 F. App’x 295 (3d Cir. 2012)...................................
15

SD3, LLC v. Black & Decker (U.S.) Inc.,
801 F.3d 412 (4th Cir. 2015).........................................
17

Sheppard v. David Evans & Assocs.,
694 F.3d 1045 (9th Cir. 2012).................................
18, 20

Swanson v. Citibank, N.A.,
614 F.3d 400 (7th Cir. 2010).........................................
18

Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002)..........................................
6, 8, 9, 18

Tobey v. Jones,
706 F.3d 379 (4th Cir. 2013)...........................................
9

Wooten v. McDonald Transit Assocs., Inc.,
788 F.3d 490 (5th Cir. 2015).........................................
21

Zee Co. v. Williams, Mullen, Clark & Dobbins, P.C.,
547 F. App’x 166 (4th Cir. 2013)..................................
16

Statutes

Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.......................................................... passim

29 U.S.C. § 623(a)(1).................................................... 10

29 U.S.C. § 631(a)........................................................ 10

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq....................................................... 6, 8, 9, 16

Other Authorities

Fed. R. App. P. 29(a)........................................................... 2

Fed. R. Civ. P. 8(a)(2)................................................. passim

Fed. R. Civ. P. 8(d)(2)........................................................ 16

Fed. R. Civ. P. 8(d)(3)........................................................ 16

Fed. R. Civ. P. 12(b)(6)...................................... 6, 10, 17, 21

           

 


STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with administering and enforcing federal laws prohibiting workplace discrimination, including the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq.  This appeal concerns the proper pleading standard for claims under the ADEA, an issue of central importance to the EEOC.  In her complaint, the plaintiff alleged that she was exceptionally qualified for her position and performing at a high level but was nevertheless terminated without warning and replaced with someone twenty-seven years younger and less qualified, allegedly because defendant concluded that she was not a “cultural fit.”  The employer then went on to fire several other high-level executives and others who were near or over sixty years old. 

The district court dismissed the plaintiff’s claim of age discrimination because it found that the complaint asserted “conclusory allegations” rather than “facts that show that her age was the but-for cause of her termination.”  JA.34.[1]  In so ruling, the court incorrectly imposed a heightened pleading standard on the plaintiff that exceeded the requirements established in Federal Rule of Civil Procedure 8(a)(2).  Because the EEOC has a strong interest in the proper application of pleading standards to ADEA claims, it offers its views to the Court.  See Fed. R. App. P. 29(a).  

STATEMENT OF THE ISSUE[2]

Where the plaintiff’s complaint alleged, in detail, that she was highly qualified and performing well, and that the defendant fired her without warning and replaced her with a significantly younger, less-qualified and less-experienced individual, around the same time that it fired several other employees who were near or over sixty years old, did the district court err in concluding that she failed to state a plausible claim of age discrimination under the ADEA?

STATEMENT OF THE CASE

Plaintiff Marthe Lattinville-Pace alleged in her Amended Complaint (“FAC”) that she began working for Defendant Intelligent Waves LLC as its Senior Vice President of Human Resources on April 1, 2019, when she was sixty-five or sixty-six years old.[3]  JA.10 (FAC ¶ 29).  At the time of her hire, Lattinville-Pace had forty years of experience in human resources (“HR”), including twenty-five years of leadership experience overseeing workforces in the thousands at Fortune 100 and 200 companies in the high-tech, governmental contractor, and service industries in the United States, Canada, Europe, India, and the Middle East.  JA.8, 20 (FAC ¶¶ 22-23, 65).  She also had a bachelor’s degree, an MBA, a Leadership Certification in HR, and various other relevant certifications.  JA.9, 21 (FAC ¶¶ 25, 67).  The FAC alleged that Lattinville-Pace performed well at Intelligent Waves, accomplished a number of goals, and received uniform praise from the company’s senior management along with a large discretionary bonus.  JA.10-15 (FAC ¶¶ 30-36, 39-43). 

Intelligent Waves hired Tony Crescenzo as its president on April 27, 2020.  JA.16 (FAC ¶ 47).  Lattinville-Pace alleged that she had weekly one-on-one meetings with Crescenzo during which she received exclusively positive feedback.  JA.13, 16 (FAC ¶¶ 39, 48).  But on July 22, Crescenzo terminated her during their weekly meeting, explaining only that she was not a “cultural fit.”  JA.17 (FAC ¶¶ 51, 53).  At the time of the termination Lattinville-Pace was sixty-seven years old.  JA.21 (FAC ¶ 68). 

Lattinville-Pace later learned that Crescenzo had started looking for her replacement in May 2020.  JA.19 (FAC ¶ 60).  Intelligent Waves hired Heidi Pirela, a forty-year-old, as its Chief Human Resources Officer starting on August 2.  JA.20 (FAC ¶ 62).  According to the FAC, Pirela was significantly less experienced than Lattinville-Pace, having only twenty years of HR experience with one company in one industry, where she managed a workforce of only 165 employees.  JA.8-9, 20 (FAC ¶¶ 21-24, 64-65).  Pirela also had less relevant education than Lattinville-Pace, with an MPA and an HR Certificate, compared with Lattinville-Pace’s MBA, HR Leadership Certificate, and additional relevant certifications.  JA.9, 21 (FAC ¶¶ 25, 67).  Lattinville-Pace also alleged that she had extensive HR experience in “spinoff, merger, and acquisition integration issues,” an area of particular interest to Intelligent Waves in light of its expansion and development activities, while Pirela “had limited to no HR experience in these complex areas.”  JA.8-9, 20 (FAC ¶¶ 23, 66).  The FAC further alleged that, after firing Lattinville-Pace, Intelligent Waves also terminated two Vice Presidents, a Senior Director, and several other employees, all of whom were near or over sixty.  JA.21 (FAC ¶ 70).

Lattinville-Pace asserted claims against Intelligent Waves for, inter alia, age discrimination under the ADEA and state law.  JA.22-25 (FAC ¶¶ 71-100).  The district court granted Intelligent Waves’s motion to dismiss with prejudice, holding that Lattinville-Pace “fail[ed] to show a causal connection between her age … and her termination,” and instead “assert[ed] mere conclusions and formulaic recitations.”  JA.33.  The court concluded that the complaint “failed to assert facts that show that her age was the but-for cause of her termination,” and “d[id] not show that her age played any role in Defendant’s decision to terminate her employment — let alone the but-for cause.”  JA.34.  Instead, according to the court, the complaint noted only that “she was replaced by a woman who was 40 years old” and that “other high-level executives near or over 60 years of age were terminated.”  JA.34.  In the court’s view, these “conclusory allegations” were insufficient.  JA.34.

ARGUMENT

Lattinville-Pace’s FAC Sufficiently Alleged a Claim of
Wrongful Termination Under the A
DEA.

Under Federal Rule of Civil Procedure 8(a)(2) and cases from the Supreme Court and this Court interpreting it, the FAC sufficiently alleged a claim of wrongful termination under the ADEA.  The district court therefore erred in granting Intelligent Waves’s motion to dismiss. 

A.        The governing pleading standard only requires alleging facts that make out a facially plausible claim for relief, providing the defendant fair notice of the claim and its factual basis.

Federal Rule of Civil Procedure 8(a)(2) specifies that a civil complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”  Fed. R. Civ. P. 8(a)(2).  Such a statement “give[s] the defendant fair notice of what the … claim is and the grounds upon which it rests.”  McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 585 (4th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original)).  A defendant contending that a complaint has not met this requirement may seek dismissal for “failure to state a claim upon which relief can be granted.”  Fed. R. Civ. P. 12(b)(6).

In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court addressed these principles in the context of ADEA and Title VII claims, holding that the “short and plain statement” component of Rule 8(a)(2) did not require plaintiffs to allege specific facts making out a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  534 U.S. at 510-12.  In reaching this conclusion, the Court noted, inter alia, that “the precise requirements of a prima facie case can vary depending on the context,” and “[b]efore discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case.”  Id. at 512.  The Court also observed that imposing a heightened pleading standard in employment-discrimination cases would conflict with the plain language of Rule 8(a)(2).  Id.  Although it noted the employer’s argument that a failure to impose a higher pleading standard could “encourage disgruntled employees to bring unsubstantiated suits,” the Court explained that “[a] requirement of greater specificity for particular claims is a result that ‘must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.’”  Id. at 514-15 (quoting Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S 163, 168 (1993)).

The Supreme Court subsequently revisited its interpretation of Rule 8(a)(2) in Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), where it explained that, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”  Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570)).  Such plausibility exists if the facts alleged in the complaint allow for “the reasonable inference that the defendant is liable for the misconduct alleged.”  Id. (citing Twombly, 550 U.S. at 556).  To meet this plausibility standard, the complaint’s factual allegations must establish “more than a sheer possibility that a defendant has acted unlawfully.”  Iqbal, 556 U.S. at 678.  Instead, the complaint must contain allegations that “raise a right to relief above the speculative level.”  Twombly, 550 U.S. at 555.  “Asking for plausible grounds to infer [unlawful activity] does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [such activity].”  Id. at 556.  The facts alleged need not be “detailed,” but a complaint must provide more than mere “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” without “further factual enhancement[s].”  Iqbal, 556 U.S. at 678 (first alteration in original) (quoting Twombly, 550 U.S. at 555, 557) (also noting that “[t]hreadbare recitals of the elements of a cause of action[] supported by mere conclusory statements” and “a legal conclusion couched as a factual allegation” would not meet the standard); Twombly, 550 U.S. at 555, 557.  The Court explained that making this plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”  Iqbal, 556 U.S. at 679.

The Court noted that the plaintiff is not required to show she is likely to prove her case at the dismissal stage: “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”  Twombly, 550 U.S. at 556 (citation omitted).  Instead, the touchstone, both before and after Twombly and Iqbal, is whether the complaint “give[s] the defendant fair notice of what the … claim is and the grounds upon which it rests.”  Id. at 555 (second alteration in original) (citation omitted); id. at 565 n.10 (differentiating between an acceptable complaint with enough factual information that the defendant “would know what to answer” from an impermissible conclusory complaint affording the defendant “little idea where to begin”).

Importantly, the Court appeared to leave the core holding of Swierkiewicz intact.  In Twombly, the Court emphasized that its holding was consistent with Swierkiewicz’s conclusion that Title VII complaints do not need to meet a heightened pleading standard or set forth facts establishing a prima facie case of discrimination under McDonnell DouglasTwombly, 550 U.S. at 569-70 & n.14; see also McCleary-Evans, 780 F.3d at 586 (“To be sure, [Twombly and Iqbal] did not overrule Swierkiewiczs holding that a plaintiff need not plead the evidentiary standard for proving a Title VII claim — indeed, Twombly expressly reaffirmed Swierkiewicz’s holding that the use of a heightened pleading standard for Title VII cases was contrary to the Federal Rules’ structure of liberal pleading requirements.” (citation omitted)).  Elsewhere, Twombly cited Swierkiewicz favorably in explaining the applicable dismissal standard.  550 U.S. at 555-56, 563.  Iqbal, for its part, did not cite Swierkiewicz, either positively or negatively.

In applying these cases, this Court has emphasized certain guiding principles.  The Court has reaffirmed that Rule 8(a)(2) still requires only a “short and plain statement” of entitlement to relief, rather than detailed factual allegations, in order to provide the defendant fair notice of the claim and the factual basis on which it rests.  McCleary-Evans, 780 F.3d at 585 (quoting Twombly, 550 U.S. at 555); Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013).  Notice of a claim is not enough, however; under the Twombly/Iqbal plausibility standard, a plaintiff must also “articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief, i.e., the ‘plausibility of entitlement to relief.’”  Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).  Applying this standard, “[a] complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.”  Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (alterations and internal quotation marks omitted).  Once a plaintiff provides a plausible account of an entitlement to relief, “her complaint survives a motion to dismiss under Rule 12(b)(6), regardless of whether there is a more plausible alternative explanation.”  Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015).

B.         Lattinville-Pace’s FAC sufficiently stated a claim under the Federal Rules of Civil Procedure and applicable precedents from the Supreme Court and this Court.

Lattinville-Pace’s FAC stated a plausible ADEA claim under the Twombly/Iqbal standard as interpreted by this Court.  The ADEA applies to “individuals who are at least 40 years of age.”  29 U.S.C. § 631(a).  As to those individuals, the statute generally forbids private employers from, inter alia, discharging any of them “because of such individual’s age.”  29 U.S.C. § 623(a)(1).  ADEA plaintiffs must show that age was a “but-for” cause of their employer’s adverse action against them.  Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).

The district court concluded that the FAC “failed to assert facts that show that [Lattinville-Pace’s] age was the but-for cause of her termination.”[4]  JA.34.  To the contrary, however, the FAC’s allegations plausibly allow for the reasonable inference that Intelligent Waves terminated Lattinville-Pace — and instead hired a significantly younger and less qualified individual to fill her position — because of her age.  See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 556.

The FAC does not simply recite the pertinent elements of an ADEA claim — an employment action based on the plaintiff’s age.  Instead, it sets out the factual basis for that conclusion.  The complaint alleged that Lattinville-Pace was sixty-seven years old and performed her job satisfactorily.  JA.10-15, 21 (FAC ¶¶ 31-36, 39-43, 68).  Intelligent Waves nevertheless terminated her, vaguely telling her that she was not a “cultural fit,” and gave her job to Pirela, a less qualified, less experienced woman who was twenty-seven years younger.[5]  JA.8-9, 17, 19-21 (FAC ¶¶ 22-24, 53, 61-62, 64-67).  Intelligent Waves subsequently terminated a number of other high-level executives and other employees who were also near or over age sixty.  JA.21 (FAC ¶ 70). 

These allegations, which describe in great detail Lattinville-Pace’s positive job performance and the ways her qualifications exceeded those of her replacement, Pirela, satisfied Rule 8(a)(2) because they gave Intelligent Waves “fair notice of what the … claim is and the grounds upon which it rests” — the animating purpose behind the rule.  Twombly, 550 U.S. at 555 (alteration in original) (citation omitted); cf. id. at 565 n.10 (noting that plaintiffs’ complaint fell short of Rule 8(a)(2) because “a defendant seeking to respond to plaintiffs’ conclusory allegations … would have little idea where to begin”).  Far from merely “conclusory” labels or “naked assertion[s]” lacking “further factual enhancement[s],” Iqbal, 556 U.S. at 678, these specific details provided a plausible account of an entitlement to relief under the ADEA.  At this early stage of the litigation, nothing more is required.

McCleary-Evans provides a useful basis for comparison.  In that case, this Court affirmed dismissal of the complaint because, although the complaint noted that two jobs the plaintiff desired went instead to two non-Black candidates and contended that the decisionmakers were motivated by racial bias, it “did not include any allegations regarding the qualifications or suitability of the persons hired to fill the two positions.”  780 F.3d at 584.  Absent such allegations, the court explained, the 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.”  Id. at 586.  Such speculation, the court found, was insufficient to “support a reasonable inference” of discrimination.  Id.; see also id. (noting that a comparison of the relevant experience of the plaintiff and the comparator “is precisely the kind of allegation that is missing from [the plaintiff’s] complaint”); Iqbal, 556 U.S. at 678 (noting that to survive dismissal, a complaint must provide “further factual enhancement” beyond “labels and conclusions” and “naked assertion[s]”).

Here, in contrast, the FAC contained in spades the sort of comparative evidence this Court found lacking in McCleary-EvansSee JA.8-9, 17, 19-21 (FAC ¶¶ 22-24, 53, 61-62, 64-67).  This additional material provides the “‘factual enhancement’” needed “to cross ‘the line between possibility and plausibility of entitlement to relief.’”  Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557).  Looking at the allegations in the FAC regarding Lattinville-Pace’s and Pirela’s respective qualifications, one could reasonably infer that a discriminatory motive led Intelligent Waves to replace a more qualified employee with a less qualified one, even if other explanations are also possible. 

According to the district court, the FAC alleged only that Lattinville-Pace “was replaced by a woman who was 40 years old” and “that other high-level executives near or over 60 years of age were terminated by Intelligent Waves LLC following her own termination.”  JA.34.  But the district court was simply incorrect about this: the FAC meticulously contrasted Lattinville-Pace’s qualifications and experience with Pirela’s, providing precisely the sort of detail this Court held necessary to survive a motion to dismiss.  McCleary-Evans, 780 F.3d at 586 (explaining the importance of allegations regarding a comparator’s qualifications and experience).

More broadly, the district court erred to the extent it faulted Lattinville-Pace for failing to prove “that her age was the but-for cause of her termination.”  JA.34.  To survive a motion to dismiss, the allegations in a complaint need only show that discrimination plausibly occurred; they need not prove it conclusively.  Twombly, 550 U.S. at 556 (noting there is no “probability requirement at the pleading stage”; instead, the allegations only need to be plausible enough to create “a reasonable expectation that discovery will reveal evidence” of discrimination).  “The plausibility standard is not akin to a probability requirement.”  Iqbal, 556 U.S. at 678.

Furthermore, insofar as the district court referred to age needing to be “the” but-for cause of the termination, rather than “a” but-for cause, because it believed that Lattinville-Pace needed to show that age was the sole reason for the termination, this was also erroneous.  See JA.34 (emphases added).  For a plaintiff to prevail on an age discrimination claim against a private employer, age need not be the sole cause of an employment decision so long as it is a determinative cause.  See Arthur v. Pet Dairy, 593 F. App’x 211, 220 (4th Cir. 2015) (“[P]ursuant to Gross, for an event to be the ‘but-for cause,’ it need not be the sole cause of the adverse employment action. … Age discrimination cases often present more than one reason for an employer to take adverse action against an employee, but an employee need not refute each negative mark on his record or every possible legitimate ground for the employment decision to avoid summary judgment.”); see also Carson v. Lake Cnty., 865 F.3d 526, 533 (7th Cir. 2017) (explaining that an ADEA plaintiff must show that age was a “‘but for’ element” animating an adverse employment decision but “need not prove that age was the sole motivation underlying” the action (citation omitted)); Leal v. McHugh, 731 F.3d 405, 415 (5th Cir. 2013) (explaining, in an ADEA case, that “‘but-for cause’ does not mean ‘sole cause’”); Robinson v. City of Phila., 491 F. App’x 295, 299 (3d Cir. 2012) (“We do not require that age discrimination be the sole cause for an adverse employment decision to prevail on an age discrimination claim.”); cf. Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 218 (4th Cir. 2016) (analyzing analogous language in Title VII’s antiretaliation provision and concluding that plaintiff was required “only to show that the protected activity was a but-for cause of her termination, not that it was the sole cause”).

Nor does the availability of other plausible explanations for her termination affect the validity of Lattinville-Pace’s ADEA claim at the dismissal stage.[6]  Lattinville-Pace alleged a separate claim for national-origin discrimination under Title VII, but the Federal Rules of Civil Procedure specifically permit the pleading of alternative or inconsistent claims.  Fed. R. Civ. P. 8(d)(2) (“A party may set out two or more statements of a claim ... alternatively or hypothetically …. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.”); id. 8(d)(3) (“A party may state as many separate claims … as it has, regardless of consistency.”); Zee Co. v. Williams, Mullen, Clark & Dobbins, P.C., 547 F. App’x 166, 168 n.3 (4th Cir. 2013) (explaining that the plaintiff “was permitted to set out conflicting alternative theories in its complaint without one constituting an admission against the other”). 

Even if the FAC may also be read to include other, nondiscriminatory explanations for the termination, moreover, these are similarly not fatal to an otherwise valid complaint.  As this Court has explained, “If [a plaintiff’s] explanation is plausible, her complaint survives a motion to dismiss under Rule 12(b)(6), regardless of whether there is a more plausible alternative explanation.”  Houck, 791 F.3d at 484.  Courts may not weigh the relative probabilities of different plausible explanations at the dismissal stage.  Id.; see also SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 425 (4th Cir. 2015) (“When a court confuses probability and plausibility, it inevitably begins weighing the competing inferences that can be drawn from the complaint.  But it is not our task at the motion-to-dismiss stage to determine whether a lawful alternative explanation appears more likely from the facts of the complaint.” (citation and alteration omitted)). 

Thus, although Intelligent Waves pointed in its district court briefing to conceivable nondiscriminatory ways in which one could interpret the phrase “not a cultural fit,” R.17 (Mem. in Supp. of Mot. to Dismiss) at 6, PageID#104, these potential alternative explanations do not justify dismissal of the complaint.  See, e.g., Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (“[A] hiring official’s subjective belief that an individual would not ‘fit in’ or was ‘not sufficiently suited’ for a job is at least as consistent with discriminatory intent as it is with nondiscriminatory intent: The employer just might have found the candidate ‘not sufficiently suited’ because of a protected trait such as age, race, or engaging in a protected activity. … It is, at bottom, a non-reason.”); Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 253 (2d Cir. 2014) (same); Greene v. Safeway Stores, Inc., 98 F.3d 554, 561 (10th Cir. 1996) (holding that a reasonable jury could interpret the statement that the plaintiff “didn’t fit in with the new culture” as indicative of age bias); cf. EEOC v. Aerotek, Inc., 815 F.3d 328, 331 (7th Cir. 2016) (describing as “discriminatory” a customer request to a staffing company for younger temporary workers because it felt that “a person in their 40s or 50s would not be a cultural fit”).

In addition, the allegations in the FAC were enough to establish a prima facie case of age discrimination under the ADEA.  As explained above at pages 6 and 8-9, such allegations are not necessary to progress beyond the dismissal stage.  See Swierkiewicz, 534 U.S. at 515; McCleary-Evans, 780 F.3d at 584-85; Bing v. Brivo Sys., LLC, 959 F.3d 605, 616-17 (4th Cir. 2020).  Because a prima facie case is one way to establish a permissible inference of discrimination, however, courts have held that allegations making out a prima facie case are sufficient to defeat a motion to dismiss.  See Castleberry v. STI Group, 863 F.3d 259, 266 (3d Cir. 2017); Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1050 n.2 (9th Cir. 2012); Swanson v. Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir. 2010).  To make out a prima facie case of discriminatory discharge under the ADEA, a plaintiff must show “(1) [s]he is a member of the protected class; (2) [s]he was qualified for the job and met the employer’s legitimate expectations; (3) [s]he was discharged despite h[er] qualifications and performance; and (4) following h[er] discharge, [s]he was replaced by someone with comparable qualifications” who was “substantially younger.”  Causey v. Balog, 162 F.3d 795, 802 & n.3 (4th Cir. 1998).  Lattinville-Pace alleged each of these elements with the requisite specificity.

Numerous other cases involving ADEA claims, in this Court and other circuits, have found that allegations similar to those in Lattinville-Pace’s FAC were sufficient to survive dismissal.  In Ray v. Amelia County Sheriff’s Office, 302 F. App’x 209 (4th Cir. 2008), for example, the plaintiff alleged that “she is a member of a protected class (she is forty-five years old), she suffered an adverse employment action (her employment was terminated), and she was replaced by a substantially younger employee who is less qualified for the position than Ray.”  Id. at 211.  She also alleged “possible reasons for the termination” that may have related to her age, including a desire to have younger-looking people in the front office, a preference for someone less knowledgeable about official policies and procedures, and opposition to her use of accrued annual leave.  Id. at 211-12.  This Court held that the district court erred in dismissing the claim: “Taken together, these allegations provide the defendants with fair notice of the nature of her claim and the grounds upon which it rests, and state a claim to relief that is plausible, not merely speculative.”  Id. at 212.

Similarly, Sheppard v. David Evans & Associates, 694 F.3d 1045 (9th Cir. 2012), involved a complaint alleging that (1) the plaintiff was “over the age of forty”; (2) “her performance was satisfactory or better” and “[s]he received consistently good performance reviews”; (3) she “was involuntarily terminated from her position”; and (4) “[a]t the time of her termination there were five comparators,” and these “younger comparators kept their jobs.”  Id. at 1048 (quoting plaintiff’s complaint).  The Ninth Circuit held that the complaint was sufficient to survive a motion to dismiss and vacated the district court’s dismissal.  Id. at 1050 (“Although Sheppard’s complaint is brief, her allegations are sufficient to state a prima facie case of discrimination.”).  The Third Circuit, in Martinez v. UPMC Susquehanna, 986 F.3d 261 (3d Cir. 2021), likewise held that the plaintiff successfully “state[d] the heart of a prima facie case” of age discrimination under the ADEA when he alleged that “he is over forty, he is qualified for the job,” “he was fired and not rehired,” and “his replacements were not only ‘significantly younger,’ but also less qualified and experienced.”  Id. at 267.  At the dismissal stage, the court explained, the plaintiff was not required “to anticipate and preempt the [defendant’s] possible explanations.”  Id.

The Fifth Circuit also reversed dismissal of an ADEA claim when the plaintiff alleged “(1) he belong[ed] to a protected class; (2) he applied for and was qualified for a position that was seeking applicants; (3) he was rejected; and (4) following his rejection, another applicant not of the protected class was hired.”  Haskett v. T.S. Dudley Land Co., 648 F. App’x 492, 495-96 (5th Cir. 2016) (citation omitted).  The court held that the dismissal was erroneous because the complaint “gave [the employer] ‘fair notice’ of his age discrimination claim, and therefore met Rule 12(b)(6)’s factual sufficiency requirement.”  Id. (noting that the allegations were, if anything, “more factually detailed” than a “bare-bones” complaint the court had deemed sufficient in another ADEA case, which “alleg[ed] only that the complainant had worked for a company, that he filed an age discrimination charge against the company, and that the company constructively discharged him in response, causing him harm” (discussing Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 498-99 (5th Cir. 2015)); see also Wooten, 788 F.3d at 498-99 (holding that these allegations were “a far cry from the sort of ‘unadorned, the-defendant-unlawfully-harmed-me accusation’ decried in Iqbal” and therefore “sufficient to satisfy the low threshold of Rule 8”).

CONCLUSION

For the foregoing reasons, the judgment of the district court should be vacated and remanded for further proceedings, including appropriate discovery.

Respectfully submitted,

CHRISTOPHER LAGE

Deputy General Counsel

JENNIfer s. goldstein

Associate General Counsel

elizabeth e. theran

Assistant General Counsel

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2549

jeremy.horowitz@eeoc.gov

 

May 18, 2022


CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limit of Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B)(i) because it contains 5,059 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f).  This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word for Office 365 ProPlus in Times New Roman 14-point font, a proportionally spaced typeface.

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

 

 



[1] All references to the Joint Appendix are in the form “JA.[page number].”  All references to the district court record are in the form “R.[docket number] at [page number], PageID#[page number].”

[2] The EEOC takes no position on any other issue raised in this appeal.

[3] The complaint does not specify Lattinville-Pace’s birth date, but it states that she was sixty-seven when she was terminated in July 2020, JA.17, 21 (FAC ¶¶ 51, 68), and she was sixty-eight when the First Amended Complaint was filed on October 26, 2021, JA.6 (FAC ¶ 4).

[4] In its district court briefing on the motion to dismiss, Intelligent Waves also argued that Lattinville-Pace did not adequately allege that she was meeting the legitimate expectations of her employer at the time of her termination.  R.17 (Mem. in Supp. of Mot. to Dismiss) at 13-17, PageID#111-15; R.20 (Reply) at 7-11, PageID#214-18.  Given the plethora of assertions in the FAC regarding her performance and the “praise and commendations” she received “throughout her employment,” however, the record does not support this contention.  JA.10-15 (FAC ¶¶ 30-43).  The district court did not mention the argument in its opinion.

[5] Intelligent Waves repeatedly emphasized to the district court that Pirela was herself 40 and thus within the age range covered under the ADEA.  R.17 (Mem. in Supp. of Mot. to Dismiss) at 23-24, PageID#121-22 (“Plaintiff … admits that her alleged replacement was over 40.”)  As the Supreme Court has explained, however, “The fact that one person in the protected class has lost out to another person in the protected class is … irrelevant, so long as [s]he has lost out because of [her] age. … [T]he fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class.”  O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996).

[6] Notably, the district court did not rely on the existence of other potential explanations contained in the FAC to conclude that Lattinville-Pace had not alleged a sufficient cause of action under the ADEA.  JA.34.