UNITED STATES COURT OF APPEALS

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES........................................................................... iii

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

STATEMENT OF ISSUES............................................................................. 2

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings ........................................ 3

2. Statement of Facts.................................................................................... 4

3. Defendants’ Arguments and District Court’s Decisions........................... 6

STANDARD OF REVIEW............................................................................ 9

ARGUMENT................................................................................................. 9

I. Contrary to the District Court’s Rulings, Heneage’s Complaint

Should Not Have Been Dismissed............................................................... 10

A. The complaint states plausible claims for gender discrimination and retaliation against NEI and DTE............................................................. 10

B. The district court misconstrued and misapplied the Twombly/Iqbal pleading standards by insisting that the allegations in the complaint track the elements of a McDonnell Douglas prima facie case...................................................... 16

C. The district court erred in failing to construe all factual allegations

in the light most favorable to the plaintiff............................................... 18

II. Contrary to NEI’s Argument, Protection under Title VII’s

Anti-Retaliation Provision is Not Limited to Situations Where An Employer Takes Adverse Action Against One of its Own Employees................................... 20

III. Contrary to DTE’s Argument, Heneage’s Allegation Regarding

“Similarly Situated” Males May Not Be Disregarded on the Ground

that It Is “Conclusory.”............................................................................... 23

CONCLUSION............................................................................................. 25

CERTIFICATE OF COMPLIANCE............................................................. 26

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page(s)

Ashcroft v. Iqbal,

556 U.S. 662 (2009)......................................................................... passim

Bell Atlantic v. Twombly,

550 U.S. 544 (2007)......................................................................... passim

Cafasso v. General Dynamics,

637 F.3d 1047 (9th Cir. 2011).................................................................. 9

Conley v. Gibson,

355 U.S 41 (1957).............................................................................. 10-11

Chuang v. University of California, Davis, Board of Trustees,

225 F.3d 1115, 1124 n.8 (9th Cir. 2000)................................................. 19

Davis v. HSBC Bank Nevada,

691 F.3d 1152 (9th Cir. 2012).................................................................. 9

Davis v. Team Electric Co.,

520 F.3d 1080 (9th Cir. 2008).................................................................. 8

Flowers v. Columbia College Chicago,

397 F.3d 532 (7th Cir. 2005)................................................................... 22

Harris v. Amgen,

717 F.3d 1042 (9th Cir. 2013)....................................................... 9, 19, 20

Harris v. County of Orange,

682 F.3d 1126 (9th Cir. 2012).................................................................. 9

Hashimoto v. Dalton,

118 F.3d 671 (9th Cir. 1997)............................................................. 15, 20

Leong v. Potter,

347 F.3d 1117 (9th Cir. 2003)................................................................. 24

London v. Coopers & Lybrand,

644 F.2d 811 (9th Cir. 1981),

overruled on other grounds, 693 F.3d 896 (9th Cir. 2012)...................... 15

McDonnell Douglas v. Green,

411 U.S. 792 (1973)......................................................................... passim

McMenemy v. City of Rochester,

241 F.3d 279 (2d Cir. 2001)......................................................... 14, 22-23

Moss v. U.S. Secret Service,

711 F.3d 941 (9th Cir. 2013)................................................................... 13

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997)........................................................................... 21-23

Sheppard v. David Evans & Assoc.,

694 F.3d 1045 (9th Cir. 2012).......................................... 11, 15, 18, 24-25

Skinner v. Switzer,

131 S. Ct. 1289 (2011)................................................................. 11-12, 19

Swierkiewicz v. Sorema,

534 U.S. 506 (2002)................................................................ 10-11, 15-19

Westendorf v. West Coast Contractors of Nevada,

712 F.3d 417 (9th Cir. 2013)............................................................. 12, 21

Statutes and Rules

Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. §§ 2000e et seq................................................................ passim

42 U.S.C. 2000e-2(a)............................................................................... 12

42 U.S.C. § 2000e-3(a)................................................................. 12, 21-22

Family and Medical Leave Act,

29 U.S.C. §§ 2601 et seq.......................................................................... 4

Federal Rule of Appellate Procedure 29(a).................................................... 2

Federal Rule of Civil Procedure 8(a)(2).................................................. passim

Rule 12 of the Federal Rules of Civil Procedure.................................... passim

Federal Rule of Civil Procedure 12(b)(6)................................................... 4

Federal Rule of Civil Procedure 12(c)....................................................... 4

Other Authority

EEOC: Compliance Manual,

Retaliation 8-II(C)(4) (Dec. 5, 2000)....................................... 14, 19, 22-23

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________________

No. 13-15345

_______________________

NAOMI HENEAGE,

Plaintiff-Appellant,

DTE ENERGY and NEVADA ENERGY INVESTMENTS, LLC,

Defendants-Appellees.

_______________________________________

On Appeal from the United States District Court

for the District of Nevada

_______________________________________

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is the agency charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and other federal employment discrimination laws. In this case, the district court dismissed a Title VII complaint under Rule 12 of the Federal Rules of Civil Procedure. The court reasoned that the complaint failed to state a plausible claim for gender discrimination or retaliation largely because, in the court’s view, the complaint did not allege all the elements of a prima facie case under the framework set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). For this and other reasons, the decision misconstrues and misapplies Supreme Court precedent on notice pleading and, if affirmed, could seriously inhibit plaintiffs’ ability to seek relief for alleged discrimination and retaliation in federal court. We therefore offer our views to this Court. See Fed. R. App. P. 29(a) (stating that federal agency may file an amicus-curiae brief without parties’ consent or leave of court).

STATEMENT OF ISSUES[1]

1. Did the district court misconstrue and misapply the pleading standards in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), in dismissing the plaintiff’s complaint for failure to state a plausible claim of gender discrimination and/or retaliation under Title VII?

2. Does Title VII’s anti-retaliation provision prohibit an employer from refusing to hire an applicant because she engaged in protected activity while working for a different employer?

3. Does an allegation that the plaintiff was denied reemployment while “males similarly situated were treated more favorably” by being offered reemployment satisfy the pleading requirements in Twombly and Iqbal?

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an appeal from orders dismissing a Title VII complaint for failure to state a claim under Rule 12(b)(6), and for judgment on the pleadings under Rule 12(c). Fed. R. Civ. P.12. In her First Amended Complaint (district court docket number (“R.”) 10 (App.III-134-37), plaintiff alleges that her former employer, a power plant, discriminated against her based on her gender and protected activity by influencing a prospective employer not to hire her after that company took over operations at the plant. She further alleges that the prospective employer refused to employ her, based on her gender and the company’s desire not to “inherit” an employee who engages in protected activity. See id. Defendants separately moved to dismiss the complaint. R.15 (Rule 12(b)(6)), App.III-123-33; R.32 (Rule 12(c)), App.III-83-91. Plaintiff opposed the motions. R.21, App.III-109-13; R.38, App.III-25-28.

The district court granted the prospective employer’s motion to dismiss in June 2012 (R.30, “NEI Order”) (App.I-10-14), and reaffirmed that ruling on reconsideration on January 28, 2013. R.41 (“Reconsideration Order”), App.I-7-9. The same day, January 28, 2013, the court granted the former employer’s motion for judgment on the pleadings. R.42 (“DTE Order”), App.I-1-6. With respect to both defendants, the court concluded that the complaint does not state a claim for relief because, among other reasons, the allegations do not address all of the elements of a prima facie case under the McDonnell Douglas framework.[2] It does not appear that any formal final judgment was entered. On February 22, 2013, plaintiff filed a notice of appeal. R.44, App.II-15.

2. Statement of Facts

DTE Energy (“DTE”) contracted with Newmont Energy Investments (“NEI”) to operate the power plant in Dunphy, Nevada, and employed the plaintiff, Naomi Heneage, as a shift supervisor at the plant. See, e.g., DTE Order at 1, App.I-1. One of “the three female[ employees]” on the “industrial side of the plant” (Complaint ¶7. App.III-135), Heneage had earned two Associates degrees in Applied Science (Mine Maintenance and Industrial Maintenance) and, by late 2009, had close to fifteen years of experience as an operations plant shift supervisor, including three at DTE. App.II-45. She alleges that she performed her job satisfactorily. Id. ¶3, App.III-134.

Heneage further alleges that in November 2009, she complained to Human Resources and others that one of her female subordinates was being severely sexually harassed. Despite her complaints, however, no effective remedial measures were taken to stop and correct the harassment. Complaint ¶6, App.III-135-36. By way of example, she alleges, she showed the plant manager the subordinate’s work coveralls, on which someone had scrawled the word “bitch” across the pocket. The manager’s only response was to remove the pocket and return the coveralls to Heneage. Id. According to Heneage, DTE management “resented” her involvement in the matter. Id. Shortly thereafter, Heneage refused management’s requests that she downgrade the performance evaluation of the harassment victim. This refusal caused further resentment. Id.

At some point in 2010, NEI terminated its contract with DTE. Reconsideration Order at 1, App.I-7. Accordingly, in June 2010, all of the DTE employees were terminated, and those who wished to continue working at the plant were required to reapply. Id. at 2, App.I-8. Although Heneage did reapply, she was not selected for reemployment. Id. She alleges that an “NEI representative with purported knowledge of the decisionmaking process” gave her conflicting, “shifting explanations” for how and by whom this decision was made. Complaint ¶5, App.III-135. She also alleges that she and the other two females “on the industrial side of the plant” had engaged in protected activity, and none were reemployed. Complaint ¶¶7, 10, App.III-136. Further, Heneage alleges, “males similarly situated were treated more favorably by being selected for the transition” (id. ¶7), although one male whistleblower was likewise not reemployed. Id. ¶8, App.III-136.

Heneage also contends that the DTE manager “influenced” the NEI manager in the selection process, and that NEI and DTE “colluded” and agreed to discriminate against former DTE employees based on gender and protected activity. As support, she alleges that the “decisionmaker for DTE” had an office next door to the “decisionmaker for NEI.” She also alleges that the NEI manager knew about her protected activity and “desired, on behalf of NEI, not to inherit persons who engage in protected activities.” Complaint ¶11, App.III-136. Finally, in a supplemental pleading, she proffered evidence that the same person was the Plant Manager of both companies and was responsible for “initial and ongoing staffing of the facility.” R.29, Supplement to Opposition to NEI’s Motion to Dismiss, Exhibit 1 (“Supp.”), App.III-93.

3. Defendants’ Arguments and District Court’s Decisions

(a) In moving to dismiss the complaint under Rule 12(b)(6), NEI argued that Heneage was required — but failed — to plead facts that established each of the elements of a prima facie case under the McDonnell Douglas proof scheme. Further, NEI argued, Title VII’s anti-retaliation provision does not prohibit employers like NEI from taking adverse action against individuals based on the fact that they engaged in protected activity at a former employer; only the employer’s own employees are protected. NEI added that the company would have no motive to retaliate against an individual who had engaged in protected activity with a different employer. NEI Motion at 6-10, App.III-127-32; R.22 (NEI Reply at 7), App.III-105-06.

The district court granted NEI’s motion. Initially, the court agreed that the plaintiff had failed to “plead” three of the “requirements” of a McDonnell Douglas prima facie case for gender discrimination – that is, that she applied and was rejected despite her qualifications and that NEI continued seeking similarly qualified applicants. NEI Order at 3-4, App.I-12-13. The court also dismissed Heneage’s retaliation claim. The court reasoned that the plaintiff’s claims related solely to DTE. She also failed to allege that NEI knew of her “refusal to retaliation [sic] against one of her subordinates [at] DTE” or that NEI “was carrying out DTE’s retaliatory designs by not retaining her as an employee.” Id. at 4-5, App.I-13-14.

Plaintiff moved for reconsideration, proffering evidence that she had indeed applied for reemployment. R.37, App.II-29. In a second order, the court acknowledged this evidence. The court concluded, however, that dismissal of the gender claim was still appropriate since plaintiff had not alleged that she was qualified or that male applicants with the “same qualifications and employment history” were “treated more favorably.” Further, the court noted, “it is undisputed that both similarly situated male and female applicants were not chosen for retention” by NEI. Reconsideration Order at 3, App.I-9. The court then reaffirmed the dismissal of the retaliation claim for the reasons stated in its previous order. Id.

(b) DTE moved for judgment on the pleadings under Rule 12(c). Like NEI, DTE framed its dispositive motion around Heneage’s alleged failure to plead a McDonnell Douglas prima facie case. DTE argued that, among other things, Heneage must “show” that “similarly situated individuals outside her protected class were treated more favorably.” R.32, DTE Motion at 5 (citing Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008)), App.III-87. But, according to the company, an allegation that “males similarly situated were treated more favorably by being selected for the transition” was “conclusory” and, thus, “not sufficient” to satisfy the Twombly pleading standard. See id. DTE also argued that, because all of the employees were terminated, the plaintiff could not “establish any adverse employment action by DTE.” Id.

The district court granted DTE’s motion, agreeing that plaintiff had not sufficiently pled a prima facie case of gender discrimination or retaliation under the McDonnell Douglas framework. Such claims, the court reasoned, require proof that “similarly situated individuals outside her protected class were treated more favorably.” DTE Order at 4 (citations omitted) (prima facie case for discrimination); see also id. at 5 (prima facie case for retaliation), App.I-4-5. However, the court continued, here, not only plaintiff but all DTE employees were terminated, so plaintiff did not suffer an adverse action that male DTE employees did not suffer. Accordingly, the court concluded, there was no adverse action causally related to either her gender or her protected activity. Id. at 4-5.

STANDARD OF REVIEW

This Court reviews de novo an order dismissing a complaint for failure to state a claim under Federal Rule 12(b)(6), Fed. R. Civ. P. See, e.g., Davis v. HSBC Bank Nevada, 691 F.3d 1152, 1159-60 (9th Cir. 2012). In its review, the Court “accept[s] all factual allegations in the complaint as true and constru[es] them in the light most favorable to the nonmoving party.” Harris v. Amgen, 717 F.3d 1042, 1051 (9th Cir. 2013) (adding that complaint must be viewed in its entirety, along with “other sources” ordinarily examined). The same standard applies to an order granting judgment on the pleadings under Federal Rule 12(c), Fed. R. Civ. P., since the two motions are “functionally equivalent.” Harris v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012) (citing Cafasso v. Gen. Dynamics, 637 F.3d 1047, 1053 (9th Cir. 2011)).

ARGUMENT

The question presented in this appeal is whether Heneage’s Title VII employment discrimination complaint satisfies the federal notice pleading standards. For various reasons, the district court held that it did not, and defendants proffered additional reasons why the complaint should be dismissed. When the pleading standards are properly understood and applied, however, it is clear that the allegations in the plaintiff’s complaint are sufficient to state plausible claims of gender discrimination and retaliation under Title VII against each defendant.

I. Contrary to the District Court’s Rulings, Heneage’s Complaint Should Not Have Been Dismissed.

A. The complaint states plausible claims for gender discrimination and retaliation against NEI and DTE.

Federal Rule of Civil Procedure 8(a)(2) requires that each claim in a pleading be supported by “a short and plain statement of the claim showing that the pleader is entitled to relief.” Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1048 (9th Cir. 2012) (quoting Fed. R. Civ. P. 8(a)(2)). Such a statement must “give the defendant ‘fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord, e.g., Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002).

Until recently, Rule 8(a)(2) had been interpreted to mean that a complaint should be dismissed for failure to state a claim only if “it appears beyond doubt that the plaintiff can prove no set for facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46. In 2007, however, the Supreme Court set aside that interpretation which, the Court concluded, had caused substantial confusion. See Twombly, 550 U.S. at 563 (deciding that no-set-of-facts standard “has earned its retirement”). Instead, the Court held, to withstand a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570; see also Iqbal, 556 U.S. at 678 (same, adding that alleged facts must be “accepted as true”).

In Twombly and later cases, the Court fleshed out this “plausibility” standard. Importantly, it does “not require heightened fact pleading of specifics.” Twombly, 550 U.S. at 569-70 & n.14 (discussing Swierkiewicz, 534 U.S. at 508, 514-15). The complaint need not contain “detailed factual allegations” (Twombly, 550 U.S. at 555), nor “pin plaintiff’s claim for relief to a precise legal theory.” Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011). In fact, “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Twombly, 550 U.S. at 563.

Furthermore, and significantly, “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 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The “issue is not whether [the plaintiff] will ultimately prevail . . . but whether his complaint [is] sufficient to cross the federal court’s threshold.” Skinner, 131 S. Ct. at 1296 (citing, e.g., Swierkiewicz, 534 U.S. at 514).

On the other hand, the plausibility standard requires “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. While the standard is “not akin to a ‘probability requirement,’” it “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678-79 (quoting Twombly, 555 U.S. at 570). In short, a “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

Applying those standards in this case, it is clear that Heneage’s complaint — though perhaps “not a model of the careful drafter’s art” (Skinner, 131 S. Ct. at 1296) — states plausible claims for relief against each defendant. The “misconduct” she is challenging involves gender discrimination and retaliation in violation of Title VII. Section 703(a)(1) prohibits employers from failing to hire or otherwise discriminating against an individual with respect to the “terms, conditions, or privileges of [her] employment” because of that individual’s sex. See 42 § U.S.C. 2000e-2(a). Section 704(a) prohibits employers from discriminating against an employee or applicant because the individual “has opposed any practice” that “either violates Title VII or that the [individual] reasonably believes violates the law.” See Westendorf v. W. Coast Contractors of Nev., 712 F.3d 417, 422 (9th Cir. 2013); see also 42 U.S.C. § 2000e-3(a). Thus, the factual content in Heneage’s complaint must be sufficient to raise a reasonable inference that either or both defendants in fact discriminated against her based on her gender and/or protected activity. It does that.

Heneage alleges that NEI refused to hire her because of her gender and/or her protected activity. To support her gender claim, she alleges that she applied for reemployment; her performance had been satisfactory; the company did not hire either her or the other two female employees on the “industrial side of the plant”; “similarly situated” male employees were selected for reemployment; and she was given “shifting explanations” for how and by whom this decision was made. Taken as true, these allegations state a plausible claim for gender discrimination under Title VII. Cf. Moss v. U.S. Secret Serv., 711 F.3d 941, 960-62 (9th Cir. 2013) (noting that facts raising inference that proffered reason was pretextual support claim of impermissible motive for Twombly/Iqbal purposes).

In addition or in the alternative, Heneage alleges that NEI did not hire her because it did not want to “inherit” persons who engaged in protected activity. To support that claim, she alleges that she applied for reemployment; her previous performance had been satisfactory; and she had opposed conduct that she reasonably believed would violate Title VII: complaining about the sexual harassment her subordinate was experiencing and refusing to downgrade that subordinate following her complaints. Heneage also alleges that NEI knew of her protected activity; the company did not hire the other women who similarly had complained about discrimination; and it also failed to select a male whistleblower who had complained of alleged ethical violations at DTE. And, she contends, she was given inconsistent reasons for NEI’s refusal to reemploy her. Moreover, she alleges, the offices of the managers of DTE and NEI were next to each other; and the DTE manager “influenced” the NEI manager in the selection process as NEI assumed control over the plant. Taken as true, these factual allegations state a plausible claim for retaliation under Title VII. See EEOC: Compl. Man., Retaliation 8-II(C)(4) (Dec. 5, 2000) (indicating that Title VII prohibits an employer from refusing to hire an applicant based on the fact that the applicant had engaged in protected activity at a former employer); cf. McMenemy v. City of Rochester, 241 F.3d 279, 283-85 (2d Cir. 2001) (same, citing and applying EEOC Guidance and noting that it comports with statutory language and purpose).

To support her claims against DTE, Heneage suggests, in addition to the above facts, that DTE tolerated sexual harassment on the industrial side of the plant. She also contends that the company “resented” her for complaining about the harassment of a subordinate and for refusing to downgrade that subordinate’s performance evaluation. Further, as noted above, she alleges that the DTE manager “influenced” the NEI manager during the transition process, conduct facilitated by the proximity of their two offices.

This states a plausible claim for gender discrimination and retaliation against DTE. Clearly, giving an employee a poor recommendation — or otherwise urging that she not be reemployed — based on gender would be actionable. See Hashimoto v. Dalton, 118 F.3d 671, 674 (9th Cir. 1997) (citing London v. Coopers & Lybrand, 644 F.2d 811, 817 (9th Cir. 1981)). Likewise, giving her a poor recommendation in retaliation for protected activity would be actionable, and this would be true even if evidence eventually showed that NEI did not intend to reemploy her anyway. See id. at 674-77.

Significantly, the “factual content” in Heneage’s complaint, read fairly, provides as much “notice” of her claims as did the complaints found sufficient in Sheppard and Swierkiewicz. In Sheppard, this Court held that the plaintiff had stated a plausible claim for age discrimination where her two-and-one-half-page complaint alleged that she was over forty and had received consistently good performance reviews, but was involuntarily terminated while younger “comparators” in the same position kept their jobs. See 694 F.3d at 1048-50. Similarly, in Swierkiewicz, the Supreme Court upheld a complaint alleging age and national origin claims where the complaint “detailed the events leading to [the plaintiff’s] termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved in his termination.” Swierkiewicz, 534 U.S. at 514.

Likewise, here, Heneage’s complaint states facially plausible claims of discrimination under federal pleading standards. Accordingly, the complaint in this case should not have been dismissed.

B. The district court misconstrued and misapplied the Twombly/Iqbal pleading standards by insisting that the allegations in the complaint track the elements of a McDonnell Douglas prima facie case.

In ruling on the defendants’ motions to dismiss, the district court correctly recognized that a complaint must meet the pleading standards of Rule 8(a) as interpreted in Twombly and Iqbal. See, e.g., NEI Order at 2-3, App.I-11-12; DTE Order at 2-3, App.I-1-3. The court mistakenly assumed, however, that these standards require that the allegations for each claim in the complaint track the elements of a corresponding prima facie case under the McDonnell Douglas framework. And because, in the court’s view, Heneage’s complaint did not meet this requirement, the court dismissed it for failure to state a claim. NEI Order at 3-5, App.I-12-14; DTE Order at 3-5, App.I-3-5.

Even assuming the district court correctly concluded that the alleged facts, if proven, would not establish a McDonnell Douglas prima facie case, however, the court’s ruling cannot be reconciled with Swierkiewicz, 534 U.S. 506. The plaintiff in Swierkiewicz challenged a Second Circuit rule that, like the district court’s decision here, required employment discrimination complaints to allege facts constituting a McDonnell Douglas prima facie case — a kind of “heightened pleading standard.”

The Supreme Court categorically rejected this requirement. Writing for a unanimous Court, Justice Thomas stated that “an employment discrimination complaint need not include [specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas] and instead must contain only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” Swierkiewicz, 534 U.S. at 508; see also id. at 515 (holding that “an employment discrimination plaintiff need not plead a prima facie case of discrimination” under the McDonnell Douglas framework). The Court reasoned that the McDonnell Douglas proof scheme “is an evidentiary standard, not a pleading standard,” and does not even apply in every discrimination case. Id. at 510-11. Further, the Court noted, even where the framework does apply, the “precise requirements of a prima facie case can vary depending on the context.” Id. at 512. The Court concluded, “Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases.” Id.

While nowhere mentioned by the district court, the holding in Swierkiewicz — that an employment discrimination complaint need not plead a McDonnell Douglas prima facie case — remains good law after Twombly and Iqbal. Indeed, Twombly expressly cited Swierkiewicz with approval. Twombly, 550 U.S. at 570 (adding that there is no “heightened pleading standard” and it was error to require plaintiff to allege “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to relief”). Furthermore, this Court, citing Swierkiewicz, recently recognized that a “plaintiff in an ADEA case is not required to plead a prima facie case of discrimination in order to survive a motion to dismiss.” Sheppard, 694 F.3d at 1050 n.2 (original emphasis). The same should be true for a Title VII case. Swierkiewicz therefore is controlling. The district court committed reversible error in holding otherwise.

C. The district court erred in failing to construe all factual allegations

in the light most favorable to the plaintiff.

In addition to its overarching error in requiring Heneage to plead a McDonnell Douglas prima facie case, the district court’s rulings misapply notice pleading principles in other ways. The court found the allegations against NEI infirm because, in the court’s view, either they related only to conduct by DTE or plaintiff did not allege that NEI knew she had refused to downgrade her subordinate’s evaluation or “that NEI was carrying out DTE’s retaliatory design by not retaining her as an employee.” Reconsideration Order at 3, App.I-9. This reasoning is flawed as a matter of fact and law.

Read fairly, the complaint plainly was challenging NEI’s conduct as well as DTE’s. Heneage alleged broadly that NEI knew about her “protected activity”; she did not need to explicitly allege knowledge of the evaluation incident. See Twombly, 550 U.S. at 570 (no need for “heightened fact pleading of specifics”). She also alleged that NEI did not want to “inherit” an employee who had complained about discrimination. As discussed above, if she proved that NEI refused to hire her because of her protected activity, that would violate Title VII. See, e.g., Retaliation Guidance at 8-II(C)(4). Furthermore, there is no requirement that she allege that “NEI was carrying out DTE’s retaliatory design.” App.I-9. A plaintiff need not plead any specific legal theory in her complaint (Skinner, 131 S. Ct. at 1296), and NEI’s liability need not be based on such a theory.[3]

The district court also erred in dismissing the gender and retaliation claims against DTE on the ground that Heneage “did not suffer any adverse employment action by DTE that other male employees at DTE did not suffer as all DTE employees were terminated.” DTE Order at 4, 5. Rather, viewed in the light most favorable to the plaintiff (Amgen, 717 F.3d at 1051), the facts alleged in the complaint suggest that Heneage was not simply complaining that she was terminated by DTE. Rather, they suggest that she was complaining that DTE managers alerted NEI managers to her protected activity and persuaded (“influenced”) them not to reemploy her because of her gender and/or her protected activity. As noted above, this Court has recognized that such conduct is actionable, whether based on gender discrimination or protected activity. See Hashimoto, 118 F.3d at 674-77. The fact that DTE terminated all of Heneage’s colleagues is not dispositive as to that claim.

Finally, the procedural posture is significant. Although the court’s orders often read as if the court is adjudicating a summary judgment motion, the case was in fact dismissed under Rule 12, before any discovery had taken place. The question at this preliminary stage is not whether plaintiff proffered sufficient evidence to support the allegations in the complaint, as might be true on summary judgment. Rather, it is whether, assuming the facts alleged in the complaint are true, the plaintiff states plausible claims for relief. Here, she does. And even if the district court doubts that the plaintiff will be able to prove her claims, that would not justify dismissing the complaint at this very early stage in the proceedings. See, e.g., Twombly, 550 U.S. at 556. The orders of the district court should therefore be reversed.

II. Contrary To NEI’s Argument, Protection Under Title VII’s Anti-Retaliation Provision Is Not Limited To Situations Where An Employer Takes Adverse Action Against One Of Its Own Employees.

In its pleadings below, NEI argued that Heneage could not state a claim for retaliation against the company because, according to NEI, Title VII’s anti-retaliation provision applies only where an employer takes adverse action against one of its own employees for protected activity she engaged in while an employee of that employer. In contrast, NEI pointed out, Heneage engaged in protected activity while she was still employed by DTE. Thus, the argument goes, Title VII provides no cause of action for any adverse action NEI took in response to that protected activity. See, .e.g., NEI Reply at 7, App.III-105-06. The district court did not address this argument.

However, NEI’s crabbed interpretation is not supported by a reasonable reading of the plain language of the statute or by its remedial purpose. As noted above, section 704(a) of Title VII makes it “unlawful for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter . . . .” 42 U.S.C. § 2000e-3(a) (emphasis added); see also Westendorf, 712 F.3d at 422 (protects an individual who opposes conduct she “reasonably believes violates that law”). Thus, the provision expressly applies to “applicants” who, by definition, are not “employees” — or even necessarily “future employees” — of the employer. See Robinson v. Shell Oil Co., 519 U.S. 337, 344-45 (1997) (also construing the word “employees” to apply to both former and current employees” to further the remedial purposes of the provision). By its plain terms, therefore, section 704(a) applies to Heneage who was, after all, an “applicant” for a position with NEI.

Moreover, nothing in the language of the provision limits the protected activity to conduct taken “against [the individual’s] employer.” See Flowers v. Columbia Coll. Chi., 397 F.3d 532, 533 (7th Cir. 2005). Rather, as the Seventh Circuit held, the provision should be read to apply to protected activity involving “any employer.” Id. at 533-34 (original emphasis); see also Retaliation Guidance at 8-II(C)(4) (stating that an “individual is protected against retaliation for participation in employment discrimination proceedings even if those proceedings involved a different entity”).

That is also the interpretation adopted in McMenemy, 241 F.3d at 283-85. There, the Second Circuit reversed a summary judgment for the defendant where the plaintiff firefighter alleged that the City denied him promotions because of his involvement in an investigation of a union secretary’s claims that the union president — a confidante of the fire chief — had sexually harassed and assaulted her. Rejecting an argument like NEI’s, the Court of Appeals held that “Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice.” Id. at 284-85 (adding that allowing such a claim is “especially appropriate” where the two employers have a relationship with each other). The Court reasoned that this interpretation was both consistent with the statutory language and would further the “primary purpose of the retaliation clause: ‘[m]aintaining unfettered access to [Title VII’s] remedial mechanism.’” Id. at 283-84 (quoting Robinson, 519 U.S. at 346 (alterations in Robinson)).

Accordingly, here, if it reaches the issue, this Court should embrace the interpretation of Title VII adopted by the Second and Seventh Circuits (as well as the Commission). That is, the Court should hold that section 704(a) provides a cause of action in situations such as this one where the employer allegedly has refused to hire an applicant in order to avoid “inheriting” someone who engaged in protected activity at her previous employer. A contrary rule would allow employers like NEI to retaliate with impunity against applicants such as Heneage who have previously attempted to assert their rights under federal law.

III. Contrary To DTE’s Argument, Heneage’s Allegation Regarding “Similarly Situated” Males May Not Be Disregarded On The Ground That It Is “Conclusory.”

In its motion for judgment on the pleadings, DTE argued that plaintiff’s allegation that “‘[m]ales similarly situated were treated more favorably by being selected for the transition’ from DTE to [NEI]” was “conclusory” and, thus, “not sufficient” to satisfy the Twombly/Iqbal pleading standard. DTE Motion at 5, App.III-87. The district court did not address this argument.

The argument lacks merit. In Sheppard, 694 F.3d at 1048, 1050, this Court concluded that a complaint stated a plausible claim for age discrimination where, among other things, it alleged that plaintiff “received consistently good performance reviews;” her “five younger comparators kept their jobs;” but plaintiff herself was terminated. The Court reasoned that the allegations plausibly suggest that the company continued to need employees with the plaintiff’s skills and that “employees outside [the plaintiff’s] protected class ‘were treated more favorably’” than she was. Id. at 1050.

The same is true for the challenged allegation in Heneage’s complaint. In this context, “comparators” are typically referred to alternatively as “similarly situated” persons outside the plaintiff’s protected class. See, e.g., Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003) (stating that plaintiff’s “proposed comparators were not similarly situated . . .”). In essence, Heneage is alleging that “male comparators” were reemployed but she was not. Thus, by analogy to Sheppard, her allegation that “similarly situated” male employees were treated more favorably than she was in that, unlike her, they were reemployed — coupled with the contention that her performance was satisfactory — suggests that DTE needed employees with Heneage’s skills and that employees outside her protected class were treated better than she was. Accordingly, like the allegation approved in Sheppard, this allegation in Heneage’s complaint was “sufficient” to satisfy the Twombly/Iqbal standard.

CONCLUSION

For the foregoing reasons, the judgment for defendants should be reversed and the case should be remanded to the district court for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

DANIEL T. VAIL

Acting Assistant General Counsel

/s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4721

fax: (202) 663-7090

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5534 words, from the Statement of Interest through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2007 with Times New Roman 14-point font.

/s/ Barbara L. Sloan

Barbara L. Sloan

Attorney for Equal Employment

Opportunity Commission

Dated: Sept. 23, 2013

[1] The Commission takes no position on any other issue in this case.

[2] The district court also dismissed plaintiff’s retaliation claim against DTE under the Family and Medical Leave Act. DTE Order at 5., App.I-5 This brief does not address that ruling.

[3] The court further stated, without elaboration, that it is “undisputed” that “similarly situated male and female applicants were not chosen for retention employment.” App.I-9. The court’s point is unclear. If, by “similarly situated male and female employees,” the court is referring to the other female employees “on the industrial side of the plant” who engaged in protected activity (as well as one male whistleblower), that fact would accord with plaintiff’s claims. If, instead, the court is suggesting that some other “similarly situated” employees within an applicable protected class were not hired, that fact, even if true, would not necessarily defeat the plaintiff’s claim even at the summary judgment stage. See Chuang v. Univ. of Cal. Davis Bd. of Trustees, 225 F.3d 1115, 1124 n.8 (9th Cir. 2000) (“Under McDonnell Douglas, a plaintiff must show that an employer treated similarly situated individuals outside the plaintiff’s protect[ed] class more favorably, not that the employer treated all other members within the class less favorably.”) (original emphasis).