No. 11-3054 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT __________________________________________ EUGENE RHODES, Petitioner-Appellant, v. R + L CARRIERS, INC., et al., Respondents-Appellees. ______________________________________________________ On Appeal from the United States District Court for the Southern District of Ohio Hon. Sandra S. Beckwith, Judge ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF RHODES AND IN FAVOR OF REVERSAL _______________________________________________________ P. DAVID LOPEZ GAIL S. COLEMAN General Counsel Attorney VINCENT J. BLACKWOOD EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, NE, Room 5SW24L Assistant General Counsel Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii Statement of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1. Dismissal of Original Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. Dismissal of Amended Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. Contrary to the district court's holding, Rhodes's factual allegations create a plausible inference that he was fired in retaliation for his vocal opposition to widespread discrimination and/or because his employer sought to reduce the age of its workforce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. The district court wrongly relied on its erroneous analysis of Bell Atlantic v. Twombly and Ashcroft v. Iqbal in denying Rhodes leave to amend his complaint to include newly exhausted federal claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) . . . . . . . . . . . . . . . . . . . . . passim Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) . . . . . . . . . . . . . . . passim Bucher v. Sibcy Cline, Inc., 137 Ohio App. 3d 230, 738 N.E.2d 435 (Ohio App. 1 Dist. 2000) . . . . . . . . . . . . . . . . . . . . . . . . 9 Carney v. Cleveland Hts.-Univ. Hts. City Sch. Dist., 143 Ohio App. 3d 415, 758 N.E.2d 234 (Ohio App. 8 Dist. 2011) . . . . . . . . . . . . 9-10 City of Cleveland v. Ameriquest Mort. Securities, Inc., 615 F.3d 496 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13 Dunn v. Bruzzese, 172 Ohio App. 3d 320, 874 N.E.2d 1221 (Ohio App. 7 Dist. 2007) . . . . . . . . . . . . . . . . . . . . . 10, 15 Erickson v. Pardus, 551 U.S. 89 (2007) . . . . . . . . . . . . . . . . . . . . . . 8-9, 13 Fabian v. Fulmer Helmets, Inc., 628 F.3d 278 (6th Cir. 2010) . . . . . . . . . . . . . .12 Foman v. Davis, 371 U.S. 178 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Hill v. Lappin, 630 F.3d 468 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 8 In re NM Holdings Co., LLC, 622 F.3d 613 (6th Cir. 2010) . . . . . . . . . . . . . . . 8 In re Travel Agent Commission Antitrust Litigation, 583 F.3d 896 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Lindsey v. Yates, 578 F.3d 407 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 9 Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357 (6th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011) . . . . . . . . . . . . 8 Skinner v. Switzer, 131 S. Ct. 1289 (2011) . . . . . . . . . . . . . . . . . . . . . . . 8 Spengler v. Worthington Cyclinders, 615 F.3d 481 (6th Cir. 2010) . . . . . . . . . . . . 9 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) . . . . . . . . . . . . . . . . . . . . 8 Rules and Regulations Fed. R. App. P. 29(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 8(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8, 17 Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing numerous federal statutes prohibiting age, sex, and other forms of employment discrimination. The district court rejected Rhodes's attempt to assert his rights under these federal laws by refusing to permit an amended complaint raising newly exhausted federal claims. The court based its ruling on its previous rejection of Rhodes's state law discrimination and retaliation claims. Both the state and federal claims, the court held, consisted solely of "naked assertions" that failed to satisfy the pleading standards announced by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and elaborated upon in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The EEOC has a strong interest in assuring that pleading requirements are not unduly heightened in a manner that would terminate federal discrimination claims before there has been any opportunity to conduct discovery. Accordingly, the EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUES 1. Did the district court err by concluding that Rhodes's detailed factual allegations were insufficient to render his employment discrimination claims plausible? 2. Did the district court wrongly deny Rhodes leave to amend his complaint to include newly exhausted federal claims because it misinterpreted the pleading requirements of Bell Atlantic v. Twombly and Ashcroft v. Iqbal? STATEMENT OF THE CASE This is an appeal from the district court's dismissal of the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A. Statement of Facts Eugene Rhodes alleges that in 2008, the defendants recruited him as Senior Director of Human Resources "to cure a toxic workplace environment replete with systemic discrimination and other illegal conduct." (R.1, Compl. ¶ 11; R. 17, Amended Compl. ¶ 8.) At the time of his hiring, he was an older worker with 34 years of experience in human and labor relations. (R.1, Compl. ¶ 11; R.17, Amended Compl. ¶ 8.) Shortly after he was hired, Rhodes witnessed the defendants' "utter and conscious disregard for, and intentional violations of, multiple state and federal laws and regulations relating to employment and employee benefits." (R.1, Compl. ¶ 12; R.17, Amended Compl. ¶ 10.) He specifically noted that the defendants "made employment decisions based upon the age, sex, and disabilities of candidates." (R.1, Compl. ¶ 12; R.17, Amended Compl. ¶ 10.) He saw, for example, that they refused to hire women to work on the loading docks, paid female sales employees lower base salaries than their male counterparts, gave raises to men but not to women, and set a maximum age limit for new drivers and some other employees. (R.17, Amended Compl. ¶¶ 11-12.) He alleges that a Vice President of Human Resources not only approved of these practices but personally participated in rejecting applicants based on their age. (Id. ¶ 12.) Consistent with this allegation, Rhodes alleges that representatives of defendants, including an Executive Vice President, specifically said in meetings that the average age of the workforce needed to be lowered to 32 years. (Id. ¶ 13.) He adds that an owner and Executive Vice President said in meetings that defendants needed to stop hiring individuals who were overweight or who might claim benefits under company plans. (Id. ¶¶ 14-15.) Finally, Rhodes alleges that the defendants failed to enforce their own policies against sexual harassment and refused to post various notices related to workplace rights. (R.1, Compl. ¶ 12; R.17, Amended Compl. ¶¶ 19-20.) Upon discovering these violations, Rhodes says, he told the Vice Presidents of Human Resources, the Executive Vice Presidents, and the owners that they needed to abandon these practices and comply with the law. (R.17, Amended Compl. ¶ 21.) Together with corporate counsel, he alleges, they responded that "they did not intend to come into compliance with the law 'because R+L had never had to write a big enough check to justify compliance with the rules.'" (R.1, Compl. ¶ 14; R.17, Amended Compl. ¶ 21.) In the summer of 2009, Rhodes put his opposition to defendants' conduct into writing. He addressed his letters to, among others, the Vice Presidents of Human Resources and corporate counsel. (R.1, Compl. ¶ 14; R.17, Amended Compl. ¶ 21.) Defendants fired Rhodes in early October 2009. (R.1, Compl. ¶ 15; R.17, Amended Compl. ¶ 22.) His immediate supervisor told him on his last day that his performance had been "great." (R.1, Compl.¶ 15; R.17, Amended Compl. ¶ 22.) Rhodes sued R+L Carriers, Inc., R+L Carriers Shared Services LLC, Strategic Management, LLC, and three supervisors for compensatory and punitive damages. He alleged that they had illegally retaliated against him under the Family and Medical Leave Act of 1993, wrongfully discharged him in violation of public policy, illegally retaliated against him pursuant to chapter 4112 of the Ohio Revised Code, and illegally discriminated against him based on age, also pursuant to chapter 4112 of the Ohio Revised Code. He did not include federal claims in his original complaint because they had not yet been administratively exhausted. (R.10, Memo at 1.) Defendants moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim on which relief could be granted. (R.9, Motion.) Rhodes voluntarily dismissed his claims against the three individuals and did not oppose dismissal of his claim of wrongful discharge in violation of public policy. (R.10, Memo at 1.) He urged the district court, however, not to dismiss his remaining claims. (Id.) Simultaneously, he sought leave to amend his complaint to include additional factual details. (R.11, Motion.) B. District Court Decisions 1. Dismissal of Original Complaint The district court dismissed Rhodes's original complaint.<1> With respect to the claims under Ohio law, the court held that the complaint did not allege sufficient facts to support plausible claims of age discrimination or retaliation. (R.16, Order at 3.) The court criticized Rhodes for referring to "defendants" without differentiating among them and for mentioning "employment decisions" without providing details. (Id.) The court also said that Rhodes provided insufficient details about putting his opposition into writing, observing, "he pleads no facts about when he did so, what his 'opposition' consisted of, or to whom his opposition was voiced." (Id. at 3-4.) The district court concluded that Rhodes's complaint "fails to provide the defendants with adequate notice of the claims against each of them, or to even clearly allege who plaintiff's employer actually was." (Id. at 4.) The court permitted Rhodes to file an amended complaint. (Id. at 7.) 2. Dismissal of Amended Complaint The district court concluded that "[Rhodes's] amended complaint again fails to allege the crucial minimum facts that this court found lacking in his original complaint." (R.32, Order at 5.) Specifically, the court criticized Rhodes for referring to the defendants collectively; failing to identify his actual employer; mentioning meetings without providing names, dates, or context; and failing to describe how and when he opposed any unlawful practices. (Id. at 5-7.) The court also criticized him for being too vague about "employment decisions" based on age, sex, or disability, saying that he should have included facts about particular unlawful hiring decisions, noted how he learned about the decisions, and disclosed by whom the decisions may have been made. (Id. at 8.) The court observed that all of these facts should have been within Rhodes's own knowledge. (Id.) The district court refused to allow Rhodes to file a second amended complaint. (Id. at 15.) The proffered complaint would have added newly exhausted federal discrimination and retaliation claims. (Id. at 14.) However, the court said, it would not "cure the fatal deficiencies" of the first two complaints. (Id. at 15.) SUMMARY OF ARGUMENT The district court erred in dismissing this case for failure to state a claim. The detailed factual allegations in Rhodes's complaint are more than sufficient to raise a reasonable inference of unlawful behavior under both state and federal law. The additional details that the district court sought would add color and context to Rhodes's allegations, but the claims are plausible on their face. Especially in light of the Supreme Court's instruction that courts must accept all alleged facts as true and must make all reasonable inferences in favor of the plaintiff, the district court's dismissal is unwarranted. This Court should reverse and remand for the parties to engage in discovery. ARGUMENT A. Contrary to the district court's holding, Rhodes's factual allegations create a plausible inference that he was fired in retaliation for his vocal opposition to widespread discrimination and/or because his employer sought to reduce the age of its workforce. The district court dismissed this case based on an unrealistically demanding pleading standard. Contrary to the court's apparent understanding, "an employment discrimination complaint . . . must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Fed. R. Civ. P. 8(a)(2); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (unanimous); Twombly, 550 U.S. at 569-70 (citing Swierkiewicz with approval) . The plaintiff need not convince the court that he will ultimately prevail. Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011). What matters is only whether the claim to relief is "plausible on its face." Twombly, 550 U.S. at 570; see also Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011) (applying plausibility standard); Hill v. Lappin, 630 F.3d 468 (6th Cir. 2010) (same). The plausibility standard requires courts to assume that all the alleged facts are true, even when their truth is doubtful, and to make all reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 555-56; In re NM Holdings Co., LLC, 622 F.3d 613, 618 (6th Cir. 2010). The complaint "does not need detailed factual allegations." Twombly, 550 U.S. at 555; see also Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) ("specific facts are not necessary"). It needs only enough facts to suggest that discovery may reveal evidence of illegality, even if the likelihood of finding such evidence is remote. Twombly, 550 U.S. at 556. As the Supreme Court has explained, "the border lies between the factually neutral and the factually suggestive." Id. at 557 n.5. Drawing this line is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950. Substantively, Ohio follows federal case law in interpreting its state employment discrimination statutes. Bucher v. Sibcy Cline, Inc., 137 Ohio App. 3d 230, 239, 738 N.E.2d 435, 442 (Ohio App. 1 Dist. 2000). Thus, under both state and federal law, a plaintiff may prove retaliation by demonstrating that he engaged in protected activity, that defendants knew about his exercise of the protected activity, that defendants took an adverse employment action against him, and that there was a causal connection between the protected activity and the adverse action. Spengler v. Worthington Cyclinders, 615 F.3d 481, 491-92 (6th Cir. 2010) (discussing federal retaliation claim under the Age Discrimination in Employment Act); Lindsey v. Yates, 578 F.3d 407, 418 n.10 (6th Cir. 2010) (discussing federal retaliation claim under Title VII); Carney v. Cleveland Hts. - Univ. Hts. City Sch. Dist., 143 Ohio App. 3d 415, 428-29, 758 N.E.2d 234, 245 (Ohio App. 8 Dist. 2001) (discussing state retaliation claim under chapter 4112 of the Ohio Civil Rights Code). A plaintiff may prove age discrimination under federal and state law by showing that he was a member of the statutorily protected class, he was qualified for his job, and he was subjected to an adverse employment action "under circumstances that give rise to an inference of unlawful discrimination." Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 364-65 (6th Cir. 2007); see also Dunn v. Bruzzese, 172 Ohio App. 3d 320, 335, 874 N.E.2d 1221, 1231 (Ohio App. 7 Dist. 2007) (describing similar requirements under state law). Rhodes has alleged sufficient facts to satisfy these legal standards.<2> Accepting his factual allegations as true, see Twombly, 550 U.S. at 555-56, he complained to specifically identified members of upper management about employment discrimination in the workplace. (R.17, Amended Compl. ¶ 21.) This discrimination included a refusal to hire women on the loading docks, lower base salaries for female sales employees than for males, raises for men but not for women, and a maximum age limit for new drivers. (Id. ¶¶ 11-12.) Rather than responding to these complaints by investigating the truth of Rhodes's allegations, defendants (including their corporate counsel) told Rhodes that "they did not intend to come into compliance with the law 'because R+L had never had to write a big enough check to justify compliance with the rules.'" (R.1, Compl. ¶ 14; R.17, Amended Compl. ¶ 21.) Approximately two months after Rhodes put his complaints into writing, defendants fired him. (R.1, Compl. ¶¶ 14-15; R.17, Amended Compl. ¶¶ 21-22.) Although he had been hired as an older employee only one year earlier, his termination came after representatives of defendants, including an Executive Vice President, specifically stated in meetings that the average age of the workforce needed to be lowered to 32 years. (R.17, Amended Compl. ¶ 13.) Rhodes's termination was not based on his performance, which his immediate supervisor said was "great." (R.1, Compl. ¶ 15; R.17, Amended Compl. ¶ 22.) These factual allegations are sufficient to suggest that discovery may reveal evidence of retaliation and/or age discrimination. See Twombly, 550 U.S. at 556. It is reasonable to infer that defendants fired Rhodes because he persisted in complaining about employment discrimination (whether he was right or wrong in his complaints) and/or because they wanted to reduce the age of the workforce. The fact that alternate inferences may exist is irrelevant. As this Court has explained, "[i]n the absence of further development of the facts, we have no basis for crediting one set of reasonable inferences over the other. . . . So long as we can 'draw the reasonable inference that the defendant is liable for the misconduct alleged,' a plaintiff's claims must survive a motion to dismiss." Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 281 (6th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The district court wrongly believed that Rhodes had to provide specific factual details - dates, times, and places - in order to make his allegations credible. (R.16, Order at 3-4; R.32, Order at 5-7.) This Court has drawn reasonable inferences in favor of plaintiffs, however, based on much less. In Courie v. Alcoa Wheel & Forged Products, 577 F.3d 625 (6th Cir. 2009), for instance, the plaintiff learned that the defendant and his union had considered settling his original dispute. He alleged that they had illegally reached an agreement, and attached to his complaint a copy of an unsigned settlement proposal. The Court observed that it was not obligated to assume the truth of a legal conclusion presented as a factual allegation, and it noted that "the [plaintiffs'] legal arguments rest wholly upon the existence of a 'settlement agreement' that possibly does not exist." Id. at 630. For purposes of a motion to dismiss, however, the Court relied on the unsigned proposal to infer that the parties had eventually signed an agreement. Id. "[W]e cannot dismiss for factual implausibility," the Court said, "even if it [would] strike[] a savvy judge that . . . recovery is very remote and unlikely." Id. (quoting Twombly, 550 U.S. at 556). The details that the district court found lacking in Rhodes's complaint (i.e., names, dates, and context for meetings; how and when Rhodes opposed any unlawful practices) are superfluous in light of Courie. There, this Court was willing to infer the existence of a signed agreement to which the plaintiff was not a party based only on an unsigned proposal. The Court assumed the truth of the plaintiff's allegation even though the plaintiff had no personal knowledge of whether he was right. Here, in contrast, Rhodes relies solely on facts whose existence are already within his knowledge. The details that the district court seeks would not render the complaint more plausible; they would simply render it more detailed. See Twombly, 550 U.S. at 555 (complaint "does not need detailed factual allegations"); Erickson, 127 S. Ct. at 2200 (same). The only facts not within Rhodes's personal knowledge relate to the structure of R+L and its interrelationship with the other named defendants. This is not the type of information that a plaintiff would normally have before discovery. Rhodes named R+L Carriers, Inc. and R+L Carriers LLC because they were both housed in the building where he worked and both had issued him official documents; thus, he did not know which one might ultimately be liable for his discharge. (R.24, Memo at 6.) He named Strategic Management, LLC because it provides employment and/or payroll services to R+L and might be liable as a joint employer. (R.1, Compl. ¶ 4; R.17, Amended Compl. ¶ 4.) It was clear from the complaint that Rhodes was challenging one particular action - his termination - and was naming multiple entities because he did not know who was legally responsible. He was not alleging that each entity independently participated in his wrongful discharge. This case differs from In re Travel Agent Commission Antitrust Litigation, 583 F.3d 896 (6th Cir. 2009), where this Court dismissed a complaint against multiple defendants in part because the plaintiffs had not specified how each defendant was involved in an alleged conspiracy. "If these 'defendant[s] [sought] to respond to plaintiffs' [ ] allegations,'" the Court said, "'. . . [they] would have little idea where to begin.'" Id. at 905 (quoting Twombly, 550 U.S. at 564 n.10). Here, in contrast to the In re Travel Agent defendants, the defendants know exactly where to start. Their legal structure does or does not render each of them potentially liable for Rhodes's termination. Each defendant begins by explaining why it is or is not responsible if a court ultimately finds a violation of law. B. The district court wrongly relied on its erroneous analysis of Bell Atlantic v. Twombly and Ashcroft v. Iqbal in denying Rhodes leave to amend his complaint to include newly exhausted federal claims. As the district court recognized, "leave to amend should be freely granted when 'justice so requires.'" (R.32, Order at 14 (quoting Fed. R. Civ. P. 15(a)).) Observing that "the purpose of pleading is to facilitate a proper decision on the merits," the Supreme Court has emphasized that "this mandate [of freely granting leave to amend] is to be heeded." Foman v. Davis, 371 U.S. 178, 182 (1962). The district court denied Rhodes leave to file a second amended complaint raising newly exhausted federal claims because it wrongly believed that the federal claims were implausible. "All of the conclusions discussed above concerning Plaintiff's failure to plead plausible claims for relief," the court said, "fully apply to his proposed second amended complaint, which in the Court's view merely presents a series of '. . . naked assertions devoid of further factual enhancement.'" (R.32, Order at 15 (quoting Iqbal, 129 S. Ct. at 1949).) For all of the reasons discussed above, the district court was wrong to dismiss Rhodes's state claims as factually implausible. By relying on the same flawed reasoning to reject the proposed federal claims, the district court erred again. Refusal to permit amendment without a valid justification "is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules." Foman, 371 U.S. at 182. Additionally, even if this Court reinstates Rhodes's state claims, he may be barred from litigating his age discrimination claim based on his having previously sought administrative remedies. See R.32, Order at 3 (observing that defendants challenge state law age discrimination claim on this basis); Dunn, 172 Ohio App. 3d at 331-35, 874 N.E.2d at 1229-32 (discussing Ohio election of remedies doctrine as applied to age discrimination claims). The possibility that Rhodes may be foreclosed from pressing his age discrimination claim under state law makes it even more important that he be allowed to proceed under federal law. CONCLUSION The district court's misinterpretation of Twombly and Iqbal confuses plausibility with likelihood of success on the merits. These Supreme Court cases have not changed the rule that a complaint requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rhodes's complaint more than adequately meets that standard. Rhodes alleged facts in his complaint sufficient to support an inference under both state and federal law that he was fired in retaliation for opposing widespread discrimination and/or because his employer sought to reduce the age of its workforce. This Court should now reverse the dismissal of his complaint, instruct the district court to accept his second amended complaint, and remand for further proceedings. Respectfully submitted, P. DAVID LOPEZ s/ Gail S. Coleman General Counsel _____________________________ GAIL S. COLEMAN VINCENT J. BLACKWOOD Attorney Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER 131 M Street, NE, Room 5SW24L Assistant General Counsel Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, I certify that this brief was prepared with Microsoft Office Word 2010 and Microsoft Office Word 2003, and that it uses the proportionally spaced Times New Roman font, size 14 point. I further certify that this brief contains 3,473 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Office Word 2003 word-count function. s/ Gail S. Coleman ____________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed the foregoing amicus brief electronically in PDF format with the Court via the ECF system on this 25th day of May, 2011. I further certify that I served the foregoing amicus brief electronically in PDF format through the ECF system this 25th day of May, 2011, to all counsel of record. s/ Gail S. Coleman ____________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov ********************************************************************************** <> <1> The EEOC takes no position on the district court's dismissal of the Family and Medical Leave Act ("FMLA") claim and therefore does not discuss the court's FMLA analysis. <2> This Court reviews a district court's dismissal for failure to state a claim de novo, construing the complaint in the light most favorable to the plaintiff. City of Cleveland v. Ameriquest Mort. Securities, Inc., 615 F.3d 496, 502 (6th Cir. 2010).