_________________________________________________________ No. 11-35164 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________________________________________ KATHRYN SHEPPARD, Plaintiff-Appellant, v. DAVID EVANS AND ASSOC., Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Oregon (No. 3:10-cv-00276-BR) Hon. Anna J. Brown, Presiding _________________________________________________________ BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND IN FAVOR OF REVERSAL _________________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street NE, Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTERES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. The District Court's Decision Conflicts Directly with the Supreme Court's Decision in Swierkiewicz, which Remains Good Law. . . . . . . . . . . . 6 II. Sheppard's Amended Complaint Stated a Plausible Claim under Twombly and Iqbal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . C-2 TABLE OF AUTHORITIES Cases al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . 16-17 Alvarez v. Hill, 518 F.3d 1152 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . 17 Anderson v. Bessamer City, 470 U.S. 564 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . 18 Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . 17 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). . . . . . . . . . . . . . . . . . . . . . . . passim Aztec Energy Partners, Inc. v. Sensor Switch, Inc., 531 F. Supp. 2d 226 (D. Conn. 2007). . . . . . . . . . . . . . . . . . 20 Bacon v. Ga. Ports Auth., No. CV410-281, 2010 WL 5538515 (S.D. Ga. Dec. 17, 2010). . . . . . . . . 20 Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210 (S.D.N.Y. 2010). . . . . . . . . . . . . . . . . . . . 23 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . passim Cleveland v. Sec. of Treasury, 407 F.App'x 386, 2011 WL 13608 (11th Cir. 2011). . . . . . . . . . . . 19 Coleman v. Md. Courts of Appeals, 626 F.3d 187 (4th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . .22 TABLE OF AUTHORITIES Cases Conley v. Gibson, 355 U.S. 41 (1957). . . . . . . . . . . . . . . . . . . . . 10, 11, 20, 21 Davis v. Kroger Co., No. 1:09-cv-789, 2010 WL 5882114 (S.D. Ohio Sept. 15, 2010). . . . . . 21 Davis v. Metro. Gov't of Nasvhille, No. 3-10-0721, 2011 WL 902138 (M.D. Tenn. Mar. 15, 2011). . . . . . . . . 20 Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . .3 Erickson v. Pardus, 551 U.S. 89 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . .16, 25 Fisher v. Md. Dep't of Public Safety & Corr. Servs., No. JFM 10-CV-0206, 2010 WL 2732334 (D. Md. July 8, 2010). . . . . . 22-23 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). . . . . . . . . . . . . . . . . . . . .19-20, 22 Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . .20 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Harley v. Paulson, No. 07-3559 (JBS), 2008 WL 5189931 (D.N.J. Dec. 9, 2008). . . . . . . . 21-22 Hishon v. King & Spaulding, 467 U.S. 69 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Hughes v. Colo. Dep't of Corr., 594 F. Supp. 2d 1226 (D. Colo. 2009). . . . . . . . . . . . . . . . . . 23 TABLE OF AUTHORITIES Cases In re Ins. Brokerage Antitrust Litig., 618 F.3d 300 (3d Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . 22 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . 17 Jones v. Air Line Pilots Ass'n, Int'l, ___ F.3d ___, 2011 WL 2417140 (D.C. Cir. 2011). . . . . . . . . . . . . . 18 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . 17 Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . 25 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . 17 Ojo v. Farmer's Group, Inc., 565 F.3d 1175 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . 17 Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1 (1st Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . 19 Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722 (6th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . .21 TABLE OF AUTHORITIES Cases Perry v. NYSARC, Inc., No. 10-5177-CV, 2011 WL 2117950 (2d Cir. 2011). . . . . . . . . . . . . . .18 Premier Pork L.L.C. v. Westin, Inc., No. 07-1661, 2008 WL 724352 (D.N.J. Mar. 17, 2008). . . . . . . . . . . . 20 Pullman-Standard v. Swint, 456 U.S. 273 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Sablan v. A.B. Won Pat Int'l Airport Auth., Guam, No. 10-00013, 2010 WL 5148202 (D. Guam Dec. 9, 2010). . . . . . . . . . . .20 Scheuer v. Rhodes, 416 U.S. 232 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . .17 Skinner v. Switzer, 131 S. Ct. 1289 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . .16 Starr v. Baca, 633 F.3d 1191 (9th Cir. 2011). . . . . . . . . . . . . . . . . . 6, 17, 18 Swan v. Bank of Am., 360 F.App'x 903, 2009 WL 5184129 (9th Cir. 2009). . . . . . . . . . . 3, 4, 9 Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010). . . . . . . . . . . . . . . . . . 19, 20, 26 Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . passim TABLE OF AUTHORITIES Cases Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 16 United States v. Nobel Learning Cmtys., Inc., 676 F. Supp. 2d 379 (E.D. Pa. 2009). . . . . . . . . . . . . . . . . . 20 United States v. O'Brien, 130 S. Ct. 2169 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . .16 Williams v. Boeing, 517 F.3d 1120 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . 17 Williams v. Woddford, No. 1:06-cv-01535-DLB (PC), 2009 WL 3823916 (E.D. Cal. Nov. 13, 2009). . . . . . . . . . . . . . . 20 Statutes Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. . . . . . . . . 1 Sherman Act, 15 U.S.C. § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Rules Fed. R. Civ. P. 8. . . . . . . . . . . . . . . . . . . . . 10, 12, 13, 15, 16, 22 Fed. R. Civ. P. 8(a). . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 18, 26 Fed. R. Civ. P. 8(a)(2). . . . . . . . . . . . . . . . . . . . . 6, 8, 10, 21 Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . 1, 6, 9, 10, 17, 23 Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 29(d). . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 TABLE OF AUTHORITIES Rules Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 Fed. R. App. P. 32(a)(7)(B)(i). . . . . . . . . . . . . . . . . . . . . . . . C-1 Fed. R. App. P. 32(a)(7)(B)(iii). . . . . . . . . . . . . . . . . . . . . . . .C-1 Miscellaneous 5A C. Wright & A. Miller, Federal Practice and Procedure (3d ed. 2004). . . . . 26 Joseph A. Seiner, After Iqbal, 45 Wake Forest L. Rev. 179 (2010). . . . . . . . . . . . . . . . . . . 24, 25 Charles A. Sullivan, Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011). . . . . . . . . . . . . . . . . . . . . 25 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency charged with interpreting and enforcing the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., as well as other federal employment discrimination statutes. In this case, the district court dismissed an amended complaint under Federal Rule of Civil Procedure 12(b)(6), ruling that it failed to state a plausible ADEA claim. The EEOC has a strong interest in assuring that pleading requirements are not applied improperly to preclude victims of employment discrimination from vindicating their statutory rights in federal court. Because the Commission believes that the district court here misconstrued Supreme Court precedent on notice-pleading, we are offering our views to the Court. See Fed. R. App. P. 29(a). STATEMENT OF THE ISSUES * Whether the district court's decision conflicts directly with the Supreme Court's decision in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002) * Whether the district court committed reversible error in ruling that the amended complaint failed to state a plausible ADEA claim under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) STATEMENT OF THE CASE On March 15, 2010, Plaintiff-Appellant Kathryn Sheppard filed a complaint in the U.S. District Court for the District of Oregon alleging (among other claims) that Defendant-Appellee David Evans & Associates (Evans) had violated the ADEA. R.1. Sheppard's complaint stated in relevant part that: (1) Sheppard "is an adult female citizen in the federally protected age group under the ADEA"; (2) Evans is an Oregon corporation that does business in Portland, Oregon; (3) Sheppard worked for Evans as an Executive Administrative Assistant from November 28, 2005, to February 2, 2009; (4) Sheppard was "involuntarily terminated from her position"; (5) "At all material times her performance was satisfactory or better"; (6) "At the time of her termination there were five comparators employed by Evans in Oregon of which Sheppard was the oldest"; and (7) "Age was a determining factor in the decision to terminate" her. R.1 at 1- 2, ¶¶ 1-7. Evans filed a motion to dismiss this complaint for failure to state a claim. R.4; R.5. Sheppard file a response. R.9; R.10. The district court granted Evans's motion. R.16. Citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554, 555-56 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), the district court explained that to survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim to relief that is "plausible on its face." R.16 at 2-3. The district court then quoted a portion of Swan v. Bank of America, 360 F.App'x 903, 2009 WL 5184129 (9th Cir. 2009), holding that to make out a prima facie case of age discrimination under the ADEA, a plaintiff must demonstrate that she (1) is at least forty years old; (2) performed her job satisfactorily; (3) was discharged; and (4) was either replaced by a substantially younger employee with equal or inferior qualifications or discharged under circumstances otherwise "'giving rise to an inference of age discrimination.'" R.16 at 4 (quoting Swan, 2009 WL 5184129, at **1) (in turn quoting Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008)). The district court found that here: Plaintiff does not allege she was at least forty years old at the time of her termination, that she was replaced by a substantially younger employee, or any other circumstances that might give rise to an inference of discrimination based on her age. In addition, Plaintiff makes only conclusory allegations in the Complaint such as "[a]t all material times [Plaintiff's] performance was satisfactory or better" and "[a]ge was a determining factor in the decision to terminate [Plaintiff]." R.16 at 4. Thus, the district court concluded, "Plaintiff has not alleged sufficient facts to state a claim for age discrimination in violation of the ADEA even under the minimal notice-pleading standard of Rule 8(a)." Id. at 4-5. However, the district court granted Sheppard leave to amend her complaint consistent with its opinion and order. See id. at 7. On September 20, 2010, Sheppard filed an amended complaint. R.17. Sheppard's amended complaint included all of the allegations in her first complaint and added at least three additional facts related to her ADEA claim - that "[s]he is over the age of forty[,]" that "[s]he received consistently good performance reviews[,]" and that her "younger comparators kept their jobs." R.17 at 1-2, ¶¶ 1, 5, 7. Evans filed a second motion to dismiss Sheppard's complaint for failing to state a claim. R.18; R.19. Sheppard again responded. R.20. The district court granted Evans's second motion. R.22. The court again cited Iqbal, Twombly, and Swan. Id. at 3-4. The court then reasoned that "[a]lthough Plaintiff alleges in her Amended Complaint that she is over the age of 40, Plaintiff still fails to allege she was replaced by a substantially younger employee or any other circumstances that might give rise to an inference of discrimination based on her age." Id. at 5. The court therefore concluded that Sheppard once again had not alleged sufficient facts to state a claim for age discrimination in violation of the ADEA. Id. It dismissed her complaint, this time with prejudice, and entered judgment in favor of Evans. Id. at 8; R.23. Sheppard then appealed. R.24. SUMMARY OF ARGUMENT The district court's ruling cannot be reconciled with the Supreme Court's decision in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), which remains good law. In Swierkiewicz, the Supreme Court ruled that a plaintiff does not need to plead a prima facie case of discrimination to survive a motion to dismiss. Here, the district court dismissed Sheppard's amended complaint precisely because Sheppard allegedly failed to plead facts creating a prima facie case under the ADEA. The district court's decision thus reflects plain legal error. Further, the facts in Sheppard's amended complaint are sufficient to state a plausible claim of age discrimination. Sheppard alleged that she was over forty (and thus in the protected age group under the ADEA), that her performance was at all times satisfactory or better, that Evans terminated her, and that Evans retained younger comparators. Given these facts and the context in this case - a discrete employment decision made in a typical workplace setting (of the sort where discrimination generally is still far too common) - Sheppard's ADEA claim is plausible on its face. In finding otherwise, the district court misapplied the standards articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The district court's decision must therefore be reversed. ARGUMENT I. The District Court's Decision Conflicts Directly with the Supreme Court's Decision in Swierkiewicz, which Remains Good Law. Under Federal Rule of Civil Procedure 8(a)(2), 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). The theory underlying Rule 8(a) is notice pleading - i.e., "a complaint is required only to give [sufficient] notice of the claim such that the opposing party may defend himself or herself effectively." Starr v. Baca, 633 F.3d 1191, 1201 (9th Cir. 2011). If a defendant believes a complaint does not satisfy this notice-pleading requirement, it may file a motion to dismiss the complaint for "failure to state a claim upon which relief can be granted[.]" See Fed. R. Civ. P. 12(b)(6). In Swierkiewicz, an ADEA case, the Supreme Court held unanimously that to survive such a motion to dismiss, an employment discrimination complaint does not need to contain specific facts establishing a prima facie case under the circumstantial-evidence framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Swierkiewicz, 534 U.S. at 508. The Supreme Court provided multiple rationales for this result. First, the Court explained, the prima facie case relates to the plaintiff's burden of presenting evidence raising an inference of discrimination. It is thus "an evidentiary standard, not a pleading requirement." Id. at 510. In addition, the Court reasoned, it would not be "appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case." Id. at 511. For instance, if the plaintiff has direct evidence of discrimination, the plaintiff could prevail without proving all the elements of a prima facie case. Id. According to the Court, it would be "incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered." Id. at 511-512. Moreover, the Court pointed out, "the precise requirements of a prima facie case can vary depending on the context and were 'never intended to be rigid, mechanized, or ritualistic.'" Id. at 512 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)); see also McDonnell Douglas, 411 U.S. at 802, n.13 (providing that the precise prima facie proof the Court required in McDonnell Douglas "is not necessarily applicable in every respect to differing factual situations"); Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (noting that the Court in McDonnell Douglas "did not purport to create an inflexible formulation" for a prima facie case). The Court reasoned that "[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." Swierkiewicz, 534 U.S. at 512. Thus, "[g]iven 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. Further, the Court found, imposing any sort of heightened pleading standard would conflict with the plain language of Rule 8(a)(2). Id. The stating-a-claim stage is not the place to dispose of cognizable but weak causes of action. Rather, Rule 8's "simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id. Indeed, Rule 8(a) "establishes a pleading standard without regard to whether a claim will succeed on the merits" and while it sometimes may "appear on the face of the pleadings that a recovery is very remote and unlikely . . . that is not the test." Id. at 515 (internal quotation marks omitted); see also Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one" and the issue before it is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims"). Finally, the Court rejected the argument that "allowing lawsuits based on conclusory allegations of discrimination to go forward will burden the courts and encourage disgruntled employees to bring unsubstantiated suits." Swierkiewicz, 534 U.S. at 514. The Court concluded that "[w]hatever the practical merits of this argument, the Federal Rules do not contain a heightened pleading standard for employment discrimination suits" and that any "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 County Narcotics Intelligence & Coordination Unit, 507 U.S 163, 168 (1993)). In this case, the district court dismissed Sheppard's amended complaint because it ostensibly did not meet the requirements to establish a prima facie case of age discrimination. This district court ruling simply cannot be squared with Swierkiewicz, which remains good law. The district court failed to acknowledge Swierkiewicz, much less apply it. (Evans did not cite Swierkiewicz in either of its two motions to dismiss, either.) The district court pointed instead to this Court's decision in Swan. But while this Court in Swan did articulate a permissible formulation of a prima facie case under the ADEA, it did so in ruling on a defendant's motion for summary judgment - not a motion to dismiss for failure to state a claim. See Swan, 2009 WL 5184129, at **1. This Court in Swan did not even remotely suggest that a plaintiff has to plead a prima facie case to survive a Rule 12(b)(6) motion. Nor, given Swierkiewicz, should or could it have. Thus, the district court's ruling reflects plain legal error. To be sure, after Swierkiewicz, the Supreme Court decided Twombly and Iqbal, which the district court also cited in dismissing Sheppard's amended complaint. But neither of these two opinions has overruled Swierkiewicz. On the contrary, these and other recent Supreme Court rulings bolster the view that the holding in Swierkiewicz is still good law. In Twombly, the Court addressed "the proper standard for pleading an antitrust conspiracy through allegations of parallel conduct" under Section 1 of the Sherman Act, 15 U.S.C. § 1. See Twombly, 550 U.S. at 553, 554-55. Quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), the Twombly Court explained that the purpose of Rule 8's "short and plain statement" requirement is to "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests . . . .'" Twombly, 550 U.S. at 555. The Court noted that a complaint "attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . ." Id. However, the Court explained, the plaintiff's obligation to provide the "grounds" of his or her "entitlement to relief" does "require[] more than mere labels and conclusions . . . ." Id. According to Twombly, "a formulaic recitation of the elements of a cause of action will not do" and "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." Id. Under Rule 8(a)(2), the "'plain statement'" must possess "enough heft to 'sho[w] that the pleader is entitled to relief.'" Id. at 557 (citing Fed. R. Civ. P. 8(a)(2)). The Twombly Court rejected the part of Conley stating that a complaint "'should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. at 561 (quoting Conley, 355 U.S. at 45-46). The Court in Twombly explained that under a literal reading of this "no set of facts" language, a "wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some 'set of [undisclosed] facts' to support recovery." Id. Such a pleading approach, the Court reasoned, would "dispense with any showing of a reasonably founded hope that a plaintiff would be able to make a case . . . ." Id. at 562 (internal quotation marks omitted). The Court concluded that Conley's "no set of facts" language "has been questioned, criticized, and explained away long enough" and thus "has earned its retirement." Id. at 562-63. Under the proper standard, the Twombly Court clarified, plaintiffs must plead "enough facts to state a claim to relief that is plausible on its face" - to "nudge[] their claims across the line from conceivable to plausible." Id. at 570. Whether a claim is "plausible" will depend in part on the nature of the claim itself and on the context in which it arose. See id. at 557 (explaining that allegations "must be placed in a context that raises a suggestion" of illegal conduct). This "plausibility" standard is not a "probability requirement," the Court explained. Id. at 556. Rather, "it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of the alleged illegal conduct. Id. "[N]aked assertion[s]" may "get[] the complaint close to stating a claim, but without some further factual enhancement it [will] stop[] short of the line between possibility and plausibility of 'entitlement to relief.'" Id. at 557. The Court in Twombly concluded by specifically rejecting the notion that this standard somehow "runs counter to" its holding in Swierkiewicz. Id. at 569. According to Twombly, Swierkiewicz "did not change the law of pleading, but simply re-emphasized . . . that the . . . use of a heightened pleading standard for [employment discrimination] cases was contrary to the Federal Rules' structure of liberal pleading requirements." Id. at 570. "Here, in contrast," the Twombly Court explained, "we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. Two years later, in Iqbal, the Supreme Court again interpreted Rule 8's pleading requirement, this time in a case involving a claim of unconstitutional discrimination brought by a Muslim citizen of Pakistan against former Attorney General John Ashcroft and F.B.I. Director Robert Mueller. See 129 S. Ct. at 1942, 1943-44. The plaintiff alleged that after September 11, 2001, Ashcroft and Mueller "designated [plaintiff, along with others,] a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments" to the U.S. Constitution. Id. at 1944. The complaint further alleged that Ashcroft and Mueller had "willfully and maliciously agreed to subject [him] to harsh conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Id. (internal quotation marks omitted). The Court construed the plaintiff's claim as alleging "invidious discrimination in contravention of the [Constitution]," requiring him to "plead and prove that the defendant[s] acted with discriminatory purpose." Id. at 1948. Applying Twombly - which the Iqbal Court found applies to all civil actions, including "antitrust and discrimination suits alike," id. at 1953 - the Court dismissed Iqbal's complaint for failure to state a claim. Id. at 1952. The Court noted that to survive a motion to dismiss after Twombly, a complaint must contain sufficient factual matter, accepted as true, to "'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 570). According to Iqbal, "[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. The Court reasoned that Rule 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. The Court explained that Rule 8 does not require "detailed factual allegations," but does "demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The Iqbal Court underscored that determining whether a complaint states a plausible claim for relief will "be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Given the specific context at issue in Iqbal, the Court concluded that the plaintiff there had not "'nudged [his] claims' of invidious discrimination 'across the line from conceivable to plausible.'" Id. at 1951 (quoting Twombly, 550 U.S. at 570). The Court found that many of the allegations in Iqbal's complaint were merely "conclusory and not entitled to be assumed true." Id. It then emphasized the backdrop against which the case was brought. The Court reasoned that, given the prevailing post-September 11th environment, Ashcroft's and Mueller's actions "were likely lawful and justified by [their] nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts." Id. "As between that 'obvious alternative explanation' for the arrests" and "the purposeful, invidious discrimination [the plaintiff] asks us to infer," the Court ruled, "discrimination is not a plausible conclusion." Id. at 1951-52 (citing Twombly, 550 U.S. at 567). Moreover, the Court added, even accepting the truth of the plaintiff's factual allegation that Ashcroft and Mueller had adopted a policy approving harsh confinement for post-September 11th detainees, the complaint "does not show, or even intimate, that [they] purposefully housed detainees [in harsh conditions of confinement] due to their race, religion, or national origin." Id. at 1952. Rather, "[a]ll it plausibly suggests is that the Nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity." Id. Because such a motive would not contravene the defendants' constitutional obligations - because the plaintiff's complaint "does not contain any factual allegation sufficient to plausibly suggest [their] discriminatory state of mind" - the pleading failed to meet the standard necessary to comply with Rule 8. Id. The Supreme Court in Iqbal never cited Swierkiewicz. It certainly never suggested that it was purporting to overrule it. It would thus be inappropriate for a lower court to conclude that the holding in Swierkiewicz is no longer valid. Cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."); see also United States v. O'Brien, 130 S. Ct. 2169, 2174 (2010) (same). And, as already noted, the Court in Twombly fully embraced the result in Swierkiewicz (indeed even suggested that Swierkiewicz was in complete harmony with its revised interpretation of Rule 8). Further, the Supreme Court has cited Swierkiewicz in three post-Twombly decisions (including one post-Iqbal decision), never once hinting that either Twombly or Iqbal has cast doubt on Swierkiewicz's continuing vitality. See Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 327 (2007); Erickson v. Pardus, 551 U.S. 89, 94 (2007). In fact, in a very recent ruling from this term, the Court cited Swierkiewicz, instead of either Iqbal or Twombly, in discussing the applicable standards for resolving a motion to dismiss for failure to state a claim. See Skinner, 131 S. Ct. at 1296. If the Court had any doubts about the validity of Swierkiewicz after Twombly and Iqbal, surely it would not be pointing to Swierkiewicz as a primary source of current Court thinking on notice-pleading. Similarly, none of this Court's cases has held that Swierkiewicz is no longer good law. To the contrary, numerous post-Twombly decisions from this Court have continued to cite to Swierkiewicz. See, e.g., al-Kidd v. Ashcroft, 580 F.3d 949, 974 (9th Cir. 2009), overruled on other grounds, Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) (recognizing that Twombly "expressly disclaimed any intention to require general 'heightened fact pleading of specifics,' . . . and reaffirmed the holding" in Swierkiewicz) (quoting Twombly, 550 U.S. at 570); Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 n.2 (9th Cir. 2009) (citing Swierkiewicz as an example of a case where the "Supreme Court has admonished attempts to augment pleading requirements"); see also Ojo v. Farmer's Group, Inc., 565 F.3d 1175, 1182, 1192 (9th Cir. 2009) (citing Swierkiewicz); Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1123, 1124 (9th Cir. 2008) (same); Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008) (same); Alvarez v. Hill, 518 F.3d 1152, 1157, 1159 (9th Cir. 2008) (same); Williams v. Boeing, 517 F.3d 1120, 1130-31 (9th Cir. 2008) (same); Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 841-42 (9th Cir. 2007) (same). One of this Court's recent decisions does suggest that there is some tension between Swierkiewicz and Iqbal/Twombly. In Starr v. Baca, 633 F.3d 1191 (9th Cir. 2011), a former inmate in a county jail sued the local Sheriff under Section 1983 for violating his rights under the Eighth and Fourteenth Amendments to the U.S. Constitution. Id. at 1194-95. A divided panel of this Court reversed the district court's decision dismissing the complaint with prejudice under Rule 12(b)(6). Id. at 1205. In doing so, the panel majority recounted the Supreme Court's recent holdings in Twombly and Iqbal. Id. at 1202-03. It then discussed Swierkiewicz, observing that the Court there "appears to have applied the original, more lenient version of Rule 8(a)." Id. at 1203; see also id. at 1204 ("Even though the Court stated in all [three] cases that it was applying Rule 8(a), it is hard to avoid the conclusion that, in fact, the Court applied a higher pleading standard" in Twombly and Iqbal). The majority found the "juxtaposition of Swierkiewicz" on the one hand, and Twombly and Iqbal on the other, "perplexing." Id. Nevertheless, this Court in Starr did not hold that Swierkiewicz was no longer good law. Other Courts of Appeals also have found that Swierkiewicz is still valid. Very recently, the D.C. Circuit cited Iqbal and Swierkiewicz, concluding that "an employment discrimination plaintiff is not required to plead every fact necessary to establish a prima facie case to survive a motion to dismiss." See Jones v. Air Line Pilots Ass'n, Int'l, F.3d , 2011 WL 2417140, at *3 (D.C. Cir. 2011) (citing Swierkiewicz, 534 U.S. at 511) (emphasis in original). Similarly, the Second Circuit recently concluded that the holding in Swierkiewicz is perfectly consistent with both Iqbal and Twombly. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010); see also Perry v. NYSARC, Inc., No. 10-5177-CV, 2011 WL 2117950, at *2 (2d Cir. 2011) (citing Swierkiewicz, 534 U.S. at 511) (explaining that "[to] survive a motion to dismiss, a complaint alleging workplace discrimination and retaliation need not plead facts sufficient to defeat summary judgment"). In addition, the First Circuit has recognized that Twombly explicitly affirmed Swierkiewicz. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 10 (1st Cir. 2011) (concluding that Twombly's plausibility requirement did not impose a heightened pleading standard, "and was therefore not inconsistent with the Supreme Court's previous declaration in Swierkiewicz . . . that a court may not insist on the allegation of 'specific facts' that would be necessary to prove the claim at trial") (citing Twombly, 550 U.S. at 570). So has the Seventh Circuit. See Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) ("The Supreme Court's explicit decision to reaffirm the validity of Swierkiewicz . . . which was cited with approval in Twombly . . . indicates that in many straightforward cases, it will not be any more difficult today for a plaintiff to meet that burden than it was before the Court's recent decisions."). Further, the Eleventh Circuit also has continued to cite Swierkiewicz. See Cleveland v. Sec. of Treasury, 407 F.App'x 386, 2011 WL 13608, at **2 (11th Cir. 2011) (citing Twombly and Iqbal, but also citing Swierkiewicz for the still-valid proposition that "a complaint in an employment discrimination lawsuit need not contain specific facts establishing a prima facie case of discrimination") (emphasis in original). Two Courts of Appeals have indicated that Twombly and Iqbal abrogated Swierkiewicz, at least in part. In Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009), the Third Circuit reasoned that "because Conley has been specifically repudiated by both Twombly and Iqbal, so too has Swierkiewicz, at least insofar as it concerns pleading requirements and relies on Conley." Cf. Swanson, 614 F.3d at 410 (noting that while Twombly cited Swierkiewicz with approval, Swierkiewicz "is regarded in some quarters as dead after Iqbal") (citing Fowler) (Posner, J., dissenting in part). In Francis v. Giacomelli, 588 F.3d 186, 192 n.1 (4th Cir. 2009), the Fourth Circuit found, in a footnote, that the pleading standard noted in Swierkiewicz "was explicitly overruled in Twombly."<1> However, to the extent these cases may suggest that Swierkiewicz's core holding has been overruled, the Commission believes they were simply wrongly decided. Swierkiewicz did cite Conley, but only for the unremarkable - and still valid - proposition that Rule 8(a)(2) requires only that the complaint "'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" See Swierkiewicz, 534 U.S. at 512 (quoting Conley, 355 U.S. at 47); cf. Twombly, 550 U.S. at 555. And the Court in Swierkiewicz did at one point refer to the "no set of facts" standard. See Swierkiewicz, 534 U.S. at 514 (quoting Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984) (in turn citing Conley)). But this passing reference was not essential to the result in Swierkiewicz. The rationales the unanimous Court gave in reaching its result in Swierkiewicz - e.g., a prima facie case is an evidentiary standard, is not required in every discrimination case, should not be used to erect rigid pleading requirements - are equally applicable post- Iqbal.<2> See, e.g., Harley v. Paulson, No. 07-3559 (JBS), 2008 WL 5189931, at *3 (D.N.J. Dec. 9, 2008) (reiterating the reasoning the Court gave in Swierkiewicz for refusing to require plaintiffs to plead a prima facie case, stating that its holding is still good law, and providing that Twombly only abrogated Swierkiewicz on other grounds). Thus, while the brief passage in Swierkiewicz containing the "no set of facts" language has now been abrogated, the basic holding of the case has not. Indeed, even the two Courts of Appeals that questioned the continuing force of Swierkiewicz have since backtracked on this issue. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 319 n.17 (3d Cir. 2010) (stating "we are not so sure" about Fowler's earlier statement that Twombly and Iqbal had repudiated Swierkiewicz, and finding this part of Fowler to be dicta); Coleman v. Md. Courts of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing Swierkiewicz for the proposition that "a plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss"); cf. Fisher v. Md. Dep't of Pub. Safety & Corr. Servs., No. JFM 10-CV-0206, 2010 WL 2732334, at *2 n.1 (D. Md. July 8, 2010) ("Although the general 12(b)(6) standard used in Swierkiewicz was overruled by Twombly . . . the analysis [that a plaintiff does not need to plead a prima facie case] remains good law."); Hughes v. Colo. Dep't of Corr., 594 F. Supp. 2d 1226, 1240 (D. Colo. 2009) (same). That said, given potential confusion over this question, the Commission urges this Court to state explicitly that the holding in Swierkiewicz - that a plaintiff does not need to plead a prima facie case of discrimination to survive a motion to dismiss - remains good law. Since the district court in this case effectively held the opposite, its ruling reflects plain legal error. II. Sheppard's Amended Complaint Stated a Plausible Claim under Twombly and Iqbal. In any event, Sheppard's amended complaint more than met the general notice pleading standards as clarified by Iqbal and Twombly. Cf. Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 215 (S.D.N.Y. 2010) ("Reconciling Swierkiewicz, Twombly, and Iqbal, a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however, the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.") (internal quotation marks omitted). From her amended complaint, it is obvious that Sheppard is bringing an individual claim of intentional age discrimination. The amended complaint alleges that Sheppard is protected by the ADEA because she is over 40. It further alleges that Evans fired her, that her performance had been satisfactory or better and she had consistently received good performance reviews, and that Evans did not fire younger comparators. Sheppard's amended complaint provided more than enough "factual enhancement," Twombly, 550 U.S. at 557, to put Evans on notice as to the nature of Sheppard's claim and the grounds upon which it rests. Cf. Swierkiewicz, 534 U.S. at 512, 514 (quoting Conley, 355 U.S. at 47); Twombly, 550 U.S. at 555. In addition, the allegations contained in Sheppard's amended complaint should be considered plausible. Twombly and Iqbal both teach that in evaluating facial plausibility, context is crucial. See Twombly, 550 U.S. at 557; Iqbal, 129 S. Ct. at 1954. However, the context in this case is quite unlike the singular scenario in Iqbal, where the plaintiff had alleged that the highest-ranking law enforcement officials in the U.S. government had personally conspired to deprive specific individuals of their constitutional rights. This case, by stark contrast, involves a routine employment decision made in a typical workplace setting of the sort where employment discrimination generally is still, unfortunately, far too common. See, e.g., Joseph A. Seiner, After Iqbal, 45 Wake Forest L. Rev. 179, 181 (2010) (explaining that the "substantial data suggesting that employment discrimination continues to flourish in our society . . . strongly suggests that an allegation of discriminatory intent in the employment context is far more plausible on its face than the relatively more dubious factual allegations set forth in Twombly and Iqbal");<3> see also Charles A. Sullivan, Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613, 1670 (2011) (similarly finding that "substantial literature provides reason to believe that discriminatory attitudes, whether implicit or explicit but covert, are pervasive and that they result in discriminatory decisions far more often than many would like to believe"). Given this context, Sheppard's amended complaint provides enough facts to "plausibly suggest [Evans's] discriminatory state of mind." Iqbal, 129 S. Ct. at 1952. On its face, the amended complaint alleges that age - and not the "obvious alternative explanation," id. at 1951-52, of deficient performance - motivated Evans's decision to fire Sheppard.<4> At the least, Sheppard has "nudged [her] claim[] across the line from conceivable to plausible." Twombly, 550 U.S. at 570; cf. Swanson, 614 F.3d at 404-05 ("That is an entirely plausible scenario, whether or not it describes what 'really' went on in this plaintiff's case."). The amended complaint thus sufficiently states a claim of age discrimination to survive a motion to dismiss. In ruling otherwise, the district court committed reversible error. CONCLUSION For the foregoing reasons, the EEOC urges this Court to reverse the ruling of the district court, and remand this case for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel s/ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street NE, Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov CERTIFICATE OF COMPLIANCE 1. This amicus curiae brief complies with the type-volume limitations found in Fed. R. App. P. 29(d) and Fed. R. App. P. 32(a)(7)(B)(i) because it contains 6,527 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. 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 proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14-Point font. s/ DANIEL T. VAIL U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street NE, Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on June 24, 2011. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. s/ DANIEL T. VAIL U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street NE, Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov ********************************************************************************** <> <1> Certain district courts also have concluded that at least part of Swierkiewicz did not survive Twombly and/or Iqbal. See, e.g., Bacon v. Ga. Ports Auth., No. CV410-281, 2010 WL 5538515, at *1 (S.D. Ga. Dec. 17, 2010) (observing that "[t]here was a time when it was not necessary for plaintiffs . . . to plead sufficient facts establishing all of the Title VII elements") (citing Swierkiewicz); Williams v. Woddford, No. 1:06-cv-01535-DLB (PC), 2009 WL 3823916, at *1 (E.D. Cal. Nov. 13, 2009) (noting that Twombly overruled Swierkiewicz "in part"); United States v. Nobel Learning Cmtys., Inc., 676 F. Supp. 2d 379, 382 n.6 (E.D. Pa. 2009) (finding that Iqbal and Twombly "effectively overruled Swierkiewicz to the extent that it concerns pleading requirements") (citing Fowler); Premier Pork L.L.C. v. Westin, Inc., No. 07-1661, 2008 WL 724352, at *3 (D.N.J. Mar. 17, 2008) (similarly stating that Swierkiewicz has been "abrogated in part" by Twombly); Aztec Energy Partners, Inc. v. Sensor Switch, Inc., 531 F. Supp. 2d 226, 228 (D. Conn. 2007) (stating that "the long-standing ["no set of facts"] principle recently restated in [Swierkiewicz] . . . is no longer the appropriate standard"); see also Sablan v. A.B. Won Pat Int'l Airport Auth, Guam, No. 10-00013, 2010 WL 5148202, at *4 (D. Guam Dec. 9, 2010) (concluding "not that Swierkiewicz has been overruled, but rather that, after Twombly and Iqbal, an employment discrimination plaintiff must get closer to alleging a prima facie case than was necessary a few years ago") (emphasis in original); cf. Davis v. Metro. Gov't of Nasvhille, No. 3-10-0721, 2011 WL 902138, at *1, n.1 (M.D. Tenn. Mar. 15, 2011) (noting that "[s]ince Twombly and [Iqbal], some lower courts have concluded that the Swierkiewicz standard has been overruled" but indicating "it remains an open question" in the Sixth Circuit) (citing Davis v. Kroger Co., No. 1:09-cv-789, 2010 WL 5882114, at *2 (S.D. Ohio Sept. 15, 2010)). But see Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 728 (6th Cir. 2009) (post-Iqbal, citing Swierkiewicz and reiterating that the prima facie case is "not a pleading requirement"). <2> In refusing to require plaintiffs to plead a prima facie case, the Court in Swierkiewicz also discounted the argument that "allowing lawsuits based on conclusory allegations to go forward will burden the courts and encourage disgruntled employees to bring unsubstantiated suits[,]" concluding that this concern should best be addressed, if at all, through the amendment of the Federal Rules rather than through "judicial interpretation." Swierkiewicz, 534 U.S. at 514- 15 (internal quotation marks omitted). This is consistent with Iqbal's subsequent pronouncement that "the Federal Rules do not require courts to credit a complaint's conclusory statements without reference to its factual context." 129 S. Ct. at 1954. That is, while plaintiffs do not need to plead a prima facie case, they do have to place their claim in enough of a factual context to render it plausible. Cf. id. (Rule 8 "does not empower [a plaintiff] to plead the bare elements of his cause of action, affix the label 'general allegation,' and expect his complaint to survive a motion to dismiss."). <3> Indeed, Professor Seiner argues that this data "leaves little question regarding the persistence of employment discrimination" and suggests that "an allegation of discriminatory intent in the employment context is on its face plausible." Seiner, 45 Wake Forest L. Rev. at 204. <4> Indeed, Sheppard explicitly alleged in her complaint that Evans fired her because of her age. At first blush, this allegation might seem purely "conclusory and not entitled to be assumed true." Iqbal, 129 S. Ct. at 1951. However, in employment discrimination cases, the defendant's motive - i.e., whether the employer intentionally discriminated - is purely a question of fact. Anderson v. Bessamer City, 470 U.S. 564, 566, 573 (1985); Pullman-Standard v. Swint, 456 U.S. 273, 288-90 (1982); Lowe v. City of Monrovia, 775 F.2d 998, 1008-09 (9th Cir. 1985). Swierkiewicz, Twombly, and Iqbal all recognize that at the motion-to-dismiss stage, the trial court must accept all facts alleged in the complaint as true. See Swierkiewicz, 534 U.S. at 508 n.1; Twombly, 550 U.S. at 555-56; Iqbal, 129 S. Ct. at 1949-50; see also Erickson, 551 U.S. at 94 (same) (citing Twombly and Swierkiewicz). Thus, in disparate treatment cases like this one - where the fact of employer intent is critical - a court should be especially wary of dismissing the complaint for failure to state a claim. Cf. Iqbal, 129 S. Ct. at 1954 ("'[A] rigid rule requiring the detailed pleading of a condition of mind would be undesirable because, absent overriding considerations pressing for a specificity requirement, as in the case of averments of fraud or mistake, the general 'short and plain statement of the claim' mandate in Rule 8(a) . . . should control . . . .'") (quoting 5A C. Wright & A. Miller, Federal Practice and Procedure § 1301, p. 291 (3d ed. 2004)).