EEOC Lawsuit Tossed for Lack of Factual Allegations

Darrell VanDeusen
Darrell VanDeusen
10/24/2017

As every first year law student learns, when a party files a lawsuit in federal court, the expectation is that sufficient facts will be alleged to state a claim upon which relief can be granted.  When this does not occur, a defendant may file a motion to dismiss the lawsuit under Federal Rule of Civil Procedure 12(b)(6).  Seems simple enough, but it is not.

On one hand, there’s the Supreme Court’s decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506  (2002), which held that it is incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he or she might ultimately need to prove to succeed on the merits if direct evidence of discrimination was discovered. The prima facie case under McDonnell Douglas v. Green, 411 U.S. 792 (1973), noted the Court, is an evidentiary standard, not a pleading requirement.   This suggests “notice” pleading is sufficient.

On the other hand, however, we have the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), where the Court held that more than speculative allegations are required to survive a motion to dismiss — facts must be alleged.

In employment discrimination cases, plaintiffs’ attorneys take a couple different approaches.  Some lawyers decide to allege everything but the “kitchen sink” (and sometimes they include that too), with many hundreds of paragraphs of allegations.   This is rarely useful to a court, and often is done mainly for the purpose of busting the attorney for the defendant employer’s chops, who will have to respond to each allegation in an answer to the complaint.  Other lawyers provide sufficient facts to state a claim, but hold the nitty gritty details for later.

Then, there are those lawyers who provide almost nothing of substance in a complaint, almost begging that a motion to dismiss to be filed.  When it’s the EEOC that takes such an approach, however, one wonders about the method behind such madness.

Such is the case in EEOC v. R&L Carriers Shared Servs., LLC, 2017 U.S. Dist. LEXIS 172424 (S.D. Ohio Oct. 18, 2017).  Here, the EEOC sued a company “to correct unlawful employment practices based on sex and to provide relief to a class of female applicants and deterred female applicants who were adversely affected by such practices.”  The sole factual allegation of wrongdoing was “[s]ince at least January 1, 2010, Defendants have engaged in unlawful employment practices at their Wilmington, Ohio, location in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a). These practices include, but are not limited to, refusing to hire women as dockworkers or loaders.”

The company moved to dismiss, relying on a similar case, EEOC v. WW Grp., Inc., 2012 U.S. Dist. LEXIS 22477 (E.D. Mich. Feb. 22, 2012), where the district court  found the EEOC’s complaint deficient when all what was alleged was that “[o]n or about September 14, 2009, Defendant Employer engaged in an unlawful employment practice in violation of Section 701 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e—2(a)(1), by discriminating against Lamond—Broughton on the basis of her sex by refusing to hire her as Group Leader because she was pregnant at the time of her application.”

The district court in WW Group faulted the EEOC for alleging unfair employment practices, but identifying only one unlawful incident, for failing to indicate where the unlawful incident took place, and for failing to identify with whom Lamond-Broughton met, or how or where she was refused employment, stating that the EEOC “can, and must, plead better.”

The court agreed with the employer here, and dismissed the complaint but provided the EEOC with leave to file an amended complaint that met the pleading requirements of Iqbal and Twombly, even though the EEOC did not provide a suggested amended complaint as required the Federal Rules.

The court note, that “[a]s the Seventh Circuit commented in another case brought by the EEOC, the Federal Rules of Civil Procedure ‘do not require unnecessary detail, but neither do they promote vagueness or reward deliberate obfuscation.’  E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 780 (7th Cir. 2007). The Court has reason to believe that the EEOC knows more facts about the alleged discriminatory conduct than it pleaded in the Complaint. First, the EEOC has sufficient knowledge to have issued an Amended Letter of Determination on November 8, 2016 ‘finding reasonable cause to believe that Title VII was violated . . . .’ Second, in its Memorandum in Opposition, the EEOC informally requests leave to amend the Complaint. Presumably, the EEOC would not request leave to amend if it did not have additional facts to plead. The Court has the authority to deny leave to amend when, as here, a plaintiff fails to submit the proposed amended pleading for review . . . .  However, in this case, which is at the earliest stage of litigation, the equities favor granting the EEOC leave to amend the Complaint.”

So, let’s consider what happened here.  The EEOC investigated a discrimination charge, found reasonable cause to believe discrimination occurred and then sued the employer.  But the EEOC, which as the court noted, investigated at least enough to find reasonable cause, did not even spend enough time in drafting the complaint to meet the minimal standard required.   Basic first year law school stuff.   The cost to the employer in having to address this basic deficiency by filing a motion to dismiss (remember, unlike a private company, the EEOC’s fees and costs are paid for with your tax dollars) is, at best, unfortunate.  To paraphrase the court in WW Group, the EEOC can and should do better.

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