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Merely Alleging Decision-Maker Bias Insufficient to State a Title VII Claim

It’s a victory for Fourth Circuit employers (Maryland, North Carolina, South Carolina, Virginia and West Virginia) as the court clarifies that a complaint alleging employment discrimination must contain facts in support of each element of a claim in order to survive a motion to dismiss. McCleary-Evans v. Maryland Dept. of Transportation, No. 13-2488 (4th Cir. March 13, 2015).

In this case, McCleary-Evans, an African-American woman, applied for two different positions at the Maryland Highway Administration but was not selected for either. With over twenty years experience in the field, McCleary-Evans felt that she was “more than qualified” for the positions. Certain that her non-selection was the result of race and gender bias, she filed suit in Maryland’s federal district court, alleging claims for race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

McCleary-Evans’s complaint alleged that her applications were subject to a review panel “significantly influenced and controlled by … a White male,” who was supervised by “a non-Black woman.” She also alleged that the two decision-makers had “predetermined to select for both positions a White male or female candidate,” and that “although African American candidates had been among the selection pool,” they, “for reasons of race and gender, overlooked the African American candidates to select White male, preferably and White female candidates.” Glaringly absent were any allegations regarding the qualifications of the individuals who were ultimately hired. The district court dismissed the claims for failure to plead sufficient facts to “state a prima facie case of discrimination” (the threshold evidentiary standard).

On appeal, McCleary-Evans relied on the Supreme Court’s decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), arguing that the lower court improperly imposed a “more rigorous” pleading standard than is required at the initial motion to dismiss stage. The Fourth Circuit agreed, but nonetheless found that dismissal was warranted because McCleary-Evans failed to allege facts in support of each element of her claim, as required under the Iqbal/Twombly plausibility standard. “Indeed,” the majority stated, “the consequence of allowing McCleary-Evans’ claim to proceed as stated would be that any qualified member of a protected class who alleges nothing more than that she was denied a position or promotion in favor of someone outside her protected class would be able to survive [a motion to dismiss].”

Judge Wynn dissented as to the dismissal of McCleary-Evans’s racial discrimination claim, explaining: “At the early stages of Title VII litigation, borderline conclusory allegations may be all that is available to even the most diligent plaintiffs. The requisite proof of the defendant’s discriminatory intent is often in the exclusive control of the defendant, behind doors slammed shut by an unlawful termination.” According to Judge Wynn, a case involving wrongful termination of an employee (Swierkiewicz) had greater applicability to Mc-Cleary Evans’s case, than one involving a terrorist alleging mistreatment pursuant to an unconstitutional policy (Iqbal). It was obvious, therefore, that the less onerous pleading standard was the appropriate one to apply.

 

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