The recent Supreme Court decision in Swierkiewicz v. Sorema rejected the reasoning of lower court decisions which imposed a pleading burden on discrimination plaintiffs greater than that required by Federal Rule of Civil Procedure 8(a)(2). That rule requires a complaint to contain no more than "... a short and plain statement of the claim showing that the pleader is entitled to relief." Notwithstanding the lightened burden of Rule 8(a)(2) some lower court decisions had required more.

The ruling by the Second Circuit in the Swierkiewicz case upheld the district court's dismissal of her complaint. The appellate court relied on earlier Second Circuit precedent that evaluated pleadings on the basis of what is required to prove a prima facie discrimination case. In Austin v. Ford Models, Inc. the Second Circuit upheld the dismissal of the plaintiff's sex discrimination claim under Title VII of the 1964 Civil Rights Act ("Title VII) and her claim under the Age Discrimination in Employment Act (the "ADEA") for denial of overtime pay. The court ruled it fatal to the complaint that the plaintiff had failed to plead either that overtime was paid only to males and persons younger than her or other circumstances from which an inference of race or age discrimination could be inferred. Ms. Austin's claims of sex discrimination in the denial of additional staffing were also dismissed where her pleadings admitted that two other women received additional staffing while failing to state any facts "giving rise to an inference of [sex] discrimination." One lesson for plaintiffs from the Austin decision is to avoid excessive factual allegations that can defeat your claim. In Tarshis v. The Riese Organization the Second Circuit affirmed the district court's finding that the plaintiff had failed to state a Title VII claim of national origin discrimination. His complaint indicated on its face that the offending supervisor and the plaintiff's replacement were Hispanic but his own national origin was not shown. The district court decision was reversed and remanded on other grounds with a mandate to allow the plaintiff to amend his complaint.

The Sixth Circuit required the plaintiff to plead facts that explicitly demonstrate a prima facie discrimination claim in Jackson v. City of Columbus. The court held that to state a claim under 42 U.S.C. §1981 and § 1983 the complaint must allege facts showing direct evidence of discrimination or facts showing the four elements of a McDonnell Douglas circumstantial evidence case. The plaintiff's race discrimination complaint was found to be insufficient where it failed to "...allege facts showing that non-minority employees who were similarly situated in all respects were treated differently ..., not simply that plaintiff's circumstances were unique."

In Ring v. First Interstate Mortgage, Inc. the Eighth Circuit reversed the Rule 12(b)(6) dismissal of a Fair Housing Act (FHA) claim in which the plaintiff complained of racial discrimination in his being denied financing for residential real estate. The district court found that a prima facie case under the Fair Housing Act paralleled the proof of intentional discrimination by circumstantial evidence required by McDonnell Douglas and its progeny, Texas Department of Community Affairs v. Burdine. There must be a showing that the plaintiff is in a protected group, that he was rejected for a loan for which he applied and for which he was qualified and that the defendant approved loans for others with qualifications similar to the Plaintiff's. The appellate court agreed with the trial court that the parties' order and allocation of proofs in an FHA case was like that required in McDonnell Douglas and Burdine. Nevertheless it held that this is an evidentiary standard rather than a pleading requirement.

The well reasoned decision of The Seventh Circuit in Bennett v. Marie Schmidt dealt with a complaint containing "12 'repetitious, rambling, and disorganized' pages." The district court had dismissed the complaint under Rule 12(b)(6) for its failure to allege the facts necessary to state a refusal to promote claim under Title VII. In reversing the district court the appellate panel commented that "'I was turned down for a job because of my race' is all that a complaint has to say." The Court further noted that under Rule 9(b) "Malice, intent, knowledge, and other conditions of a mind of a person may be averred generally." Quoting the Seventh Circuit's prior decision in American Nurses' Association v. Illinois the court stated that "a complaint is not required to allege all, or any, of the facts logically entailed by the claim ... A plaintiff does not have to plead evidence ...[A] complaint does not fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrongdoing." Pleaders are well advised to consider the admonition in Bennett that "Litigants may plead themselves out of court by establishing facts that establish defendants' entitlement to prevail." In pleading less is often more.

The D.C. Circuit agreed with Bennett, holding in Sparrow v. United Air Lines, Inc., a race discrimination action brought under 42 U.S.C. §1981, that "...a plaintiff need not set forth the elements of a prima facie case at the initial pleading stage." Citing Bennett the court noted that "in some cases, it is possible for a plaintiff to plead himself out of court by alleging facts that render success on the merits impossible." The court reasoned that

Under Federal Rule of Civil Procedure 8(a)(2), a claim need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief.' Rule 8(e)(1) states that '[e]ach averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required.' And rule 8(f) instructs that '[a]ll pleadings shall be so construed to do substantial justice.'

The Supreme Court considered the degree to which factual allegations are necessary in a complaint in Conley v. Gibson, an action brought by African American union members against their union under the Railway Labor Act. The plaintiffs complained of discrimination by the union in its representation of their interests when many were demoted or dismissed after their employer eliminated jobs. Finding that the plaintiffs had adequately pled their case the Court commented that "In appraising the sufficiency of a complaint we follow, of course, the accepted rule 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." The Court further ruled that

... the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts on which he basis his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant clear notice of what the plaintiff's claim is and the grounds on which it rests....Such simplified 'notice pleading' is made possible by the liberal opportunity for discovery and other pretrial procedure established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. ... The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. (Internal footnotes and citations omitted)

The detail necessary in pleadings was again addressed by the Court in Leatherman v. Tarrant County I.C.U, a 42 U.S.C. §1983 action in which the plaintiffs complained of Fourth Amendment violations in the searching of their homes for narcotics. The Fifth Circuit affirmed the District Court's dismissal of the plaintiff's complaint for its failure to adequately state a claim in accordance with a "heightened pleading standard" applicable to suits against municipalities. In reversing the decision below the Court stated

We think that it is impossible to square the "heightened pleading standard" applied by the Fifth Circuit in this case with the liberal system of 'notice pleading' set by the Federal Rules. Rule 8(a)(2) requires that a complaint include only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'

In Swierkiewicz the Court ruled that the Second Circuit had erred in requiring the plaintiff to plead the elements of a McDonnell Douglas prima facie case in order to survive a motion to dismiss for failure to state a claim. The Court held that the McDonnell Douglas prima facie case "...is an evidentiary standard and not a pleading requirement." The Court further reasoned that the elements required to prove a case of discrimination by circumstantial evidence, as set forth in the McDonnell Douglas, are not applicable in every discrimination case. Proof may be made by direct evidence which might be uncovered after the initial pleading stage in discovery. The Court would not require a plaintiff to plead more facts than it might be necessary to prove. Such would be inconsistent with the simplified pleading requirements of Rule 8(a)(2). As in Conley the court pointed to the availability of discovery to avoid surprise.

In finding that a heightened pleading standard is not required in employment discrimination cases the Court looked at the relationship of Rule 8(a) with other provisions of the Federal Rules of Civil Procedure. The Court observed that Rule 9(b) provides a limited exception to rule 8(a). It requires particularized pleading "in all averments of fraud or mistake," but it does not required detailed pleading for other types of actions. The Court also found Rule 8(a) to be linked to Rule 8(e)(1) which provides in part that "No technical forms of pleading or motions are required." The connection to Rule 8(f) was also noted. That rule requires that "All pleadings shall be so construed as to do substantial justice." Quoting Hishon v. King and Spaulding, 467 U.S. 69, 73 (1984) the Court stated "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." It further instructed that "The liberal notice pleading of rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim."

The Swierkiewicz decision, like Austin, Bennett and Sparrow, provides a reminder that the pleader does not have to try to win a the case with the initial pleading. It is best to follow the "less is more" rule and avoid pleading oneself out of a case.

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