Justices Won't Review Pleading Standard In Terminated Law Professor's Bias Suit

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By Kevin P. McGowan  

June 2 — Denying a terminated Ohio law school professor's petition, the U.S. Supreme Court June 2 declined to review whether a discrimination complaint that alleges a prima facie case under Title VII of the 1964 Civil Rights Act may nevertheless be summarily dismissed as not raising a plausible claim.

The court denied former University of Dayton School of Law professor Sam Han's petition to review a U.S. Court of Appeals for the Sixth Circuit unpublished opinion that although Han, an Asian-American male, alleged a prima facie case of race and sex discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973), a district court properly dismissed his complaint as implausible (541 Fed. App'x 622, 120 FEP Cases 1004 (6th Cir. 2013)).

In seeking review, Han said his case squarely presents the issue of whether a Title VII plaintiff who alleges a prima facie case of discrimination may have his complaint dismissed as not stating a plausible claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as interpreted in under Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Han urged the court to address what he called unresolved tension between Supreme Court cases including Swierkiewicz v. Sorema, 534 U.S. 506, 88 FEP Cases 1 (2002), in which the court said a Title VII plaintiff need not allege every element of a prima facie case to satisfy federal pleading standards, and the subsequent decisions in Iqbal and Twombly, in which the court toughened plaintiffs' pleading requirements.

Circuits Split on What Satisfies Iqbal

The federal appeals courts are split on whether a Title VII plaintiff who alleges a prima facie case, which is more than Swierkiewicz requires, necessarily submits a facially plausible complaint that can't be dismissed under the Iqbal and Twombly standard, Han said.

“This petition presents a question of great practical significance in an extremely important area of substantive law,” Han said. “Namely, do facts establishing a prima facie case of discrimination necessarily establish plausibility?”

The Sixth Circuit's decision is “irreconcilable” with Iqbal's statement that a claim has “facial plausibility” when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Han said.

The decision also conflicts with Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981), in which the court said “the prima facie case raises an inference of discrimination” and establishing a prima facie case “in effect creates a presumption that the employer unlawfully discriminated against the employee,” Han said.

“Thus, while pleading a prima facie case may not be necessary, a complaint that sets forth a prima facie case necessarily raises a reasonable inference of discrimination,” Han said.

Han said his case offered the Supreme Court “an ideal vehicle” for “resolving the question presented and for clarifying the muddled approaches taken by the lower courts on what is necessary for a discrimination plaintiff to survive an Iqbal challenge.”

Han, of Beavercreek, Ohio, represented himself.

Inapt ‘Apples and Oranges' Comparison

In its brief opposing review, the University of Dayton said in contrast to Han's account, neither the district court nor the Sixth Circuit “ ‘acknowledged' or concluded at any point that [Han] had set forth facts establishing each element of the McDonnell Douglas burden-shifting formula.”

Rather, the lower courts found that Han failed to plead he was replaced by someone outside his protected classes or to allege sufficient facts showing he was treated differently than similarly situated employees outside his protected classes, the university said.

Therefore, the question that Han contends is directly presented by his case—whether a Title VII plaintiff who pleads a prima facie case necessarily satisfies Iqbal's plausibility standard—isn't presented by this case, the university said.

In any event, Han's petition “asks this court to mix apples and oranges” by urging the court to decide if a complaint stating evidentiary requirements—the McDonnell Douglas prima facie case paradigm—satisfies pleading requirements, as set out in Twombly and Iqbal, the university said.

“[I]t simply is not useful to speak of allegations which happen to correspond with evidentiary requirements for unrelated burden-shifting purposes as necessarily establishing anything for pleading purposes,” the university said.

“Indeed, it was this very principle, i.e., that the pleading of allegations which conform to a prescribed formula is not necessarily sufficient to adequately plead the claim described by that formula, which led this [Supreme] Court in Iqbal to demand that the discrimination complaint in that case do more than paraphrase the elements of a claim,” the university said.

Han's purported split of authority among the federal appeals courts proves nonexistent when the Sixth Circuit's actual ruling is compared with other circuits' opinions, the university said.

Paul G. Hallinan of Porter Wright Morris & Arthur in Dayton, Ohio, represented the university.

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com