Elizabeth Grossman Equal Employment Opportunity Commission Regional Attorney, New York April 23, 2012
Drafting Statement of Claim Identify the specific alleged adverse action If not obvious, indicate how the action is adverse, for example terms, conditions or privileges or discipline should be explained Describe when the adverse action was taken Use exact dates or date range where known Identify when action is ongoing 2
Drafting Statement of Claim (cont d) Allege that defendant took action because of protected characteristic Include facts in support of causation, such as individuals who were treated differently, closeness in time, or bias toward protected group Plead each issue and basis individually Reference each defendant s role separately or that entities are clearly related 3
Assert There Is No Heightened Pleading Standard for Discrimination Claims Plaintiff sufficiently pleaded a complaint of national origin discrimination when his complaint alleged a violation of Title VII and detailed the events leading to his [adverse employment determination], provided relevant dates, and included... nationalities of at least some of the relevant persons involved with his termination. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002) 4
Argue that Swierkiewicz is good law Denying 12(b)(6) motion, holding that an employment discrimination complaint that cites the specific adverse employment action challenged, the nature of the discrimination, and the time period involved provides a defendant with sufficient notice of the claim and the grounds upon which it is based. EEOC v. Propak Logistics, Inc., 09 311, 2010 WL 3081339, *5 6 (W.D.N.C. Aug. 6, 2010); EEOC v. Scrub, Inc., 09 4228, 2009 WL 3458530, *2 (N.D. Ill. Oct. 26, 2009) 5
Do Not Allow Defendants To Confuse Pleading With Proof There is no legal requirement to: Prove prima facie case Allege each element of a claim Plead legal theories Identify policy unless disparate impact Include all facts in support of claim Name all victims 6
No Need to Plead Facts or Evidence A complaint need not allege all, or any, of the facts logically entailed by the claim, and it certainly need not include evidence. Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998); McQueen v. City of Chicago, 803 F. Supp. 2d 892, 906 07 (N.D. Ill. 2011) 7
Manner of Proof The manner of proof is distinct from pleading requirements. Scrub, 2009 WL 3458530 at *2 (citing Bell Atlantic Corp v. Twombly, 550 U.S. 544 at 570; Swierkiewicz, 534 U.S. at 514 15); see also Griffin v. Home Depot USA, Inc., 11 2366, 2012 WL 38647, *3 (D. Kan. Jan. 9, 2012). 8
Facts Beyond Statement of Claim It is not necessary to include facts beyond those necessary to state a claim You may wish to include additional details as facts and not as claims If including additional facts, make sure they are accurate and legally relevant Make clear that each sentence is a statement of fact rather than an actual claim 9
Avoid Use of Legal Terms, Plead Facts Three Examples of Legal Terms Which Are NOT Necessary to Plead: 1. Relationship to others Comparator Similarly Situated Disparate Treatment 2. Theory of Liability Integrated Enterprise/Joint Employer Strict Liability 3. Method of Proof/Evidentiary Standard Pattern or Practice/Standard Operating Procedure McDonnell Douglas framework 10
Use of Direct Quotes There is no legal requirement to provide exact oral statements Best to use quotations for comments/direct evidence, such as racial slurs May want to attach documents if evidence very clearly indicates evidence of bias 11
Identification of Third Parties Use position/title/role rather than name unless high level Decision makers Human Resources Co workers Those treated more favorably 12
ADA Pleadings Plead facts showing aggrieved individual has a disability Allege coverage under all prongs that apply Identify at least one major life activity and consider the possibility of others Use exact statutory and regulatory language, do not rephrase 13
Harassment Pleadings Identify harassers by position Make clear where there are multiple perpetrators Provide date range of harassment Describe the harassment Explain nature of harassment such as physical, verbal, pictorial, electronic Include factual support, such as references to jokes, description of unwanted touching of rear end 14
Pleadings in Statistical Cases It is not necessary to plead actual statistics Consider pleading raw numbers instead of conclusions Early statistics are likely unrefined, expert should conduct additional analysis Data used in discovery will probably be different Possible waiver of privilege 15
Cites Pleadings in Statistical Cases A Title VII complaint alleging discrimination against a class of victims need not allege percentages, statistics, or statistical support to survive a motion to dismiss. McQueen v. City of Chicago, 803 F. Supp. 2d 892, 906 07 (N.D. Ill. 2011) The EEOC may prove this pattern or practice of discrimination through statistical and anecdotal evidence that need not be recited in the complaint. Propak Logistics, 2010 WL 3081339 at *5 (citing International Broth. Of Teamsters, 431 U.S. at 336 43; Swierkiewicz, 534 U.S. at 510) U.S. v. Nobel Learning Communities, Inc., 676 F. Supp. 2d 379, 384 (E.D. Pa. 2009) ( Although many courts use statistical information at the summary judgement [sic] stage to evaluate pattern or practice claims, such data is not required to survive a motion to dismiss. ). 16
THANK YOU! Elizabeth Grossman EEOC Regional Attorney New York District Office (212) 336 3696 elizabeth.grossman@eeoc.gov 17