The Motion to Dismiss for Workplace Plaintiffs after Iqbal and Twombly

Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark Law Review 15 (2010), at SSRN.

In Bell Atlantic v. Twombly, 550 U.S. 544 (2007), the Supreme Court adopted a plausibility test for pleading federal claims, replacing the more liberal standard from Conley v. Gibson, 355 U.S. 41 (1957), which had permitted a case to proceed “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.”  Id. at 45-46.  While Twombly was an antitrust case, the Supreme Court made clear in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), that the newly announced plausibility standard would apply to all civil cases.  In her recent article, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, Professor Suja A. Thomas demonstrates how these recent Supreme Court decisions have transformed the motion to dismiss into the motion for summary judgment.  This piece builds off of the strong foundation Professor Thomas has already established in this area, including her articles Why the Motion to Dismiss is Now Unconstitutional, 92 Minn. L. Rev. 1851 (2008), and Why Summary Judgment is Unconstitutional, 93 Va. L. Rev. 139 (2007).  The piece highlights the difficulties employment discrimination plaintiffs may now face when opposing a motion to dismiss.

In this article, Professor Thomas examines how, after Twombly and Iqbal, the standards for the motion to dismiss and the motion for summary judgment are now nearly identical.  In particular, both standards require a court to look to whether a claim is plausible.   After Iqbal, the plausibility test now clearly applies to motions to dismiss, and Professor Thomas demonstrates how the plausibility standard has similarly been applied in the summary judgment context.  In addition, for both the motion to dismiss and the motion for summary judgment, “courts assess both the inferences favoring the moving party and the inferences favoring the nonmoving party.”  (P. 30.)  Finally, according to Professor Thomas, when considering either type of motion, the courts are actively using their own opinions and views of the evidence to decide whether a particular claim should proceed.

As the two motions are “converging,” (P. 31), Professor Thomas points to some of the similar effects of this result.  She believes that the judiciary will now play a greater role in resolving disputes, likely resulting in a higher number of dismissals.   Professor Thomas views employment discrimination cases as one area where plaintiffs may be particularly vulnerable in this regard.  Pointing to several studies which have already been performed on the impact of the plausibility standard, she argues that “given the similarity of the motion to dismiss standard to the summary judgment standard and the propensity of judges to dismiss employment discrimination cases under summary judgment, it seems likely that the [trend to dismiss these cases] will continue.”  (P. 33.)

Perhaps more controversially, Professor Thomas persuasively argues in her paper that the Supreme Court’s decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), is no longer good law.  Swierkiewicz had held that an employment discrimination plaintiff need not “plead facts establishing a prima facie case.” Id. at 511-12.  Rather, a plaintiff need only comply with Federal Rule of Civil Procedure 8(a)(2), which requires that the plaintiff set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.”  Id.  Professor Thomas identifies an emerging divergence of views in the federal appellate courts – as well as the academic scholarship – over the extent to which the Swierkiewicz decision survives after Iqbal and Twombly.  She maintains that Swierkiewicz is now problematic in that it “appeared to permit conclusory pleading,” (P. 35), which was specifically rejected by the recent Supreme Court decisions.  Similarly, the more relaxed pleading standard found in Swierkiewicz “does not comport,” (P. 36), with the seemingly heightened plausibility pleading standard, which the Court has now established.  And, Twombly rejected the Conley “no set of facts” standard upon which Swierkiewicz at least partially relies.  In light of these concerns, “Swierkiewicz effectively is dead,” (P. 18), and “employment discrimination plaintiffs will effectively need to plead a prima facie case and possibly more to survive a motion to dismiss.”  (P. 35.)

Professor Thomas concludes the article by arguing that the plausibility standard established in Iqbal and Twombly is inappropriate.  Indeed, she finds the change in standards – and the resulting similarity between the motion to dismiss and the motion for summary judgment – to be “inconsistent with the intentions of the rule-makers.”  (P. 38.)  Professor Thomas examines the cost differential between the two motions, and further notes the lower cost of litigating a typical employment dispute when compared to the higher cost of litigation found in a complex antitrust case such as Twombly.  And, she explains that the role of the courts in deciding a motion for summary judgment and a motion to dismiss are decidedly different.  In conclusion, the similarity which the Court has now created between the two motions “call[s] into question whether Iqbal and Twombly were decided properly.”  (P. 41.)

In sum, this article does a superb job of demonstrating how, after Iqbal and Twombly, the motion to dismiss and the motion for summary judgment are now quite similar.  And, this paper explains how this result may prove particularly problematic for employment discrimination plaintiffs – a result which Professor Thomas finds troubling.  As a final note, this article was part of a symposium issue in the Lewis & Clark Law Review on Iqbal and Twombly, and other papers on the topic can be found here.

Cite as: Joseph Seiner, The Motion to Dismiss for Workplace Plaintiffs after Iqbal and Twombly, JOTWELL (November 15, 2010) (reviewing Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark Law Review 15 (2010), at SSRN),

  1. 1
    On November 25, 2010 at 2:51 pm, Reggie said:

    I am a Pro Se Litigant and my complaint is currently facing 12(b)(6) dismissal. I have argued in my opposition motion and sur replies that I have plead in addition to fair notice of the grounds that I seek relief, direct discrimination evidence. I have also showed where the defendants did not even give my complaints to the EEOC and that information exist and the notes surrounding it – so discovery should be granted. Also the Swierkiewicz panel also said that direct evidence can prove discrimination.

    The Second Circuit’s recent decision in Arista Records LLC v. Doe 3, No. 09-0905, 2010 WL 1729107, 2010 U.S. App. LEXIS 8879 (2d Cir. Apr. 29, 2010 confirms that Twombly did not set aside Swierkiewicz at least in the 2nd Circuit.

    The Arista decision says this: First, the notion that Twombly imposed a heightened standard that requires a complaint to include specific evidence, factual allegations in addition to those required by Rule 8, and declarations from the persons who collected the evidence is belied by the Twombly opinion itself. The Court noted that Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to give the defendant fair notice of what the … claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555 (other internal quotation marks omitted); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 512, (2002) (holding that, at the pleading stage, an employment discrimination plaintiff who alleges facts that provide fair notice of his claim need not also allege “specific facts establishing a prima facie case,” for such a “heightened pleading standard … conflicts with Federal Rule of Civil Procedure 8(a)(2)”). The Twombly Court stated that “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” but mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action will not do”; rather, the complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555 (emphasis added), i.e., enough to make the claim “plausible,” id. at 570….

  2. 2
    On January 16, 2011 at 11:01 am, Reggie said:

    Twombly Iqbal figured out.I think I have it all figured out finally. Here is the layman’s explanation and you lawyers can do the heavy lifting. The fatal flaw with Iqbal’s complaint is that he attacked Aschroft’s and Mueller’s state of mind. To say that the Aschroft and Mueller’s intention was discriminatory was too big of a leap and frankly dangerous and or costly. It would have been different if Iqbal came in direct contact with them and they said something or even someone who worked with them said something or even that someone who worked for someone else down the chain said it was policy. Iqbal had none of this. It was correctly dismissed.

    What is also missing from all of these great papers of on Twombly,Iqbal and Swierkierwicz is the notion of disparate impact. Disparate impact. Here is a definition of disparate impact – “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”

    Disparate Impact seems to escape Twombly and Iqbal, why? Because there is some policy and there is some statistical story. You don’t have to look in the mind of someone. Especially not in the mind’s of men who are saving lives of Americans. Though there may have been a bad policy paper lying around.

    So Iqbal may have been successful by claiming disparate impact of those in SHU and maybe saying that Disparate Impact obviously exists but there is possibly some parallel policy at play. Most likely, the disparate impact would have survived given that there may have been a lot of common criminals housed in Shu but who happen to be Muslim or Middle East origin.

    Twombly failed because of the inferences on inferences without having a transactional event and they had no one to say that there was a meeting. If they simply had enough people to say that they think the meeting was at the Hilton, or the Waldorf Astoria, and put enough players there – well you might have had something. It was correctly dismissed because it didn’t speak to the possibility of a real meeting.

    Swierkiewicz survived and complaints like Swierkiewicz survive because all of the actors or within the transactional events. So that’s it – If the actors are within the transactional events you do not have to infer in discriminatory state of mind – The events tell the story until discovery.

    If you are a Plaintiff – you had better create a transactional complaint where all of the actors are closely linked by dates, times, events, conversations are you may suffer a Twiqbal. With my understanding Swierkiewicz is still good law and that’s the reason why. Excuse my short hand, I am pro se facing a 12(b)(6) motion and my writings should be liberally construed :-)