EEOC v. Concentra Health Ser ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3436
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
CONCENTRA HEALTH SERVICES, INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northen District of Illinois, Eastern Division.
No. 05 C 1109—Wayne R. Andersen, Judge.
____________
ARGUED MAY 25, 2007—DECIDED AUGUST 3, 2007
____________
Before BAUER, CUDAHY and FLAUM, Circuit Judges.
CUDAHY, Circuit Judge. Charles Horn complained to the
Equal Employment Opportunity Commission that his
employer, Concentra Health Services, Inc., fired him
when he reported a sexual affair between his supervisor
and another employee. The EEOC brought an action
against Concentra, arguing that Concentra had violated
the anti-retaliation provision of Title VII of the Civil
Rights Act of 1964. The district court dismissed the
EEOC’s complaint without prejudice, holding that the anti-
retaliation provision did not protect Horn’s report. The
EEOC responded by filing a markedly less detailed
2 No. 06-3436
amended complaint that did not allege the specifics of
Horn’s report. The district court dismissed the amended
complaint with prejudice. The EEOC appeals and we
affirm, holding that the amended complaint failed to
provide Concentra with sufficient notice of the nature of
the EEOC’s claim.
I. Background
In 2003, Charles Horn filed a charge of discrimination
with the Equal Employment Opportunity Commission
(EEOC). In it he alleged that, while working as an Assis-
tant Center Administrator for Concentra Health Services,
Inc. (Concentra) in August 2001, he discovered that his
supervisor and another employee were having a sexual
affair. In April 2002 Horn further learned that the supervi-
sor was giving the employee preferential treatment
because of this relationship. The charge stated that on
April 25, 2002, Horn reported the situation to Concentra’s
brass. Concentra allegedly responded by, among other
things, firing Horn on a pretext.
The EEOC investigated Horn’s charge and sued
Concentra under Title VII of the Civil Rights Act of 1964,
using its power to “bring a civil action against any respon-
dent . . . named in the charge.” 42 U.S.C. § 2000e-5(f)(1).
Its terse complaint alleged that Concentra had retaliated
against Horn because he “opposed [a] practice made an
unlawful employment practice” by Title VII, in violation of
42 U.S.C. § 2000e-3(a). The complaint also laid out the
broad details alleged in Horn’s charge: Horn reported to
Concentra’s Director of Human Resources that “his female
supervisor gave a male subordinate, with whom she was
having an inappropriate sexual relationship, preferential
treatment over similarly situated employees with respect
to his employment,” and Concentra responded by firing
Horn. (Compl. ¶ 7.)
No. 06-3436 3
The district court granted Concentra’s motion to dismiss
the complaint for failure to state a claim upon which relief
can be granted. It reasoned that employees are protected
against retaliation only when they reasonably believe that
the activities they oppose violate Title VII, see Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 269-71 (2001)
(per curiam); Hamner v. St. Vincent Hosp. & Health Care
Ctr., Inc., 224 F.3d 701, 706-07 (7th Cir. 2000), and that
it was clear at the time Horn reported the affair that
favoring a subordinate because of a sexual relationship did
not, without more, violate Title VII, see Preston v. Wis.
Health Fund, 397 F.3d 539, 541 (7th Cir. 2005); Schobert
v. Ill. Dep’t of Transp., 304 F.3d 725, 733 (7th Cir. 2002).
The court concluded that, assuming Horn had believed
that the affair violated Title VII, his belief was not reason-
able, and that the EEOC’s complaint therefore did not
state a claim of illegal retaliation. EEOC v. Concentra
Health Servs., Inc., No. 05 C 1109, 2005 WL 2989904, *2
(N.D. Ill. Nov. 3, 2005).
The dismissal was without prejudice and rather than
stand on its complaint and challenge the district court’s
interpretation of Title VII, the EEOC chose to file an
amended complaint that is the subject of this appeal. It
differs from the original in only one respect: the sev-
enth paragraph, which sets forth the EEOC’s claim, is
conspicuously less detailed and specific.
Since at least 2001, Defendant has engaged in unlaw-
ful employment practices at its Elk Grove location, in
violation of Section 704(a) of Title VII, 42 U.S.C.
§ 2000e-3(a). Such unlawful employment practices
include, but are not limited to, retaliating against
Horn after he opposed conduct in the workplace that
he objectively and reasonably believed in good faith
violated Title VII by reporting the conduct to
Concentra’s Director of Human Resources. Concentra’s
4 No. 06-3436
retaliation includes, but is not limited to, issuing Horn
unwarranted negative evaluations and terminating
him.
(Am. Compl. ¶ 7.) Thus, the amended complaint does not
specify the nature of the conduct Horn reported to the
Human Resources Director other than to indicate that
Horn reasonably believed that it violated Title VII.
Concentra again moved to dismiss. The district court,
noting that the “amended complaint is even more vague
than the original,” EEOC v. Concentra Health Servs., Inc.,
No. 05 C 1109, 2006 WL 2024240, *1 (N.D. Ill. July 12,
2006), granted the motion with prejudice, offering two
alternative and radically different (indeed logically
inconsistent) bases for its decision. First, it concluded that
the complaint did not provide sufficient notice of the
nature of the EEOC’s claim “because it offers only a
conclusory allegation rather than offering any facts to
support the claim,” and more specifically because it does
not “specify what conduct Horn believed to violate Title
VII.” Id. at *2. Second, it concluded that Horn’s EEOC
charge is “central to [the EEOC’s] claim” (in that a charge
is a statutory prerequisite to the EEOC’s suit) and conse-
quently should be considered part of the complaint, even
though it was not physically attached to the complaint. Id.
at *3. The court reasoned that because the amended
complaint refers to the charge, the EEOC must adopt all
of the charge’s allegations and plead itself out of court
again. Id. at *4-7. The EEOC now appeals.
II. Discussion
Rule 12(b)(6) permits a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted.
To state such a claim, the complaint need only contain a
“short and plain statement of the claim showing that the
No. 06-3436 5
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
Supreme Court has interpreted that language to impose
two easy-to-clear hurdles. First, the complaint must
describe the claim in sufficient detail to give the defendant
“fair notice of what the . . . claim is and the grounds upon
which it rests.” Bell Atlantic Corp. v. Twombly, 127 S. Ct.
1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)) (alteration in Bell Atlantic). Second, its al-
legations must plausibly suggest that the defendant has
a right to relief, raising that possibility above a “specula-
tive level”; if they do not, the plaintiff pleads itself out of
court. Bell Atlantic, 127 S. Ct. at 1965, 1973 n.14. Con-
centra argues in the alternative that the EEOC’s com-
plaint has failed to meet either of these requirements;
we discuss the latter first.
A. Did the EEOC Plead Itself Out of Court?
One reason Concentra offers for affirming the dismissal
of the EEOC’s amended complaint is that the EEOC has
pleaded itself out of court by alleging that Horn reported
his supervisor’s favoritism to a lover. This argument
reflects a fond nostalgia for the EEOC’s original complaint,
which alleged those facts and was dismissed because the
allegations neither constituted a violation of Title VII nor
“suggest[ed]” such a violation. EEOC v. Concentra Health
Servs., Inc., 2005 WL 2024240, *5 (N.D. Ill. July 12, 2006).
That original dismissal was probably correct. True, while
the original complaint stressed the rejected “favoring a
paramour” theory, it did not logically foreclose the possibil-
ity that some other aspect of Horn’s report might have
furnished a ground for relief. Perhaps, as Concentra now
suggests, the reported affair was not consensual but
rather the result of quid-pro-quo sexual harassment. Some
of our cases suggest that such a possibility is enough to
avoid dismissal. See, e.g., Kolupa v. Roselle Park Dist., 438
6 No. 06-3436
F.3d 713, 715 (7th Cir. 2006) (stating that dismissal is
proper only “when it would be necessary to contradict the
complaint in order to prevail on the merits”).
Those cases, however, are no longer valid in light of the
Supreme Court’s recent rejection of the famous remark in
Conley v. Gibson from which they derive, 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.” Bell Atlantic, 127 S. Ct. at 1968 (quoting Conley v.
Gibson, 355 U.S. at 45-46). As the Bell Atlantic Court
explained, it is not enough for a complaint to avoid
foreclosing possible bases for relief; it must actually
suggest that the plaintiff has a right to relief, id. at 1968-
69, by providing allegations that “raise a right to relief
above the speculative level,” id. at 1965. Horn’s report of
a sexual affair is logically consistent with the possibility
that the affair was caused by quid-pro-quo sexual harass-
ment, but it does not suggest that possibility any more
than money changing hands suggests robbery. Dismissal
was probably correct.
But enough of this trip down memory lane; why are
allegations contained in the original complaint relevant to
this appeal? The original complaint was dismissed and the
EEOC does not seek to resurrect it. The amended com-
plaint does not contain the specifics of Horn’s report,
which the EEOC undoubtedly excluded precisely to avoid
pleading itself out of court. Concentra does not contend
that the bare allegations of the amended complaint’s
seventh paragraph fail to plausibly suggest a right to
relief.1 Neither does it argue that the EEOC is still bound
1
Concentra probably avoids this contention with good reason.
That Concentra might retaliate against Horn for a report
(continued...)
No. 06-3436 7
by the allegations of its original complaint, which it is not.
188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 736 (7th Cir.
2002); Nisbet v. Van Tuyl, 224 F.2d 66, 71 (7th Cir. 1958).
Concentra does argue that the EEOC is bound by Horn’s
EEOC charge. The EEOC did not attach the charge to its
complaint, which would have made the charge part of the
pleadings under Fed. R. Civ. P. 10(c), but Concentra relies
on a “narrow exception” to Rule 10(c) holding that “docu-
ments attached to a motion to dismiss are considered part
of the pleadings if they are referred to in the plaintiff ’s
complaint and are central to his claim.” Cont’l Cas. Co. v.
Am. Nat’l Ins. Co., 417 F.3d 727, 731 n.3 (7th Cir. 2005);
188 LLC, 300 F.3d at 735. The amended complaint
refers to the charge because it satisfies a statutory prereq-
uisite to the EEOC’s suit, since the EEOC can sue only a
1
(...continued)
protected by Title VII seems no less plausible than that a prison
doctor might improperly withhold desperately needed medica-
tion, see Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per
curiam), or that a driver might negligently strike a pedestrian,
see Fed. R. Civ. P. Form 9; see also Fed. R. Civ. P. 44 (stating that
the forms “are sufficient under the rules”). Bell Atlantic itself
does not appear to suggest that the bare idea of an antitrust
conspiracy among major telephone companies like the one
alleged in that case is implausible; rather, it appears to hold that
the plaintiffs pleaded themselves out of court with detailed
“allegations of parallel conduct” that did not plausibly suggest
such a conspiracy. Bell Atlantic, 127 S. Ct. at 1963, 1966. The
Court did not decide whether the complaint would have been
dismissed “had [it] not explained that the claim of agreement
rested on the parallel conduct described.” Id. at 1970 n.10. The
Court suggested that it might have been dismissed, but be-
cause it “would [not] have given the notice required by Rule 8,”
not because its allegations would have been implausible. Id.; see
also id. at 1966 & n.5 (stressing that adequate notice and
plausibility are two distinct, parallel requirements ).
8 No. 06-3436
“respondent . . . named in [a] charge,” 42 U.S.C. § 2000e-
5(f)(1), and Concentra contends that the charge is “central”
to the EEOC’s claim for that same reason. Because the
charge contains allegations similar to those of the orig-
inal complaint, Concentra concludes, the EEOC has
foolishly pleaded itself out of court again, despite its
plain desire to avoid doing just that.
Concentra’s argument does not work because while the
defendant the EEOC sues must be named as a respondent
in a charge, the facts it seeks to prove need not be listed
there. The charge triggers the investigation, but “if the
investigation turns up additional violations, the [EEOC]
can add them to its suit”; there is no need for the EEOC’s
complaint to be “closely related to the charge.” EEOC v.
Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir. 2005). Given
that flexibility, the charge need not be “central” to the
complaint, and consequently need not be considered part
of it. See Levenstein v. Slafsky, 164 F.3d 345, 347 (7th Cir.
1998) (“[T]his is a narrow exception aimed at cases inter-
preting, for example, a contract. It is not intended to
grant litigants license to ignore the distinction between
motions to dismiss and motions for summary judgment.”).
Moreover, even if the EEOC had attached the charge to
its amended complaint, it would have adopted its allega-
tions only if it relied on the charge to form the basis of its
claims. Carol v. Yates, 362 F.3d 984, 986 (7th Cir. 2004);
N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend,
163 F.3d 449, 455-56 (7th Cir. 1998). Plaintiffs often attach
documents to complaints for other reasons entirely. For
instance, a plaintiff challenging an administrative action
might attach a copy of the administrator’s decision to its
complaint in order to illustrate the action it attacks, but it
would not by doing so adopt all of the administrator’s
assertions as its own (indeed, quite the contrary). Carol,
362 F.3d at 986. In the present case, the EEOC similarly
referred to Horn’s charge not to catalogue the facts it
No. 06-3436 9
hoped to prove at trial, but only to show that “[a]ll condi-
tions precedent to the institution of this lawsuit have been
fulfilled,” in other words, that a charge naming Concentra
as respondent had been filed. (Am. Compl. ¶ 6.) The
EEOC’s considerate decision to include this fact in its
complaint did not compel it to adopt the charge’s state-
ments as its own and thereby plead itself out of court.
B. Did the EEOC Provide Fair Notice of Its
Claims?
This leaves the second ground on which Concentra urges
us to affirm the dismissal of the complaint: that it fails to
specify the conduct that Horn reported to the Director of
Human Resources (except, of course, to say that Horn
reasonably believed it violated Title VII). Rule 8(a)(2)’s
“short and plain statement of the claim” must contain a
minimal level of factual detail, although that level is
indeed very minimal. See Bell Atlantic, 127 S. Ct. 1964-65
& n.3 (2007). The classic verbal formula is that a com-
plaint need only be sufficiently detailed to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Id. at 1964 (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in Bell
Atlantic); Cler v. Ill. Educ. Ass’n, 423 F.3d 726, 729 (7th
Cir. 2005).2 This formula captures a mood of liberal
pleading that is enough to settle the sufficiency of most
federal complaints, but “it isn’t anything that we can use
with any precision.” Charles E. Clark, Pleading Under the
2
We have sometimes used other formulas, stating, for instance,
that complaints must give defendants “a reasonable opportunity
to form an answer,” Pratt v. Tarr, 464 F.3d 730, 732 (7th Cir.
2006), and enable defendants to “begin to prepare their defense,”
id. at 733.
10 No. 06-3436
Federal Rules, 12 Wyo. L.J. 177, 181 (1957-1958).3 “[T]o
determine exactly what is ‘enough’ ” in a rare close case, a
court must attend closely to the purpose of the federal
pleading rules and the guidance offered by prior decisions.
McCormick v. City of Chicago, 230 F.3d 319, 323-26 (7th
Cir. 2000).
As the EEOC asserts, “[t]he intent of the liberal notice
pleading system is to ensure that claims are determined
on their merits rather than through missteps in pleading.”
2 James W. Moore, et al., Moore’s Federal Practice § 8.04
(3d ed. 2006); see also Swierkiewicz v. Sorema N.A., 534
U.S. 506, 514 (2002); Connor v. Ill. Dep’t of Natural Res.,
413 F.3d 675, 679 (7th Cir. 2005). Requiring a plaintiff to
plead detailed facts interferes with that goal in multiple
ways. First, and most importantly, the number of factual
details potentially relevant to any case is astronomical,
and requiring a plaintiff to plead facts that are not obvi-
ously important and easy to catalogue would result in
“needless controversies” about what is required that could
serve only to delay or prevent trial. Charles E. Clark,
3
Requiring an opportunity to form an answer or to begin to
prepare a defense might sound more like an easy-to-apply
yardstick until one realizes that neither standard can be taken
literally. Rule 8(b) would permit any defendant to answer even
the most vacuous and vague complaints truthfully and without
prejudice to its defense by answering that it is “without knowl-
edge or information sufficient to form a belief as to the truth of
[its] averments,” rendering Rule 8(a)(2) empty. Similarly, a
defendant can always begin to investigate and prepare a defense
by serving a contention interrogatory on the plaintiff in discov-
ery. Pratt v. Tarr, 464 F.3d 730, 733 (7th Cir. 2006); Ryan v.
Mary Immaculate Queen Ctr., 188 F.3d 857, 860 (7th Cir. 1999).
What our cases require, however, is that a defendant know
some quantum of information about the plaintiff ’s claim before
discovery starts. The question that must be resolved in close
cases is how much information is required.
No. 06-3436 11
Special Pleading in the “Big Case,” 21 F.R.D. 45, 53 (1957);
see also Luckett v. Rent-A-Center, Inc., 53 F.3d 871, 873
(7th Cir. 1995) (warning that “the pleading stage is not the
occasion for technicalities”). Most details are more effi-
ciently learned through the flexible discovery process.
Swierkewicz, 534 U.S. at 512-13; Walker v. Benjamin, 293
F.3d 1030, 1039 (7th Cir. 2002). “Instead of lavishing
attention on the complaint until the plaintiff gets it just
right, a district court should keep the case moving.”
Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998); see
also Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir.
1944) (describing the attempts to force all facts into the
complaint as “judicial haste which in the long run
makes waste”). Second, a plaintiff might sometimes have
a right to relief without knowing every factual detail
supporting its right; requiring the plaintiff to plead those
unknown details before discovery would improperly deny
the plaintiff the opportunity to prove its claim. Am.
Nurses’ Ass’n v. State of Illinois, 783 F.2d 716, 723 (7th
Cir. 1986); Haroco, Inc. v. Am. Nat’l Bank & Trust Co. of
Chicago, 747 F.2d 384, 404 (7th Cir. 1984), aff ’d, 473 U.S.
606 (1985).
But a pleading standard designed to protect litigants
and their lawyers from needless, counterproductive
technicality is less convincingly invoked by a government
agency seeking to simply step around a more informative
complaint that has been dismissed for failure to state a
claim. The rules do not require unnecessary detail, but
neither do they promote vagueness or reward deliberate
obfuscation. Judge Charles Clark, the reporter of the
committee that drafted Rule 8, once described the need
for common sense in pleading standards, asking rhetori-
cally why the federal rules did not eliminate pleadings
entirely:
Why not go to the other extreme and say, “I want you
to answer in a tort action,” or something like that?
12 No. 06-3436
Well, I think the answer is quite simply that we want
to get what we can easily get that will be helpful. We
want the lawyers to “do what comes naturally.” . . .
[W]hat serves as a good form of communication among
lawyers is desirable here.
Charles E. Clark, Pleading Under the Federal Rules, 12
Wyo. L.J. 177, 183 (1957-1958). Encouraging a plaintiff to
plead what few facts can be easily provided and will
clearly be helpful serves to expedite resolution by quickly
alerting the defendant to basic, critical factual allegations
(that is, by providing “fair notice” of the plaintiff ’s claim)
and, if appropriate, permitting a quick test of the legal
sufficiency of those allegations. Connor, 413 F.3d at 679;
Ryan v. Mary Immaculate Queen Ctr., 188 F.3d 857, 860
(7th Cir. 1999).
In the present case the EEOC’s lawyers failed to per-
suade the district court that the facts it originally pleaded
stated a claim, so it deleted enough information to disguise
the nature of its claim before the court. This gambit is
not necessarily fatal to a claimant, but such obfuscation
certainly does not intuitively comport with the purposes of
notice pleading. A complaint should contain information
that one can provide and that is clearly important; the
EEOC has removed information that it did provide and
that showed that its prior allegations did not state a claim.
The one redeeming possibility is that the original com-
plaint contained detail that was not easily provided or
obviously helpful. In general that is not an unlikely
possibility; federal complaints are more often than not
prolix far beyond anything Rule 8 requires. Jackson v.
Marion County, 66 F.3d 151, 154 (7th Cir. 1995); Am.
Nurses’ Ass’n, 783 F.2d at 723-24. But in the present case
the EEOC’s original complaint was a model of economy.
The claim itself was set forth in less than a page and the
critical details were contained in a single eight-line
No. 06-3436 13
paragraph, the very paragraph targeted for excision in the
amended complaint. There was no fat to trim. The EEOC
should have been seriously concerned that its amended
complaint sliced away the very meat of its claim.
Precedent confirms that a plaintiff like the EEOC
alleging illegal retaliation on account of protected conduct
must provide some specific description of that conduct
beyond the mere fact that it is protected. Kyle v. Morton
High Sch., 144 F.3d 448, 454 (7th Cir. 1998). In Kyle, a
public schoolteacher alleged that he was fired because of
his otherwise unspecified “political and advocacy or
perceived political and advocacy activities.” The district
court dismissed and we affirmed, holding that “the com-
plaint for a First Amendment violation must at least put
the defendants on notice that some specific speech or
conduct by the plaintiff led to the termination.” Id. at 454.
Providing such detail was “not a particularly cumbersome
assignment,” id. at 454, and the information was of
obvious critical importance to Kyle’s case. It might turn
out that the speech Kyle thought was protected by the
First Amendment was in fact not, a possibility that could
be quickly tested if Kyle were to specify the speech in
greater detail. Id. at 455. Kyle’s reticence also frustrated
“the defendants’ ability to even investigate [his] claim . . .
. For example, the Morton School Board cannot ask its
board members if they were aware of the speech, conduct
or political association engaged in by Kyle—because none
is alleged.” Id. at 455.
Like the Kyle complaint, the EEOC’s amended complaint
fails to provide the notice required by Rule 8(a)(2); it
must further specify the “conduct in the workplace” that
Horn reported. This is, if anything, a less “cumbersome
requirement” than Kyle faced; surely Horn must remember
in some detail what he said to the Human Resources
Director and must have relayed that information to the
14 No. 06-3436
EEOC during its investigation. (Of course, as the EEOC
cagily observed at oral argument, there is nothing in the
complaint itself to indicate the full extent of what Horn
told it, but the EEOC cannot avoid a requirement to
provide limited detail simply by failing to provide it and
suggesting—not even asserting!—that it cannot do so.)
Further, although the EEOC’s amended complaint may
not be quite as vague as the Kyle complaint (it alleges the
title of the Concentra official to whom Horn reported the
Title VII violation, which at least gives Concentra a place
to start investigating what Horn might have said), addi-
tional details of Horn’s actions are critically important to
the case and might facilitate a quick resolution on the
merits. Just as Kyle might have misconstrued the scope of
First Amendment protection, so the EEOC and Horn may
have misconstrued the scope of Title VII. See, e.g., Hamner
v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701,
704-07 (7th Cir. 2000) (describing a plaintiff that mistak-
enly thought Title VII prohibited discrimination on
account of sexual orientation). Even a description in very
general terms (“Horn complained that Concentra denied
employees promotions because of their race,” “Horn
complained that Concentra supervisors were subjecting
female employees to a hostile work environment,” or some
similar phrase) would give Concentra a much clearer
idea of the EEOC’s claim.
We have stated that a plaintiff alleging employment
discrimination on the basis of race, sex or some other
factor governed by 42 U.S.C. § 2000e-2 may allege the
defendant’s intent quite generally: “ ‘I was turned down for
a job because of my race’ is all a complaint has to say.”
Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998); see
also Kolupa v. Roselle Park Dist., 438 F.3d 713, 714 (7th
Cir. 2006) (holding that a religious discrimination plaintiff
need only say that the employer “h[eld] the worker’s
religion against him”). The EEOC argues that its present
No. 06-3436 15
complaint is just as informative as these. But we are
unaware of any court that has approved a retaliation
complaint as stripped-down as the EEOC’s; one court has
merely suggested, in dicta, that it might. See Rochon v.
Gonzales, 438 F.3d 1211, 1200 (D.C. Cir. 2006) (suggesting
that a Title VII retaliation plaintiff need only allege that
the defendant “retaliated against me because I engaged in
protected activity”). It is rarely proper to draw analogies
between complaints alleging different sorts of claims; the
type of facts that must be alleged depend upon the legal
contours of the claim. Pratt v. Tarr, 464 F.3d 730, 732 (7th
Cir. 2006); Charles E. Clark, The Complaint in Code
Pleading, 35 Yale L.J. 259, 265 (1926). See also Marshall
v. Knight, 445 F.3d 965, 968 (7th Cir. 2006) (“The require-
ment that prisoners making access-to-courts claims allege
specific prejudice should not be understood as an onerous
fact-pleading burden; it is simply a requirement that a
prisoner’s complaint spell out, in minimal detail, the
connection between the alleged denial of access to legal
materials and an inability to pursue a legitimate challenge
to a conviction.”); Loubser v. Thacker, 440 F.3d 439, 442-43
(7th Cir. 2006) (“Although conspiracy is not something that
Rule 9(b) . . . requires be proved with particularity . . . it
differs from other claims in having a degree of vagueness
that makes a bare claim of ‘conspiracy’ wholly uninforma-
tive to the defendant.”).
The simple allegation of racial discrimination described
in Bennett is factually richer than the empty assertion of
Title VII retaliation here. People have reasonably clear
ideas of how a racially biased person might behave, and a
defendant responding to an allegation of racial bias can
anticipate the sort of evidence that may be brought to
bear and can investigate the claim (by inquiring if any
decision-making employees have a background of making
racially insensitive comments and the like). An allegation
of retaliation for some unspecified act does not narrow the
16 No. 06-3436
realm of possibility nearly as much. Further, once a
plaintiff alleging illegal discrimination has clarified that
it is on the basis of her race, there is no further informa-
tion that is both easy to provide and of clear critical
importance to the claim. Requiring a more detailed
complaint in Bennett would have replicated the inefficient
chase for facts decried in Bennett and Dioguardi.
But to require a more detailed complaint in the present
case is neither to adopt fact pleading nor to impose the
heightened pleading required in some instances by Rule
9(b); it is only to insist upon easily provided, clearly
important facts. The proper analogue for the present
complaint is not a complaint alleging racial discrimination
in hiring; it is a complaint in which the plaintiff withholds
the basis upon which she suspects her employer acted:
“I was turned down for a job for a reason forbidden by Title
VII.” To permit the EEOC’s complaint would reward
obfuscation, a perverse result.
Failure to provide fair notice should not normally
warrant a dismissal with prejudice. See Redfield v. Cont’l
Cas. Corp., 818 F.2d 596, 609-10 (7th Cir. 1987). Rule
8(a)(2) does not seek detail that a plaintiff cannot provide,
so a plaintiff should be able to re-plead successfully. But
the EEOC has not argued that the district court should
have permitted a second amended complaint,4 so we need
4
We have no way of knowing why the EEOC did not request
further repleading, but one cannot help wondering whether the
EEOC has any theory on which it hopes to succeed at trial other
than the rejected “favoring the paramour” claim. The EEOC has
done nothing to explain why, if it has reason to believe there
were other bases for retaliation, it left those bases out of its
original complaint. Under these circumstances, one can under-
stand why Concentra angrily accuses the EEOC of “hid[ing] the
ball” and playing a “shell game.” (Br. of Def.-Appellee at 6.) If the
(continued...)
No. 06-3436 17
not address that issue. We need only affirm.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
4
(...continued)
EEOC is indeed playing such a game, it should be glad that
its appeal has failed: discovery might have revealed evidence
showing that it merited sanctions for filing a pleading intended
“to harass or to cause unnecessary delay or needless increase
in the cost of litigation.” Fed. R. Civ. P. 11(b)(1); see also Pepper
v. Vill. of Oak Park, 430 F.3d 805, 812 (7th Cir. 2005) (stressing
that pleadings serve “to provide notice, not to prolong a losing
case beyond its natural life”).
At oral argument the EEOC did request permission to replead
in the event that the applicable pleading standards had been
changed by the Supreme Court’s recent decision in Bell Atlantic
Corp. v. Twombly, 127 S. Ct. 1955 (2007). Even assuming that
Bell Atlantic changed the level of detail required by notice
pleading, which seems doubtful, see supra note 1; see also
Ridge at Red Hawk, L.L.C. v. Schneider, ___ F.3d ___, ___, No.
06-4162, 2007 WL 1969681, *3-4 (10th Cir. July 9, 2007); Roth v.
Jennings, ___ F.3d ___, ___, No. 06-0784-CV, 2007 WL 1629889,
*13, 18 (2d Cir. June 6, 2007); but see Iqbal v. Hasty, ___
F.3d ___, ___, 2007 WL 1717803, *8-*11 (2d Cir. June 14, 2007)
(noting that Bell Atlantic created “[c]onsiderable uncertainty
concerning the standard for assessing the adequacy of pleadings”
and analyzing “conflicting signals” in the Court’s opinion), we
hold that the amended complaint failed to provide adequate
notice under precedents that long preceded Bell Atlantic, so the
requested relief is unnecessary.
18 No. 06-3436
FLAUM, Circuit Judge, concurring. I join the majority’s
final conclusions that the EEOC’s complaint does not
meet the notice pleading standards of Rule 8(a) of the
Federal Rules of Civil Procedure and that the EEOC did
not plead itself out of court by referring to the charge in
its complaint. I respectfully disagree, however, that the
complaint was insufficient under our pre-Bell Atlantic case
law.1
In my judgment, the EEOC’s complaint—which alleged
that Concentra retaliated against Horn because he re-
ported a colorable Title VII violation—was sufficient before
Bell Atlantic, as I find it difficult to distinguish from other
equally sparse pleadings that this Court previously
approved. See Kolupa v. Roselle Park Dist., 438 F.3d 713,
714 (7th Cir. 2006) (noting that a complaint would satisfy
Rule 8(a) if it alleged that an “employer . . . caused some
concrete injury by holding the worker’s religion against
him”); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir.
1998) (noting that a complaint would satisfy Rule 8(a) if
it alleged “I was turned down for a job because of my
race”). Moreover, other circuits have approved complaints
that, for all practical purposes, are the same as the one in
this case. See Rochon v. Gonzales, 438 F.3d 1211, 1220
(D.C. Cir. 2006) (stating that a complaint in a retaliation
case need only say, “[T]he Government retaliated against
me because I engaged in protected activity.”); Thomas v.
Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006) (“[T]o
plead a retaliation claim under the First Amendment, a
1
I also disagree with the majority’s suggestion that Bell Atlantic
dismissed the plaintiffs’ suit because they pled too much detail.
See slip op. at n.1. Rather, it appears that the Court dismissed
the plaintiffs’ complaint because it did not plead enough. See Bell
Atlantic, 127 S. Ct. at 1964-69 (“Because the plaintiffs here
have not nudged their claims across the line from conceivable
to plausible, their complaint must be dismissed.”).
No. 06-3436 19
plaintiff must allege: (1) constitutionally protected con-
duct, (2) retaliatory action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights,
and (3) a causal link between the constitutionally pro-
tected conduct and the retaliatory action.”).2
Although I conclude that the EEOC’s complaint would
have been sufficient under this and other circuits’ pre-Bell
Atlantic case law, I am unable to share the majority’s view
that Bell Atlantic left our notice pleading jurisprudence
intact. Indeed, as I read Bell Atlantic, the Supreme Court
in interpreting Rule 8(a) required that a plaintiff plead
enough facts to demonstrate a plausible claim. Bell
Atlantic, 127 S. Ct. at 1995 (“Factual allegations must be
enough to raise a right to relief above the speculative
level.”). Cf. Kolupa, 438 F.3d at 715 (stating that “com-
plaints need not plead facts”). Because in my view the
EEOC’s complaint did not meet that threshold, I concur
in the majority’s decision to affirm the district court’s
dismissal.
2
In Kyle v. Morton High School, 144 F.3d 448, 454 (7th Cir.
1998), the pre-Bell Atlantic decision which the majority opin-
ion cites approvingly, this Court held that the plaintiff ’s com-
plaint did not give the defendant notice of his claim because it
did not allege that the plaintiff engaged in protected speech and
pled only legal conclusions without providing any supporting
facts. However, in McCormick v. City of Chicago, 230 F.3d 319,
324-25 (7th Cir. 2000), this Court separated itself from the
position that a plaintiff cannot state a claim by reciting mere
legal conclusions. As a result, the Kyle approach was limited,
at least to the extent that it required a plaintiff alleging retalia-
tion to provide details about his protected speech.
20 No. 06-3436
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-3-07