Sandra Connelly v. Lane Construction Corp

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3792
_____________
SANDRA CONNELLY,
Appellant
v.
LANE CONSTRUCTION CORPORATION
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:13-cv-1402)
District Judge: Honorable Terrence F. McVerry
_______________
Argued on September 15, 2015
Before: FISHER, CHAGARES, and JORDAN, Circuit
Judges.
(Filed: January 11, 2016)
_______________
John E. Stember, Esq.
Emily E. Town, Esq. [ARGUED]
Stember Cohn & Davidson-Welling, LLC
425 First Avenue, 7th Floor
The Harley Rose Building
Pittsburgh, PA 15219
Counsel for Appellant
Samantha M. Clancy, Esq. [ARGUED]
Maria Greco Danaher, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
One PPG Place, Suite 1900
Pittsburgh, PA 15222
Counsel for Appellee
Christine J. Back, Esq. [ARGUED]
Equal Employment Opportunity Commission
131 M Street, N.E. – 5th Fl.
Washington, DC 20507
Counsel for Amicus Appellant
_______________
OPINION
_______________
JORDAN, Circuit Judge.
Sandra Connelly appeals the dismissal of the
employment discrimination claims she brought against her
former employer, Lane Construction Corporation (“Lane”).
We disagree with the District Court’s assessment that
Connelly failed to plead plausible claims and, accordingly,
2
will vacate the order of dismissal and remand for further
proceedings.
I. BACKGROUND
A. Factual History1
Lane is a construction company operating in 20 states.
In May 2006, it hired Sandra Connelly as a union truck driver
at its Pittsburgh, Pennsylvania facility, and she worked during
construction seasons – normally from March or April until
October or November of each year – until near the close of
the season in October 2010. During Connelly’s tenure with
the company, Lane employed seven union truck drivers at
that location. Connelly ranked fifth in seniority and was the
only woman. Since October 2010, Lane has employed no
female truck drivers at its Pittsburgh facility.
Sometime after May 2007, and allegedly because
Connelly had ended a romance with a man who also worked
at Lane, her male co-workers began “curs[ing] at Connelly
and belittl[ing] her on a daily basis.” (App. 29.) Some male
drivers refused to speak directly to her. In the summer of
2007, another Lane employee told Connelly that Connelly’s
former boyfriend, truck driver Mark Nogy, was making
“increasingly frequent and disparaging” comments about her.
(App. 29.) The employee went on to say that he had
1
Because the District Court addressed Connelly’s
Amended Complaint upon a motion to dismiss, we recount
the facts as alleged in that pleading and draw all reasonable
inferences in favor of Connelly. Phillips v. Cty. of Allegheny,
515 F.3d 224, 231 (3d Cir. 2008).
3
complained about Nogy’s behavior to Charlie Ames, a Lane
executive. Connelly herself told several supervisors at Lane
about the hostile treatment she was experiencing. She called
the company’s Connecticut headquarters and, a day later,
Ames and another Lane executive met with her to discuss the
harassment problem. Following the meeting, Lane suspended
Nogy for three days but did not discipline or warn any other
Lane employees, who continued to harass and disparage
Connelly.
In early 2009, Connelly learned that Lane employees
could make job-related complaints through the company’s
“Ethics Line,” which she called multiple times to report
further harassment from Nogy, to make complaints about her
male co-workers drinking on the job, and to report
“discriminatory treatment due to her gender and her previous
complaints about the hostile work environment.” (App. 31.)
In or around May 2010, Lane foreman George
Manning made an unwanted physical advance to Connelly,
coming close to her and saying, “[O]ne day I’m going to kiss
you.” (App. 31.) Connelly backed away and said “No,” and
she reported the incident to the Ethics Line a few days later.
(App. 31.) She also reported the incident to supervisor
Jeremy Hostetler, requesting that he transfer her to another
work site because she was now uncomfortable working with
Manning. Hostetler expressed disbelief that Manning would
“do something like that.” (App. 32.) Although Hostetler told
Connelly that he wanted to meet with her and Manning
together, no such meeting occurred. After Connelly again
called the Ethics Line about the situation, Hostetler agreed to
transfer her to another job site, although it appears that
Connelly continued to work from Lane’s Pittsburgh facility.
4
Connelly’s relationship with both her supervisors and her
male co-workers became “increasingly strained” throughout
2010, during which time she made numerous complaints to
the Ethics Line and to local management at the Pittsburgh
facility. (App. 32.)
In October 2010, Lane supervisor Jerry Schmittein
became “incensed” at Connelly when she refused to drive a
truck that had a flat tire and steering problems. (App. 32.)
Schmittein “persisted in berating Connelly,” despite her
explanation that she could not safely operate the truck. (App.
32.) Connelly contacted Ames, who instructed her to leave
the job site. A short time later, and despite her seniority,
Connelly was laid off before the end of the construction
season and before any of the other union truck drivers. Lane
has never recalled her to work.
Lane did, however, recall Connelly’s male truck driver
co-workers in 2011, and it continues to employ them. In
April or May of 2011, after Connelly saw several of her co-
workers working at a job site, she repeatedly telephoned
Ames to ask why she had not been recalled. Ames cited the
bad economy and told her that no work was available. In one
conversation, Ames told her that he would recall her if Lane
“got more work.” (App. 33.)
Connelly had observed that all six of her male truck
driver co-workers were working for Lane, so she called Ames
and asked why union drivers with less seniority than her had
been recalled before she was. In Connelly’s experience,
between 2006 and 2010, Lane had always recalled truck
drivers in order of seniority. Ames told Connelly that the
truck driver with the least seniority had been permitted to
5
return to work as a general laborer because “he needed to
work.” (App. 33.) Lane had not offered any such
accommodation to Connelly. Ames also explained that the
other driver with less seniority than Connelly had been
recalled to operate what was known as the “tack” truck
because Connelly did not have the requisite training to
operate that type of vehicle. (App. 33.) Connelly asked why
the most senior driver, who was the primary tack truck
operator, was no longer driving that truck. Ames answered
that that driver was the “senior man – he can choose what he
drives.” (App. 33.) However, Lane had not previously
permitted truck drivers to choose their work assignment based
on seniority, and the union’s collective bargaining agreement
provided that “[d]rivers in accordance with their
qualifications and seniority shall be offered the highest rate
classification of work but cannot choose their equipment or
work assignments.” (App. 33.) Connelly was qualified to
operate – and routinely had operated – all of the trucks used
by Lane other than the tack truck.
Connelly also observed non-union truck drivers
working at Lane sites in the spring and summer of 2011. In
addition, she saw Lane employing rental trucks from other
companies and using Lane laborers to drive trucks. Prior to
2011, Lane had only resorted to that when no Lane drivers
were available, and never when a Lane driver was waiting to
be recalled.
B. Procedural History
On September 26, 2013, Connelly filed her original
complaint in the United States District Court for the Western
District of Pennsylvania, alleging claims of gender-based
6
disparate treatment, sexual harassment, hostile work
environment, and retaliation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended
(“Title VII”), and the Pennsylvania Human Relations Act, 43
P.S. § 951 et seq. (“PHRA”). Lane responded by filing an
answer along with a motion to partially dismiss the
complaint. The Court dismissed as time-barred all but the
retaliation claim, which related to Lane’s failure to rehire
Connelly in April 2011, but granted Connelly’s request to file
an amended complaint.
Connelly then filed her Amended Complaint, alleging
separate counts of disparate treatment and retaliation under
both Title VII and the PHRA. Lane promptly moved to
dismiss the Amended Complaint under Federal Rule of Civil
Procedure 12(b)(6) and, after briefing, the District Court
granted that motion. The Court held that, with respect to her
disparate treatment claims, Connelly had “failed to plead a
sufficiently plausible inference that she was not rehired due to
her gender.” (App. 12.) Similarly, the Court held that the
Amended Complaint failed to allege sufficient facts to
establish a plausible claim of retaliation. It also denied
Connelly’s request to file a second amended complaint. The
District Court thus dismissed all of Connelly’s claims with
prejudice. She timely appealed.
II. DISCUSSION2
2
The District Court had jurisdiction over the federal
claims under 28 U.S.C. §§ 1331 and 1343, and supplemental
jurisdiction over the related state law claims under 28 U.S.C.
§ 1367. We have appellate jurisdiction over the final decision
of the District Court pursuant to 28 U.S.C. § 1291. We
7
Connelly asserts two claims of error. First, she says
that the District Court erred in holding that her Amended
Complaint failed to meet the plausibility standard set forth in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). Second, she argues
that the District Court should have granted her leave to
further amend the Amended Complaint. Because we agree
with her on the first point, we need not reach the second.3
A. Standards for Pleading Sufficiency
review the District Court’s decision to grant a motion to
dismiss under a plenary standard. Fowler v. UPMC
Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). We are
“required to accept as true all allegations in the complaint and
all reasonable inferences that can be drawn from them after
construing them in the light most favorable to the
nonmovant.” Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d
153, 154 n.1 (3d Cir. 2014) (quotation marks and citations
omitted). However, as more fully described herein, we
disregard legal conclusions and recitals of the elements of a
cause of action supported by mere conclusory statements.
Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.
2010).
3
Connelly only sought a curative amendment if the
District Court decided to dismiss the Amended Complaint
under Rule 12(b)(6). In that event, she asked for leave to
“bolster the factual allegations related to her retaliation and
disparate treatment claims.” (App. 14.) Because we
conclude that Connelly’s pleadings were sufficient to survive
the motion to dismiss, no curative amendment is necessary.
8
A complaint may be dismissed under Rule 12(b)(6) for
“failure to state a claim upon which relief can be granted.”
But detailed pleading is not generally required. The Rules
demand “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
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Iqbal, 556 U.S. at 678
(citation and internal quotation marks omitted). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.; see also
Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d
Cir. 2010). Although the plausibility standard “does not
impose a probability requirement,” Twombly, 550 U.S. at 556,
it does require a pleading to show “more than a sheer
possibility that a defendant has acted unlawfully,” Iqbal, 556
U.S. at 678. A complaint that pleads facts “merely consistent
with a defendant’s liability … stops short of the line between
possibility and plausibility of entitlement to relief.” Id.
(citation and internal quotation marks omitted). The
plausibility determination is “a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.” Id. at 679.
Under the pleading regime established by Twombly
and Iqbal, a court reviewing the sufficiency of a complaint
must take three steps.4 First, it must “tak[e] note of the
4
Although Ashcroft v. Iqbal described the process as a
9
elements [the] plaintiff must plead to state a claim.” Iqbal,
556 U.S. at 675. Second, it should identify allegations that,
“because they are no more than conclusions, are not entitled
to the assumption of truth.” Id. at 679. See also Burtch v.
Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011)
(“Mere restatements of the elements of a claim are not
entitled to the assumption of truth.” (citation and editorial
marks omitted)). Finally, “[w]hen there are well-pleaded
factual allegations, [the] court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679.
B. The Elements Necessary to State a Claim
We thus begin by taking note of the elements Connelly
must plead to state her claims. With respect to her disparate
treatment claim, Title VII makes it an “unlawful employment
practice for an employer … to discriminate against any
individual …, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
See also Desert Palace, Inc. v. Costa, 539 U.S. 90, 92-93
(2003). In 1991, Congress amended Title VII to further
specify that, “[e]xcept as otherwise provided in this
subchapter, an unlawful employment practice is established
when the complaining party demonstrates that race, color,
religion, sex, or national origin was a motivating factor for
“two-pronged approach,” 556 U.S. 662, 679 (2009), the
Supreme Court noted the elements of the pertinent claim
before proceeding with that approach, id. at 675-79. Thus,
we have described the process as a three-step approach.
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d
Cir. 2011) (citing Santiago, 629 F.3d at 130).
10
any employment practice, even though other factors also
motivated the practice.” 42 U.S.C. § 2000e-2(m). In Watson
v. Southeastern Pennsylvania Transportation Authority, we
interpreted that amendment to apply only to the category of
discrimination cases that involve a “mixed-motive.” 207 F.3d
207, 214-20 (3d Cir. 2000). Generally speaking, in a “mixed-
motive” case a plaintiff claims that an employment decision
was based on both legitimate and illegitimate reasons. Such
cases are in contrast to so-called “pretext” cases, in which a
plaintiff claims that an employer’s stated justification for an
employment decision is false.
A Title VII plaintiff may make a claim for
discrimination “under either the pretext theory set forth in
McDonnell Douglas Corp. v. Green[, 411 U.S. 792, (1973)],
or the mixed-motive theory set forth in Price Waterhouse v.
Hopkins[, 490 U.S. 228 (1989)], under which a plaintiff may
show that an employment decision was made based on both
legitimate and illegitimate reasons.”5 Makky v. Chertoff, 541
5
An employee proceeding under the McDonnell
Douglas pretext framework bears the initial burden of
establishing a prima facie case by showing: (1) that she was a
member of a protected class, (2) that she was qualified for the
job, and (3) another person, not in the protected class, was
treated more favorably. See Scheidemantle v. Slippery Rock
Univ. State Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir.
2006). If the employee establishes a prima facie case, the
burden shifts to the employer to establish a legitimate
nondiscriminatory reason for its employment action. Id. If
the employer provides such a reason, the burden shifts back to
the employee to show that the proffered reason was mere
pretext for actual discrimination. Id. Notwithstanding this
11
F.3d 205, 213 (3d Cir. 2008). As we recognized in Watson,
the “pretext” and “mixed-motive” labels can be misleading
because, even in a case that does not qualify for a burden-
shifting instruction under Price Waterhouse, the employer’s
challenged conduct may nevertheless result from two or more
motives, and the plaintiff “need not necessarily show ‘pretext’
but may prevail simply by showing, through direct or
circumstantial evidence, that the challenged action resulted
from discrimination.” 207 F.3d at 214 n.5 (3d Cir. 2000)
(citations omitted). Under either theory of discrimination, the
plaintiff must establish that her protected status was a factor
in the employer’s challenged action. The difference is in the
burden-shifting framework, a plaintiff who produces “direct
evidence” of discrimination may proceed under the mixed-
motive framework of Price Waterhouse v. Hopkins. 490 U.S.
228, 276 (1989) (O’Connor, J., concurring). As we explained
in Armbruster v. Unisys Corp.:
[I]n the Price Waterhouse framework … the
evidence the plaintiff produces is so revealing
of discriminatory animus that it is not necessary
to rely on any presumption from the prima facie
case to shift the burden of production. Both the
burden of production and the risk of non-
persuasion are shifted to the defendant who …
must persuade the factfinder that even if
discrimination was a motivating factor in the
adverse employment decision, it would have
made the same employment decision regardless
of its discriminatory animus.
32 F.3d 768, 778 (3d Cir. 1994).
12
degree of causation that must be shown: in a “mixed-motive”
case, the plaintiff must ultimately prove that her protected
status was a “motivating” factor, whereas in a non-mixed-
motive or “pretext” case, the plaintiff must ultimately prove
that her status was a “determinative” factor. See id. at 214-20
(summarizing the distinction in standards of causation that
apply to “pretext” and “mixed-motive” cases and concluding
that the 1991 amendment to Title VII did not alter that
distinction).
Connelly’s Amended Complaint does not specify
whether she intends to proceed under a “mixed-motive” or a
“pretext” theory, and understandably so. The distinction
between those two types of cases “lies in the kind of proof the
employee produces on the issue of [the employer’s] bias,”
Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1097
(3d Cir. 1995), and identifying the proof before there has
been discovery would seem to put the cart before the horse.
Indeed, we have said that, even at trial, an employee “may
present his case under both theories,” provided that, prior to
instructing the jury, the judge decides whether one or both
theories applies. Id. at 1098 (internal citation omitted); see
also Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 448
(8th Cir. 1993) (stating that “[w]hether a case is a pretext case
or a mixed-motives case is a question for the court once all
the evidence has been received”). Thus, for purposes of
noting the elements Connelly must plead to state a disparate
treatment claim, we take it as given that she may advance
either a mixed-motive or a pretext theory.
The District Court, however, incorrectly evaluated the
Amended Complaint as if Connelly were confined to showing
pretext. Moreover, the Court’s analysis proceeded with a
13
point-by-point consideration of the elements of a prima facie
case required under a pretext theory. It is thus worth
reiterating that, at least for purposes of pleading sufficiency, a
complaint need not establish a prima facie case in order to
survive a motion to dismiss.6 A prima facie case is “an
evidentiary standard, not a pleading requirement,”
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002), and
hence is “not a proper measure of whether a complaint fails to
state a claim.” Fowler v. UPMC Shadyside, 578 F.3d 203,
213 (3d Cir. 2009). As we have previously noted about
pleading in a context such as this,
[a] determination whether a prima facie case
has been made … is an evidentiary inquiry – it
defines the quantum of proof [a] plaintiff must
present to create a rebuttable presumption of
discrimination. Even post-Twombly, it has been
6
In Makky v. Chertoff, we held that the plaintiff could
not avoid dismissal of his mixed-motive discrimination claim
if there was “unchallenged objective evidence” that he did not
possess the “baseline qualifications” to do his job, because
such a plaintiff would inevitably fail to establish a prima facie
case of employment discrimination after the pleading stage.
541 F.3d 205, 215 (3d Cir. 2008). However, our analysis
explicitly assumed the sufficiency of the plaintiff’s pleadings,
id. at 214, and we limited our “necessarily narrow” holding to
those rare mixed-motive cases in which the plaintiff’s lack of
baseline qualifications is “capable of objective determination
before discovery,” as when the job requires consideration of a
license or similar prerequisite, id. at 215. Thus, that opinion
expressly recognized that the prima facie case is a separate
inquiry that generally cannot occur until after discovery.
14
noted that a plaintiff is not required to establish
the elements of a prima facie case … .
Id. at 213 (citation omitted). Instead of requiring a prima
facie case, the post-Twombly pleading standard “‘simply calls
for enough facts to raise a reasonable expectation that
discovery will reveal evidence of’ the necessary element[s].”
Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (quoting Twombly, 550 U.S. at 556).
Should her case progress beyond discovery, Connelly
could ultimately prevail on her disparate treatment claim by
proving that her status as a woman was either a “motivating”
or “determinative” factor in Lane’s adverse employment
action against her. Therefore, at this early stage of the
proceedings, it is enough for Connelly to allege sufficient
facts to raise a reasonable expectation that discovery will
uncover proof of her claims.
For the same reasons, Connelly’s retaliation claim may
survive Lane’s motion to dismiss if she pleads sufficient
factual allegations to raise a reasonable expectation that
discovery will reveal evidence of the following elements: (1)
she engaged in conduct protected by Title VII; (2) the
employer took adverse action against her; and (3) a causal
link exists between her protected conduct and the employer’s
adverse action. Charlton v. Paramus Bd. of Educ., 25 F.3d
194, 201 (3d Cir. 1994).
C. Excluding Conclusory Allegations
At the second step in our pleading analysis, we
identify those allegations that, being merely conclusory, are
15
not entitled to the presumption of truth. Twombly and Iqbal
distinguish between legal conclusions, which are discounted
in the analysis, and allegations of historical fact, which are
assumed to be true even if “unrealistic or nonsensical,”
“chimerical,” or “extravagantly fanciful.” Iqbal, 556 U.S. at
681. Put another way, Twombly and Iqbal expressly declined
to exclude even outlandish allegations from a presumption of
truth except to the extent they resembled a “formulaic
recitation of the elements of a … claim” or other legal
conclusion.7 Id. (internal quotation marks omitted); see also
Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 827 (7th Cir.
2015) (concluding that allegations that were “neither legal
assertions nor conclusory statements reciting the elements of
a cause of action” were “entitled to a presumption of truth”
under Iqbal). Perhaps “some allegations, while not stating
ultimate legal conclusions, are nevertheless so threadbare or
speculative that they fail to cross the line between the
conclusory and the factual,” but the clearest indication that an
allegation is conclusory and unworthy of weight in analyzing
the sufficiency of a complaint is that it embodies a legal
point. Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 595
(1st Cir. 2011) (citation and internal quotation marks
omitted).
7
The Court in Iqbal clarified that it was only the
conclusory nature of certain allegations – that is, their mere
recitation of formulaic legal elements – that rendered them
excludable: “[W]e do not reject these bald allegations on the
ground that they are unrealistic or nonsensical. … It is the
conclusory nature of [the] allegations, rather than their
extravagantly fanciful nature, that disentitles them to the
presumption of truth.” Iqbal, 556 U.S. at 681.
16
Although the District Court considered the Amended
Complaint to be “extremely vague and conclusory,” it did not
specifically identify any allegations that, being mere legal
conclusions, should have been discounted. (App. 10.) In our
plenary review of the motion to dismiss, we consider the
following allegations in the Amended Complaint to be
disentitled to any presumption of truth: (1) that Connelly’s
supervisors at Lane “subjected her to disparate treatment
based on her gender and retaliation for making complaints
about discrimination and sexual harassment” (App. 26); (2)
that Lane, “[b]y subjecting Connelly to discrimination based
on her gender and retaliation,” violated Title VII and the
PHRA (App. 26-27); (3) that Connelly was an “employee” of
Lane “within the meaning of Title VII and the PHRA” (App.
27); (4) that “[a]t all times relevant to this case, [Lane] was an
‘employer’ within the meaning of Title VII and the PHRA”
(App. 27); and (5) that “Connelly has exhausted her federal
and state administrative remedies.” (App. 36). All of these
allegations paraphrase in one way or another the pertinent
statutory language or elements of the claims in question. To
the extent that Connelly’s allegation that she “was sexually
harassed” by Manning states a legal conclusion, that is also
excluded, although her factual allegations describing
Manning’s behavior and her reaction to him, along with her
allegation that his threatened physical contact was
“unwanted,” are accepted as true. (App. 31.)
D. Construing the Historical Facts in the
Plaintiff’s Favor
Even after Twombly and Iqbal, a complaint’s
allegations of historical fact continue to enjoy a highly
favorable standard of review at the motion-to-dismiss stage of
17
proceedings. See Phillips, 515 F.3d at 231 (noting that
Twombly “leaves intact” the pleading standard under which
“detailed factual allegations” are not required). Although a
reviewing court now affirmatively disregards a pleading’s
legal conclusions, it must still – as we have already
emphasized – assume all remaining factual allegations to be
true, construe those truths in the light most favorable to the
plaintiff, and then draw all reasonable inferences from them.
Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1
(3d Cir. 2014); see also Phillips, 515 F.3d at 231 (holding
that Twombly did not “undermine [the] principle” that all
reasonable inferences are to be drawn in favor of the plaintiff,
and reaffirming that “the facts alleged must be taken as true
and a complaint may not be dismissed merely because it
appears unlikely that the plaintiff can prove those facts or will
ultimately prevail on the merits”).
1. The Disparate Treatment Claim
With respect to Connelly’s disparate treatment claim,8
the Amended Complaint set forth sufficient factual
allegations to raise a reasonable expectation that discovery
would reveal evidence that Connelly was a member of a
8
While Connelly advances a disparate treatment claim
under both Title VII and the PHRA, we refer to those claims
in the singular, as they are governed by essentially the same
legal standards. See Goosby v. Johnson & Johnson Med.,
Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000) (“The analysis
required for adjudicating [plaintiff’s discrimination] claim
under PHRA is identical to a Title VII inquiry, and we
therefore do not need to separately address her claim under
the PHRA.”) (internal citation omitted).
18
protected class and that she suffered an adverse employment
action when Lane did not rehire her in 2011. More
specifically, Connelly has alleged that (i) during her tenure at
Lane, she was the only female truck driver at the Pittsburgh
facility; (ii) she was qualified to drive all but one of Lane’s
trucks; (iii) Lane failed to rehire her at the start of the 2011
construction season, despite recalling the six other union
truck-drivers – all male, and two with less union seniority
than Connelly; and (iv) since failing to rehire Connelly, Lane
has employed no other female truck drivers. Once accepted
as true and construed in the light most favorable to the
plaintiff, those allegations raise a reasonable expectation that
discovery will reveal evidence that Connelly’s protected
status as a woman played either a motivating or determinative
factor in Lane’s decision not to rehire her. That is enough for
Connelly’s disparate treatment claim to survive a motion to
dismiss. Cf. Fowler, 578 F.3d at 211-12 (“Although [the]
complaint is not as rich with detail as some might prefer, it
need only set forth sufficient facts to support plausible
claims.”).
Connelly has also alleged that Lane apparently
deviated from its own past hiring norms and work
assignments during the 2011 construction season by
employing rental trucks and allowing a less senior driver to
operate the tack truck. Once accepted as true and construed
in the light most favorable to Connelly, those factual
allegations would also permit the reasonable inference that
Lane’s proffered explanation that it failed to rehire Connelly
for lack of work was pretextual. But, to be clear, at this stage
Connelly is not obliged to choose whether she is proceeding
under a mixed-motive or pretext theory, nor is she required to
establish a prima facie case, much less to engage in the sort of
19
burden-shifting rebuttal that McDonnell Douglas requires at a
later stage in the proceedings. It suffices for her to plead facts
that, construed in her favor, state a claim of discrimination
that is “plausible on its face.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). She has done that.
2. The Retaliation Claim
Turning to the elements of Connelly’s retaliation
claim, the facts alleged in the Amended Complaint, taken as
true, also raise a reasonable expectation that discovery will
reveal evidence both that Connelly engaged in activity
protected by Title VII and that Lane took an adverse
employment action against her.9 To the latter point, Lane
took an adverse employment action against Connelly when it
failed to rehire her at the start of the 2011 construction
season. To the former, Connelly engaged in protected
activity when she filed multiple complaints of sexual
harassment – including and most obviously her May 2010
complaint that Manning, a company foreman, had made
unwanted physical advances toward her.10
9
Again, although Connelly’s retaliation claims are
advanced under both Title VII and the PHRA, we refer to
those claims in the singular because the same framework for
analyzing retaliation claims applies to both. Cf. Krouse v.
Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (“[W]e
analyze ADA retaliation claims under the same framework
we employ for retaliation claims arising under Title VII.”).
10
To be protected from retaliation under Title VII, the
protected activity must relate to employment discrimination
charges brought under that statute, implicating
“discrimination on the basis of race, color, religion, sex, or
20
The District Court held that Connelly’s retaliation
claim came short of plausibility by “fail[ing] to plead a causal
connection between the failure to rehire Connelly in April
2011 and her alleged protected activity.” (App. 13.) In
pertinent part, the District Court concluded that there was “no
temporal proximity (as pled, her last report of sexual
harassment was in May 2010, almost a year prior to the
failure to rehire her), and no pattern of antagonism by Lane
management.” (App. 13.)
Given the seasonal character of Connelly’s work, we
question the District Court’s conclusion about temporal
proximity. Because Lane only hired Connelly during
construction seasons, traditionally laying workers off in
October or November and then rehiring them in March or
April of the following year, it may be that a retaliatory
decision to not rehire her would not become apparent until
after the off-season that ran from October 2010 to March
2011.11
national origin.” Slagle v. Cty. of Clarion, 435 F.3d 262, 268
(3d Cir. 2006). For that reason, we agree with the District
Court that Connelly’s other complaints, to the extent they
implicated only safety issues, were not protected activity for
purposes of her retaliation claim.
11
As we have already stated, no showing of proof is
necessary at this stage of the proceedings, but even if the
record ultimately produced no evidence of temporal
proximity suggestive of retaliation, that would not necessarily
be fatal to Connelly’s claim. See Robinson v. Se. Pa. Transp.
Auth., 982 F.2d 892, 894 (3d Cir. 1993) (“The mere passage
of time is not legally conclusive proof against retaliation.”);
21
In any case, the question of temporal proximity does
not render Connelly’s retaliation claim facially implausible.
Connelly alleged that, after she complained of Manning’s
unwanted advances, and after overcoming another
supervisor’s resistance to her grievance by complaining
Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d
Cir. 1997) (“It is important to emphasize that it is causation,
not temporal proximity itself, that is an element of plaintiff’s
prima facie case, and temporal proximity merely provides an
evidentiary basis from which an inference can be drawn.”).
Where the time between the protected activity
and adverse action is not so close as to be
unusually suggestive of a causal connection
standing alone, courts may look to the
intervening period for demonstrative proof,
such as actual antagonistic conduct or animus
against the employee, or other types of
circumstantial evidence, such as inconsistent
reasons given by the employer for terminating
the employee or the employer’s treatment of
other employees, that give rise to an inference
of causation when considered as a whole.
Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir.
2007) (citations omitted and emphasis added). Even at this
stage, if one accepts as true all of Connelly’s factual
allegations about her union seniority, Lane’s past hiring
practices, the company’s traditional distribution of labor, and
her personal observations of Lane’s 2011 workforce, one
could reasonably draw the inference that Lane gave Connelly
inconsistent and false reasons for declining to rehire her.
22
directly to the Ethics Line, her relationship with both her
supervisors and male co-workers became “increasingly
strained” throughout the year. (App. 32.) Thus, Connelly has
alleged facts that could support a reasonable inference of a
causal connection between her protected activity in May 2010
and the gradual deterioration of her relationship with her
employer until she was laid off in October 2010.
In finding no causal connection between Connelly’s
protected acts and Lane’s failure to rehire her in 2011, the
District Court noted that Lane continued to rehire Connelly
for four consecutive years despite her many complaints, and
even encouraged her to continue calling the Ethics Line.
While we agree that those facts could be viewed as cutting
against Connelly, that is not what the applicable standard of
review allows at this point in the case. We must adhere to the
requirement that all alleged facts be construed in the light
most favorable to the plaintiff, which, if done, permits the
view that gender discrimination was a motivating factor or
determinative factor in the decision not to recall Connelly in
2011. Likewise, the fact that Lane continued to rehire
Connelly for four years despite her complaints about co-
workers, but declined to rehire her at the first such
opportunity after she complained of harassment by a
supervisor, can be construed to support a reasonable inference
of a causal connection between the protected act and the
adverse employment action.
Therefore, even if one believed it “unlikely that the
plaintiff can prove those facts or will ultimately prevail on the
merits,” Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S.
at 563 n.8), it must still be said that Connelly – under a
favorable standard of review – has raised a reasonable
23
inference that discovery will reveal evidence of the elements
necessary to establish her claims.
III. CONCLUSION
Because Connelly has alleged facially plausible claims
sufficient to survive a motion to dismiss, we will vacate the
District Court’s Order dismissing the Amended Complaint
and remand for further proceedings consistent with this
opinion.
24