Khalik v. United Air Lines

Decision Date06 February 2012
Docket NumberNo. 11–1063.,11–1063.
Citation18 Wage & Hour Cas.2d (BNA) 1225,114 Fair Empl.Prac.Cas. (BNA) 500,671 F.3d 1188
PartiesFedwa KHALIK, Plaintiff–Appellant, v. UNITED AIR LINES, Defendant–Appellee.
CourtU.S. Court of Appeals — Tenth Circuit


John R. Olsen of Olsen & Brown, LLC, Niwot, CO, for Appellant.

Judith A. Biggs of Holland & Hart LLP, Boulder, CO (Emily Hobbs–Wright and Steven T. Collis of Holland & Hart LLP, Denver, CO, with her on the brief), for Appellee.

Before BRISCOE, Chief Judge, McKAY, and O'BRIEN, Circuit Judges.

McKAY, Circuit Judge.

This is an employment-discrimination case the district court dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Plaintiff Fedwa Khalik appeals the dismissal, and we affirm.

Plaintiff is an Arab–American, born in Kuwait, who practices Islam. Defendant United Air Lines hired her in 1995, and she rose to the position of Business Services Representative before Defendant terminated her position in 2009. Plaintiff's complaint asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, for retaliation and discrimination because of race, religion, national origin, and ethnic heritage.1 Plaintiff's complaint also brings a retaliation claim under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Plaintiff also alleged state law claims for discrimination, retaliation, breach of contract, promissory estoppel, and wrongful termination in violation of Colorado public policy.

Since this case turns on the sufficiency of the facts set forth in the complaint, we will now set forth those alleged facts. Plaintiff “was born in Kuwait and is an Arab–American. Both of her parents are Palestinian.” (Appellant's App. at 7.) Plaintiff's religion is Islam.” ( Id. at 8.) Defendant first employed Plaintiff in 1995, and [s]he performed her job well at all times.” ( Id.) She rose to the job title of Business Services Representative.” ( Id.) She was physically assaulted in the office (grabbed by the arm) after being subjected to a false investigation and false criticism of her work. She was targeted because of her race, religion, national origin, and ethnic heritage.” ( Id.) Plaintiff complained internally about both discrimination at United Air Lines and being denied FMLA leave.” ( Id.) She complained about an email sent by a United Air Lines employee discussing a possible sexual liaison with an underage girl (which constituted a threat of criminal violation endangering the public).” ( Id.) Defendant's “reasons given for plaintiff's termination and other mistreatment as described herein were exaggerated and false, giving rise to a presumption of discrimination, retaliation and wrongful termination.” ( Id. at 9.)

More than two months after Defendant filed its motion to dismiss and three weeks after the deadline to amend pleadings had passed, Plaintiff sought to amend her complaint by adding the following sentence: “The above-stated actions against plaintiff were taken because of plaintiff's race, religion, national origin, ethnic heritage and in retaliation for reporting discrimination, seeking an FMLA leave, and reporting a criminal act by a United Air Lines employee that endangered the public.” ( Id. at 89.) The district court denied Plaintiff's motion to amend as futile and untimely and granted Defendant's motion to dismiss the federal claims for failure to state a claim. The district court also exercised pendent jurisdiction and dismissed the state law discrimination and retaliation claims as similarly not plausible. Plaintiff confessed Defendant's motion to dismiss the breach of contract and promissory estoppel claims, and therefore the district court exercised pendent jurisdiction and dismissed them with prejudice. The district court declined to exercise jurisdiction over Plaintiff's remaining claim for violation of Colorado public policy, and therefore dismissed it without prejudice for lack of subject matter jurisdiction. This appeal followed. On appeal, Plaintiff challenges only the Rule 12(b)(6) dismissal of her discrimination, retaliation, and FMLA claims.


We review a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6) de novo. Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.2007). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Recently, the Supreme Court clarified this pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009): to withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as true, “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A plaintiff must “nudge [his] claims across the line from conceivable to plausible” in order to survive a motion to dismiss. Id.

The Court explained two principles underlying the new standard: (1) when legal conclusions are involved in the complaint “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions,” Iqbal, 129 S.Ct. at 1949, and (2) “only a complaint that states a plausible claim for relief survives a motion to dismiss,” id. at 1950. Thus, mere “labels and conclusions” and “a formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Accordingly, in examining a complaint under Rule 12(b)(6), we will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.

There is disagreement as to whether this new standard requires minimal change or whether it in fact requires a significantly heightened fact-pleading standard.2 Compare In re Travel Agent Comm'n Antitrust Litig., 583 F.3d 896, 911 (6th Cir.2009) (construing Twombly as requiring a plaintiff to plead enough specific facts “to raise a reasonable expectation that discovery will reveal evidence”), with id. at 912 (Merritt, J., dissenting) (stating that the majority has “seriously misapplied the new standard by requiring not simple ‘plausibility,’ but by requiring the plaintiff to present at the pleading stage a strong probability of winning the case), and Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.2008) (stating that Twombly “did not ... supplant the basic notice-pleading standard”). We noted in Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir.2010), that “the plausibility standard has been criticized by some as placing an improper burden on plaintiffs,” where a chief criticism “is that plaintiffs will need discovery before they can satisfy plausibility requirements when there is asymmetry of information, with the defendants having all the evidence.”

We recently stated this new standard is a “refined standard.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.2011). In applying this new, refined standard, we have held that plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’ Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Further, we have noted that [t]he nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kansas Penn, 656 F.3d at 1215; see also Iqbal, 129 S.Ct. at 1950 (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”). Thus, we have concluded the Twombly/Iqbal standard is “a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.” Robbins, 519 F.3d at 1247 (internal quotation marks and citations omitted).

In other words, Rule 8(a)(2) still lives. There is no indication the Supreme Court intended a return to the more stringent pre-Rule 8 pleading requirements. See Iqbal, 129 S.Ct. at 1950 (Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era....”). And in fact, the Supreme Court stated in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), a pre- Twombly case, that [a] requirement of greater specificity for particular claims is a result that must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.” Id. at 515, 122 S.Ct. 992 (internal quotation marks omitted). Thus, as the Court held in Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), which it decided a few weeks after Twombly, under Rule 8, [s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ Id. at 93, 127 S.Ct. 2197 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration in original)); see also al–Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir.2009) (Twombly and Iqbal do not require that the complaint include all facts necessary to carry the plaintiff's burden.”).

While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim. See Swierkiewicz, 534 U.S. at 515, 122 S.Ct. 992; see also Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Thus, we start by discussing the elements a plaintiff must...

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