Riley v. Vilsack, 09-cv-308-bbc.

Citation665 F.Supp.2d 994
Decision Date21 October 2009
Docket NumberNo. 09-cv-308-bbc.,09-cv-308-bbc.
PartiesRobert RILEY, Plaintiff, v. Tom VILSACK, Department of Agriculture; Abigail Kimbell, Chief, Forest Service; and The U.S. Department of Agriculture, Defendants.
CourtUnited States District Courts. 7th Circuit. Western District of Wisconsin

Victor Manuel Arellano, Bauer & Bach, Madison, WI, for Plaintiff.

Stephen Ehlke, United States Attorney's Office, Madison, WI, for Defendants.

OPINION and ORDER

BARBARA B. CRABB, District Judge.

For 50 years, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), provided the standard for determining the legal sufficiency of a complaint in federal court under Fed.R.Civ.P. 8. Any student of federal civil procedure is familiar with the famous passage from Conley, repeated in countless court decisions over the years: "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." Id. at 45-46, 78 S.Ct. 99. The Court of Appeals for the Seventh Circuit took this directive seriously, reminding district courts in many opinions not to require plaintiffs to do more than provide minimal notice of their claims. E.g., Kolupa v. Roselle Park District, 438 F.3d 713, 715 (7th Cir.2006) ("Any decision declaring `this complaint is deficient because it does not allege X' is a candidate for summary reversal, unless X is on the list in Rule 9(b)."); Doe v. Smith, 429 F.3d 706, 708 (7th Cir.2005); ("Plaintiffs need not plead facts; they need not plead law; they plead claims for relief. Usually they need do no more than narrate a grievance simply and directly, so that the defendant knows what he has been accused of."); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.2002) ("The federal rules require (with irrelevant exceptions) only that the complaint state a claim, not that it plead the facts that if true would establish (subject to any defenses) that the claim was valid.")

Then came Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), in which the Supreme Court "retired" the standard from Conley with little fanfare, concluding in an antitrust case that "fair notice" is insufficient. In addition to providing notice, the complaint must "state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. The Court went further in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009), holding that the "plausibility" standard applies to "all civil actions . . . antitrust and discrimination suits alike." Not surprisingly, Twombly and Iqbal have reinvigorated motion practice under Fed.R.Civ.P. 12(b)(6) as lower courts attempt to apply the new standard in cases across the legal spectrum. Robert Rothman, Twombly and Iqbal: A License to Dismiss, 35 Litigation 1 (Spring 2009).

In this case brought under federal employment discrimination laws, defendants Tom Vilsack, Abigail Kimbell and the U.S. Department of Agriculture have filed a motion to dismiss that relies heavily on Twombly and Iqbal. In particular, defendants argue that plaintiff's allegations of age discrimination, disability discrimination and retaliation are too "vague and conclusory" to satisfy Rule 8 as interpreted in those cases. (Initially, defendants included an alternative argument that plaintiff's complaint should be dismissed as untimely because he failed to file it within 90 days of receiving a final decision from the Equal Employment Opportunities Commission, 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 794a, but defendants abandoned that argument in their reply brief after plaintiff represented in his brief that he received notice of the EEOC decision less than 90 days before he filed his complaint in this court.)

I conclude that plaintiff has stated a claim upon which relief may be granted with respect to his age discrimination claim, but not with respect to his claims for disability discrimination and retaliation. After Twombly and Iqbal, conclusory allegations of discrimination are no longer sufficient to satisfy federal pleading requirements. Thus, plaintiff's bare assertions that defendants failed to accommodate his disability and engaged in a "campaign of retaliation" against him are insufficient to satisfy Rule 8.

On the other hand, plaintiff's allegations of age discrimination are more than conclusions. He alleges that defendants targeted for outsourcing the job responsibilities of older workers while making comments about their preference for younger workers. Although defendants raise a number of legitimate arguments about the merits of this claim, these arguments are better suited for the summary judgment stage. Iqbal and Twombly did not reinstate a regime of code pleading. A complaint does not need "detailed factual allegations," just enough facts to raise it above the level of mere speculation. Under this standard, plaintiff's age discrimination claim must be allowed to proceed.

Plaintiff fairly alleges the following facts in his amended complaint.

ALLEGATIONS OF FACT

Plaintiff Robert Riley was employed by defendant U.S. Department of Agriculture for approximately 27 years, most recently as an information technology specialist with the National Forest Agency. Defendant Tom Vilsack is Secretary of the department. He is responsible for approving, implementing and enforcing department policies and procedures. Defendant Abigail Kimbell is Chief of the Forest Service.

Plaintiff is 60 years old and suffers from a sensory deficit condition caused by a spinal cord injury in 1994. Because of his condition, he cannot perform certain functions such as buttoning, cooking, typing and writing. He uses voice software to perform "work-related duties."

In January 2003 the department entered into a contract with IBM "for the purpose of outsourcing [plaintiff's] position." The department "targeted . . . older workers in violation of well established policies and procedures without conducting an unbiased financial and civil rights impact analysis with respect to the impact that such outsourcing would have on older workers." The department stated in documents that its goal was to incorporate "younger highly qualified professionals [who] will have a modern professionally managed information infrastructure at their disposal." In describing the change, the department used "the metaphor of highly engineered cars that need very little service and minimal service centers to support versus older cars that are not as precise and need full service gas stations."

At the time of the outsourcing, 32 percent of the computer specialists were at least 50 years old, 38 percent of the telecommunications specialists were at least 50 years old and 27 percent of the computer assistants were at least 50 years old.

After plaintiff "began to oppose what he perceived [to be] discriminatory conduct," the department labeled him a "troublemaker."

As a result of the restructuring, plaintiff lost a significant percentage of his job duties. (Plaintiff does not say explicitly that he quit his job or was terminated, but the complaint suggests that he is no longer employed by defendants because he refers to his employment in the past tense and he requests reinstatement as a remedy.)

OPINION
A. Rule 8 Overview

The question before the court is whether plaintiff has stated a claim upon which relief may be granted with respect to his claims of age discrimination, disability discrimination and retaliation. Answering this question requires a proper understanding of Fed.R.Civ.P. 8(a)(2), under which a plaintiff's complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The parties agree that before Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), it was not difficult for a plaintiff in this circuit to satisfy the Rule 8 standard for a claim of discrimination or retaliation. With respect to discrimination claims, it was enough for the plaintiff to identify the alleged discriminatory action and the characteristic that prompted the unequal treatment. Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir.1998) (allegation of "I was turned down for a job because of my race" is sufficient to state a claim for race discrimination); Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir.1996) (when plaintiff alleges that "discriminatory motives impelled discriminatory treatment of him, he has stated an equal protection claim"). The standard for retaliation claims was similarly lax. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.2002) (plaintiff satisfies Rule 8 for retaliation claim by identifying protected conduct and defendant's act of retaliation).

More generally, the Court of Appeals for the Seventh Circuit interpreted Rule 8 to require plaintiffs to do no more than provide enough notice to allow the defendant to file an answer. E.g., Christensen v. County of Boone, IL, 483 F.3d 454, 458 (7th Cir.2007); Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir.2006); Brown v. Budz, 398 F.3d 904, 908 (7th Cir.2005); Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 863 (7th Cir.2002). Plaintiffs did not need to plead facts for each element of a claim. Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). A complaint could "not be dismissed on the ground that it is conclusory or fails to allege facts." Higgs, 286 F.3d at 439. The court emphasized the "no set of facts" language from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), stating that a plaintiff pleads himself out of court only "when it would be necessary to contradict the complaint in order to prevail on the merits." Kolupa v. Roselle Park District, 438 F.3d 713, 715 (7th Cir.2006) (citing Conley, 355 U.S. 41, 78 S.Ct. 99). See also Marshall v. Knight, 445 F.3d 965, 968 (7th...

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