Discrimination claims are not easy to prove. But, it doesn’t take much for a plaintiff to at least allege in her complaint that her former employer discriminated against her.
Except when all you plead are “vague and conclusory” allegations.
For example, in a Fifth Circuit decision I read last night, the plaintiff was fired from her position because she allegedly sprayed water on someone.
The plaintiff disagreed. She believed that the defendant fired her because she was black.
Now, in fairness to the plaintiff, most people who lose their jobs do not have direct evidence of discrimination. But, to survive a motion to dismiss and get to discovery, plaintiffs must plead some specific facts that inch their claims across the line from merely possible to plausible. Here are some of the allegations from the plaintiff’s complaint:
- “Plaintiff’s race was a factor in the decision to fire her is seen by both the pattern and practice of Defendant treating black employees differently than non-black employees in regard to disciplinary matters.”
- “By firing Plaintiff, Defendant treated Plaintiff differently than non-black employees under substantially similar circumstances (ie.confirmation [sic] of alleged abuse that did not involve injury to a resident).”
- “Moreover, Defendant has violated the [Civil Rights Act] by engaging in the disparate treatment of black employees as compared to non-black employees in matters involving discipline.”
- “In particular, the facially neutral basis for termination used against Plaintiff, that is, that she was confirmed for abuse, is not applied equally to black employees like Plaintiff when compared to non-black employees.”
The court noted that these “vague and conclusory allegations [were] all tied thematically to the [defendant’s] purported discriminatory treatment of its black employees.” The lower court also said as much and offered the plaintiff the opportunity to amend her complaint to add more specifics. However, the plaintiff appealed rather than follow the trial court’s roadmap.
In her appeal, she block-quoted the district court’s order and the allegations in her complaint (twice). She argued that she need not provide “specific names of similarly situated non-black employees” because “the motion to dismiss was filed prior to any discovery taking place.”
While the plaintiff was correct that she need not include specific names of other similarly situated non-black employees who received less harsh treatment for similar incidents, “federal pleading rules require something more than the-defendant-harmed-me allegations.” A plaintiff must allege some specific facts and cannot simply rely on vague assertions with the unsubstantiated hope that discovery will later vindicate them.