EEOC complaints are known for their brevity, often consisting of a mere handful of terse paragraphs, even in complex pattern or practice cases. On September 28, 2011, Judge Robert M. Dow Jr. of the U.S. District Court for the Northern District of Illinois told the EEOC that its Spartan pleading style had gone too far or, more accurately, not far enough, in a ruling in EEOC v. United Parcel Service, Inc., No. 09-CV-5291 (N.D. Ill. Sept. 28, 2011).
The EEOC filed its original lawsuit in 2009, claiming that UPS discriminated against Trudi Momson on the basis of her alleged disability by terminating her at the conclusion of a 12-month leave of absence. Our previous posts have identified these leave issues as a hot topic for the EEOC, particularly as a pattern or practice claim where employers use neutral leave polices in dealing with sick, injured, and disabled workers. Judge Dow dismissed the case in September of 2010 – in EEOC v. United Parcel Service, Inc., No. 09-CV-5291,2010 U.S. Dist. LEXIS 94401 (N. D. Ill. Sept. 10, 2010) – on the basis that the EEOC had not put enough detail concerning Momson’s alleged disability in the Complaint to determine she was qualified for her job with or without an accommodation, but gave the EEOC another chance to assert an amended complaint. The EEOC did so, and on September 30, 2010, filed an amended complaint asserting a pattern or practice claim by adding a claim by another employee (Mavis Luvert) and a class of unidentified UPS employees.
UPS filed another motion to dismiss. The Company did not challenge the EEOC’s claims for the named claimants Momson or Luvert, but instead attacked the EEOC’s supposed “class” by arguing that the EEOC had not and could not plead facts regarding the class members’ disabilities, leaves of absence, or any accommodations that UPS supposedly failed to provide them. Id. at 3.
The Court agreed, and dismissed the case again.
UPS’s main argument was that the EEOC must be able to provide some evidence to support its class claims – that under precedent like the Supreme Court’s Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), simply providing the bare elements of a case is not enough to support a class-type case. The EEOC contended that it had put UPS “on notice” and that was enough. The Court did not agree, explaining that cases from the Northern District of Illinois have held that an ADA case must be plead with adequate specificity. Id. at 7. Although the EEOC pointed to Title VII cases where bare-bones pleading had been allowed, Judge Dow said the ADA is different – sometimes employment decisions based on certain impairments do not violate the law (unlike race or sex-based decisions), and therefore more detail is required in an ADA complaint. Id. at 7-8.
The EEOC also argued that if it was required to collect specific facts of discrimination before filing suit, employers would hide such information during EEOC investigations. The Court rejected the EEOC’s position out of hand, reasoning that the EEOC had more than enough tools to collect the proper information to support its case before filing suit. Id. 8-9.
Finally, the EEOC argued (as it often does) that it is the government, and is not constrained by the rules that apply to private litigants. The Court rejected that argument as well, noting that although the EEOC did not face the full force of Fed. R. Civ. P. 23 when filing a class-like case, it still “must include sufficient facts to put UPS on notice of the nature of the claim(s) and must state a plausible claim for relief.” Id. at 9.
The Court gave the EEOC one final chance to file another amended complaint that has enough meat to pass Fed. R. Civ. P. 8 muster. It remains to be seen if the EEOC can do so. Often the EEOC asserts class-wide discrimination in its complaints, but those allegations dissolve when pressure-tested. Indeed, the EEOC often states that it expects to use the discovery process to uncover discriminatory practices, rather than having the goods to support such claims before filing a lawsuit. Employers facing similar bare-bones complaints should consider challenging the EEOC from the outset and, where appropriate, filing a Twombly-style motion to dismiss. As the UPS case shows, such a strategy may jettison large portions of the EEOC’s case at the front door of litigation.