Academic journal article William and Mary Law Review

MOTION TO DISMISS FOR FAILURE TO SUCCEED ON THE MERITS: THE EEOC AND RULE 12(b)(6)

Academic journal article William and Mary Law Review

MOTION TO DISMISS FOR FAILURE TO SUCCEED ON THE MERITS: THE EEOC AND RULE 12(b)(6)

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                                    1098 I. THE PLEADING STANDARD                                        1100    A. Plausibility Pleading Under Twombly and Iqbal             1101    B. Pleading Employment Discrimination                        1104       1. Did Twombly and Iqbal Overrule Swierkiewicz?           1105       2. The Port Authority Case                                1109 II. FILING SUIT FOR EMPLOYMENT DISCRIMINATION                   1110    A. The Role of the EEOC                                      1110    B. Administrative Hurdles                                    1111    C. When the EEOC Files Suit on a Plaintiff's Behalf          1112 III. THE INEVITABLE MOTION TO DISMISS FOR FAILURE TO      STATE A CLAIM                                              1114    A. Revisiting the Rationale for Plausibility Pleading        1115    B. The Case Against Granting the Motion to Dismiss           1118 CONCLUSION                                                      1121 

INTRODUCTION

A group of female attorneys, living the reality of the gender wage gap in the United States, (1) sue their employer for discriminatory practices in compensation. (2) The United States Equal Employment Opportunity Commission (EEOC) launches a full-scale investigation into the claim, (3) issues a determination that the employer committed illegal acts of discrimination, (4) and engages in failed conciliation efforts with the employer. (5) Deeming the case a litigation priority, the EEOC chooses to expend limited administrative resources by filing suit on the plaintiffs' behalf. (6) Despite the EEOC's efforts, the United States District Court for the Southern District of New York dismisses the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), (7) a decision that the United States Court of Appeals for the Second Circuit affirms. (8) The case is EEOC u. Port Authority of New York & New Jersey, (9) and, with thanks to the Supreme Court's "plausibility" pleading standard, (10) it represents the latest episode of the steep hurdle that employment discrimination plaintiffs must overcome when they face the now inevitable motion to dismiss under Rule 12(b)(6). (11)

This Note takes issue with the dismissal of the EEOC's pleadings for failure to state a claim under Rule 12(b)(6) (12) and suggests that the policy rationale underlying plausibility pleading points against dismissal when the EEOC files suit on a plaintiff's behalf. (13) More specifically, this Note argues that the policy concerns that drove the establishment of plausibility pleading in Bell Atlantic Corp. v. Twombly (14) and its reaffirmation in Ashcroft u. Iqbal (15)--concerns about dragging defendants into expensive and frivolous litigation (16)--lack particular force when the EEOC files suit on a plaintiff's behalf. Plaintiffs alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 and other statutory schemes must exhaust their administrative remedies with the EEOC before filing suit in federal court. (17) By choosing to expend limited administrative resources in pursuing litigation, the EEOC operates as an effective gatekeeper. (18) Not only will such employment discrimination plaintiffs have exhausted their administrative remedies with the EEOC, but also the EEOC will have issued a determination of fault regarding the alleged unlawful employment action and will have made the affirmative decision to represent the plaintiff in federal court. (19) In those cases, the risk of dragging defendant employers into frivolous lawsuits should be significantly diminished. (20) The fact that the EEOC has decided to file on a plaintiff's behalf should weigh strongly in favor of plausibility when courts consider whether the EEOC's pleadings survive a motion to dismiss under Rule 12(b)(6). (21) Accordingly, this Note suggests that the EEOC's pleadings are entitled to deferential review at the 12(b)(6) stage when it files on a plaintiff's behalf. …

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