The Challenge of Pleading Inconsistent Claims

from the November 2012 LEL Labor and Employment Law News

Plaintiffs in discrimination cases now face special challenges in drafting complaints. These special challenges were created by several U.S. Supreme Court cases that require plaintiffs to include more specifics about the facts than is required for other cases. An example may be found in a recent case in which an employee claimed that his former employer, Lawrence Medical Center, had violated the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Family and Medical Leave Act.  The complaint alleged that the plaintiff employee suffered from diabetes and high blood pressure and that he was replaced by a 42 year-old man (17 years younger than the plaintiff) as interim CEO.  In addition, after his demotion, the plaintiff began having greater health problems. Terry Pearson v. Lawrence Medical Center, Case No.5:12-cv-1064-CLS (N.D. Ala. Oct. 24, 2012).

The employer argued that the case should be dismissed because the plaintiff’s claims were inconsistent. It may seem reasonable to require plaintiffs to get their facts straight. However, odd as it may seem, the Federal Rules of Civil Procedure allow plaintiffs to plead facts that are not consistent. Rule 8(d) says that parties may set out alternative statements of claims. In addition, Rule 8 says, “A party may state as many separate claims or defenses as it has, regardless of consistency.” The court in this case says that what a plaintiff must do is draft a complaint that contains enough facts, that, if those facts are found to be true, the complaint states a plausible claim for relief. Notice that Rule 8 says that defendants may also plead inconsistent defenses.  

In this case, the defendant’s partial motion to dismiss clearly misunderstands Rule 8(d). The defendant argues that a plaintiff can present only one issue. As a result, the defendant says, a plaintiff cannot simultaneously allege that the defendant discriminated against the plaintiff on the basis of his age and on the basis of his disability and that the defendant also retaliated against him for requesting leave under the FMLA.

Most of the time, when someone gives shifting explanations, we are wise to be wary of them. However, there can be situations in which we know important facts about what happened but do not know the motivations behind those actions. We allow parties to plead inconsistent claims and defenses for similar reasons. Plaintiffs may not have access to all the relevant facts until after the case has been filed and discovery is completed. As a result, it makes sense to require parties to provide only enough information to give the other party or parties enough notice of the claims so they can respond.

The decision in this case discusses the Supreme Court cases that demand heightened levels of pleading and the challenges those requirements create in applying the Federal Rules of Civil Procedure’s notice pleading requirements and tolerance for inconsistency in pleadings.  The tries to reconcile the Supreme Court doctrines in discrimination cases that require “but for” causation – meaning that there is only one cause. The plain reading of those cases seem to rule out the existence of mixed motives in ADEA cases. The court in this case resolves the dilemma by saying: “Thus, although, after Gross (and Twombly and Iqbal), a plaintiff who brings claim under the ADEA must allege facts sufficient to support a reasonable inference that age was the “but for” cause of the adverse employment action challenged under that claim, Gross does not in any way limit a plaintiff’s ability to plead alternative facts and alternative theories.”

The court also points out that our system does not require a plaintiff to chose among claims. Rathyer, there can be “multiple ‘but-for’ causes, each one of which may be sufficient to support liability. . . . It is not difficult to conceive of a scenario where this principle could apply to an employment decision alleged to violate both the ADEA and Title VII or § 1981. Consider the example of a qualified, 50 year-old female job applicant who is rejected for a vacant position that is later filled by a 30 year-old male. She sues the employer for age discrimination under the ADEA and sex discrimination under Title VII. During discovery, it is shown that, around the time he rejected the plaintiff, the decision-maker had said, “Old people and women are all terrible workers. I’ll never hire either one, and old women are the absolute worst.” It seems inconceivable that Congress or the Gross Court would have contemplated the decision-maker’s misogyny as exculpating the employer from liability under the ADEA.”