Employment: Actionable Claims and Standard of Review

Actionable Claims

42 U.S.C. § 1983, 28 U.S.C. § 1367, Jones and Pressley v. Patrick and Associates Detective Agency, Inc (7th Cir. 2006) Individual liability; Farrell v. Butler University (7th Cir. 2005) Finding of genuine issue of material fact, disparate treatment, disparate impact and adverse employment actions; Walker v. Abbott Laboratories (7th Cir. 2003) At will employment claim under §1981; Washington v. Illinois Department of Revenue (7th Cir. 2005) Discrimination in terms and conditions of employment and adverse employment action; Maalik v. International Union of Elevator Constructors, Local 2 (7th Cir. 2006) and Whittaker v. Northern Illinois University et al. (7th Cir. 2005) Hostile work environment and retaliation; and Ineichen v. Ameritech (7th Cir. 2005) Similarly situated individuals. All of which fall under Title VII, ADEA, § 1331, § 1367, § 1981, and § 1983.

Standard of Review

The law does not require a plaintiff to plead any legal theories, see Thomson v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004), and particularly since he filed his complaint pro se, he should not be held to the one incorrect theory he did name. Instead, the court should ask whether any set of facts consistent with the complaint would give him a right to recover, no matter what the legal theory. See FED. R. CIV. P. 8(a); Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001).
Whether plaintiff can establish any set of facts consistent with the complaint, which would give him a right to recover, the plaintiff needs to have discovery. Litigants are entitled to discovery before being put to their proof, and treating the allegations of the complaint as a statement of the party's proof leads to windy complaints and defeats the function of Rule 8. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Nance v. Vieregge, 147 F.3d at 590 (7th Cir. 1998); Cook v. Winfrey, 141 F.3d 322 (7th Cir. 1998); Albiero v. Kankakee, 122 F.3d 417, 419 (7th Cir. 1997); Early v. Bankers Life & Casualty Co., 959 F.2d 75, 78-79 (7th Cir. 1992).

A Title VII plaintiff need not set forth allegations of a prima facie case in the complaint. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). Instead, a plaintiff alleging discrimination in violation of Title VII must only set forth in the complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. (quoting Fed. R. Civ. P. 8(a)). Swierkiewicz governs complaints in § 1981 discrimination actions. See, e.g., Maduka v. Sunrise Hospital (2004) Nonetheless, the dismissal of a complaint for failure to state a claim is proper if “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); see also Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 765 (3d Cir. 2004).

"All pleadings shall be so construed as to do substantial justice." Fed. R. Civ. P. 8(f). This objective is defeated if excess length becomes a fatal misstep. Prolixity is a bane of the legal profession but a poor ground for rejecting potentially meritorious claims. Fat in a complaint can be ignored, confusion or ambiguity dealt with by means other than dismissal. It takes a lot worse than using 12 pages to set out a claim that could have been stated in 6 pages to justify a dismissal under Rule 8(a). See In re Westinghouse Securities Litigation, 90 F.3d 696, 702-03 (3d Cir. 1996) (600 paragraphs spanning 240 pages); Kuehl v. FDIC, 8 F.3d 905, 905 (1st Cir. 1993) (358 paragraphs, containing 36 repetitive claims, in 43 pages); Michaelis v. Nebraska State Bar Association, 717 F.2d 437, 439 (8th Cir. 1983) (144 paragraphs in 98 pages).

Twelve pages of gibberish is no better than 240, so it may be appropriate to dismiss a short complaint under Rule 8 because it is not "plain". It is even possible to justify dismissal with prejudice if the complaint remains incomprehensible after opportunity to amend. See Charles Alan Wright & Arthur R. Miller, 5 Federal Practice and Procedure sec.1216 (2d ed. 1990) (collecting cases).

Rule 8(a) requires only a “short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000). The Supreme Court has cautioned that “the Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of the pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48 (1957); see also Luckett v. Rent-A-Center, Inc., 53 F.3d 871, 873 (7th Cir. 1995) (“District judges must heed the message of Rule 8: the pleading stage is not the occasion for technicalities.”).