UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SPARROW, VICTOR H.

v.

UNITED AIRLINES INC


99-7165a

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: Plaintiff Victor H. Sparrow, III  worked for
United Air Lines for three years before being  terminated in 1997. On
September 15, 1998, he sued his  former employer on a number of
grounds, including alleged  racial discrimination in employment. In
lieu of an answer,  United filed a motion under Federal Rule of Civil
Procedure  12(b)(6), asking the district court to dismiss plaintiff's
action  for "failure to state a claim upon which relief can be
granted."  The court granted the motion, holding that plaintiff's com-
plaint had failed to "make out a prima facie case of discrimi-
nation." Sparrow v. United Airlines, Inc., No. 98-2194, slip  op. at
17 (D.D.C. July 22, 1999). Because a plaintiff need not  set forth the
elements of a prima facie case at the initial  pleading stage, we
reverse and remand for further proceed- ings.


I


Sparrow's amended complaint included a plethora of  charges against
United, ranging from breach of contract to  violation of various state
laws. The district court dismissed  the complaint in its entirety,
and, in an earlier opinion, this  court affirmed as to all claims
other than those alleging  "discriminatory discharge and failure to
promote under 42  U.S.C. s 1981." Sparrow v. United Air Lines, Inc.,
No.  99-7165 (D.C. Cir. Dec. 21, 1999).1 We review de novo the 
district court's dismissal of the remaining claims under Rule 
12(b)(6). See, e.g., Croixland Properties Ltd. v. Corcoran, 174  F.3d
213, 215 (D.C. Cir. 1999). In so doing, we must treat the  complaint's
factual allegations as true, see Leatherman v.  Tarrant County
Narcotics Intelligence and Coordination  Unit, 507 U.S. 163, 164
(1993), and must grant plaintiff "the  benefit of all inferences that
can be derived from the facts  alleged," Schuler v. United States, 617
F.2d 605, 608 (D.C.  Cir. 1979). See Croixland Properties, 174 F.3d at




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n 1 Section 1981 prohibits racial discrimination in "the making, 
performance, modification, and termination of contracts, and the 
enjoyment of all benefits, privileges, terms, and conditions of the 
contractual relationship." 42 U.S.C. s 1981(b); see Carney v. 
American Univ., 151 F.3d 1090, 1092-93 (D.C. Cir. 1998).


2 We also note that Sparrow brought this action pro se, and that  the
Supreme Court has instructed the lower courts to hold "allega-


A


The district court dismissed Sparrow's employment dis- crimination
claims on the ground that "[p]laintiff cannot make  out a prima facie
case of discrimination." Sparrow, slip op. at  17. "Specifically," the
court said, "plaintiff has not pointed to  any similarly situated
employees who were given preferential  treatment over him." Id.
Moreover, "even assuming that  plaintiff could meet the elements of a
prima facie case, he has  offered no evidence to demonstrate that
[United's] reasons  for firing him were pretextual." Id.


It is true that under the familiar McDonnell Douglas  framework for
proving unlawful discrimination:


First, the plaintiff has the burden of proving by the  preponderance of
the evidence a prima facie case of  discrimination. Second, if the
plaintiff succeeds in prov- ing the prima facie case, the burden
shifts to the defen- dant "to articulate some legitimate,
nondiscriminatory  reason for the employee's rejection." Third, should
the  defendant carry this burden, the plaintiff must then have  an
opportunity to prove by a preponderance of the  evidence that the
legitimate reasons offered by the de- fendant were not its true
reasons, but were a pretext for  discrimination.


Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,  252-53
(1981) (quoting McDonnell Douglas Corp. v. Green,  411 U.S. 792, 802
(1973)) (citations omitted); see Reeves v.  Sanderson Plumbing Prods.,
68 U.S.L.W. 4480, 4482 (U.S.  June 12, 2000). It is also true that
"[t]o establish a prima  facie case under the McDonnell Douglas
framework, [a plain-




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n tions of [a] pro se complaint ... to less stringent standards than 
formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S.  519,
520 (1972). However, because we decide this appeal in Spar- row's
favor under the standards applicable to represented plaintiffs,  we
need not decide whether Sparrow--who graduated from Har- vard Law
School but is not now licensed to practice law--would be  entitled to
the benefit of the less stringent pro se standards  enunciated by the


tiff] must demonstrate (1) that she is a member of a protected  class;
(2) that she was similarly situated to an employee who  was not a
member of the protected class; and (3) that she  and the similarly
situated person were treated disparately."  Holbrook v. Reno, 196 F.3d
255, 261 (D.C. Cir. 1999).3


None of this, however, has to be accomplished in the  complaint itself.
Under Federal Rule of Civil Procedure  8(a)(2), a claim need only
contain "a short and plain statement  of the claim showing that the
pleader is entitled to relief."  Rule 8(e)(1) states that "[e]ach
averment of a pleading shall  be simple, concise, and direct. No
technical forms of pleading  or motions are required." And Rule 8(f)
instructs that "[a]ll  pleadings shall be so construed as to do
substantial justice."  In Conley v. Gibson, the Supreme Court
interpreted these  rules to mean that "a complaint should not be
dismissed for  failure to state a claim unless it appears beyond doubt
that  the plaintiff can prove no set of facts in support of his claim 
which would entitle him to relief." 355 U.S. 41, 45-46 (1957).  The


the Federal Rules of Civil Procedure do not require a  claimant to set
out in detail the facts upon which he  bases his claim. To the
contrary, all the Rules require is  "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.... Such
simplified  "notice pleading" is made possible by the liberal opportu-
nity for discovery and the other pretrial procedures  established by
the Rules to disclose more precisely the  basis of both claim and
defense and to define more  narrowly the disputed facts and issues.


Id. at 47-48 (citations omitted).


The grounds for the district court's dismissal of Sparrow's  complaint
are inconsistent with Rule 8 and Conley. Sparrow 




__________

n 3 Although the McDonnell Douglas framework was established  for
proving racial discrimination under Title VII of the Civil Rights  Act
of 1964, 42 U.S.C. ss 2000e et seq., the same framework is used  for
evaluating claims under 42 U.S.C. s 1981. See Carney, 151  F.3d at
1092-93.


did not have to "make out a prima facie case of discrimina- tion" in
his complaint, specifically point to "similarly situated  employees
who were given preferential treatment over him,"  or offer "evidence
to demonstrate that [United's] reasons for  firing him were
pretextual." Sparrow, slip op. at 17.4 To the  contrary, "[c]omplaints
'need not plead law or match facts to  every element of a legal
theory.' " Krieger v. Fadely, 211  F.3d 134, 136 (D.C. Cir. 2000)
(quoting Bennett v. Schmidt,  153 F.3d 516, 518 (7th Cir. 1998)); see
Caribbean Broad. Sys.,  Ltd. v. Cable & Wireless PLC, 148 F.3d 1080,
1086 (D.C. Cir.  1998) ("[A] plaintiff need not allege all the facts
necessary to  prove its claim."); Atchinson v. District of Columbia,
73 F.3d  418, 421-22 (D.C. Cir. 1996) ("A complaint ... need not
allege  all that a plaintiff must eventually prove ...."); Sinclair v.
 Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983) ("The Federal  Rules
of Civil Procedure do not require a claimant to set out  the precise
facts on which the claim is based.... 'Notice  pleading' is


Nor are discrimination or other civil rights complaints  different in
this regard. Conley itself involved a class action  by
African-American railroad clerks who alleged that their  union had
breached its duty of fair representation by discrim- inating against
them in violation of their rights under the  Railway Labor Act, 45
U.S.C. ss 151 et seq. In reversing the  dismissal of the complaint
under Rule 12(b)(6), the Court  rejected defendant's argument that
dismissal was proper  because "the complaint failed to set forth
specific facts to  support its general allegations of discrimination."
Conley,  355 U.S. at 47. Thiry-five years later, in Leatherman v. 
Tarrant County, the Supreme Court reaffirmed the continu- ing vitality
of Conley, rejecting the suggestion that a  " 'heightened pleading
standard'--more stringent than the  usual pleading requirements of




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n 4 See Powell v. Ridge, 189 F.3d 387, 394 (3d Cir. 1999); Ortez v. 
Washington County, 88 F.3d 804, 808 (9th Cir. 1996); Ring v. First 
Interstate Mortgage, Inc., 984 F.2d 924, 926-27 (8th Cir. 1993).


rights cases brought under 42 U.S.C. s 1983. 507 U.S. at  164; see id.
at 167-68 (citing Conley, 355 U.S. at 47).


This court has followed the Supreme Court's lead. In  Atchinson, for
example, we reversed the dismissal of a com- plaint alleging that a
municipality had violated a plaintiff's  civil rights by failing to
train or supervise its police officers.  See 73 F.3d at 419. Citing
Conley and Leatherman, we  rejected the district court's conclusion
that plaintiff's com- plaint was deficient because it "failed to
identify a specific  custom, policy statement, or procedure that
caused his inju- ries," and otherwise "failed to state facts
supporting" its  allegations. Id. at 422. It was enough, we said, that
plaintiff  "alleg[ed] that [the police officer] shot him in broad
daylight  on a city street so quickly after [plaintiff] was ordered to


In sum, we agree with the conclusion reached by Judge  Easterbrook in
Bennett: "Because racial discrimination in  employment is 'a claim
upon which relief can be granted,'....  'I was turned down for a job
because of my race' is all a  complaint has to say" to survive a
motion to dismiss under  Rule 12(b)(6). Bennett, 153 F.3d at 518; see
Krieger, 211  F.3d at 136 (citing Bennett with approval).


B


Plaintiff's complaint readily meets the standard of Conley  and its
progeny. Count Five5 expressly states that it "is  founded upon 42
United States Code s 1981 for a disparate  and discriminatory
application by the Defendants of the per- sonnel, compensation, and
termination policies of Defendant  United because of his race." Compl.
p 76. It goes on to  charge that the "discriminatory, offensive, and
invidious treat- ment which the Plaintiff has experienced" was
"motivated and  predicated in principal part by a pervasive distaste
for the  racial ethnicity of the Plaintiff." Id. p 77. And, in words
that  presage the district court's own decision concerning the re-
quirements of a prima facie case, it alleges that "a similarly 
situated male Caucasian United States citizen employee of 




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n 5 There are two counts labeled "Five" in the amended complaint.  We
refer here to the second of the two.


defendant United would not have experienced such disparate  treatment
culminating in termination." Id.


Indeed, the complaint goes into considerably more detail,  fleshing out
specific claims of both discriminatory failure to  promote and
discriminatory termination.


With respect to promotion, the complaint alleges that there  were


continuing violations of public policy in an atmosphere of  pervasive
racial discrimination beginning with: (a) the  failure of the United
Air Lines Sales Department in  September 1995 to hire the Plaintiff as
an Account  Representative at the Washington Reservations Center 
(IADRR); continuing with the refusal to allow the Plain- tiff to
interview for the vacant position of Manager,  Vendor Contracts &
Services at the Maintenance Opera- tions Center (SFOPP) and the hiring
of a Caucasian who  had been unsuccessful in her application to become
a  peer of the Plaintiff as a Senior Contracts Specialist in  May,


Id. at 3. The complaint further alleges that as part of the  promotion
process, in September 1995 United conducted  " 'subjective'
performance tests" that it refused to show "were  either 'validated,'
'job related,' or 'required by business neces- sity' as mandated by
the various State and Federal Civil  rights laws," id. p 20-21, and
that "all of the 'successful'  candidates from the IADRR September
Testing session were  Caucasian," id. p 20.6 See id. pp 33, 36, 38,


With respect to the termination claim, Sparrow alleges that  "[t]he
conduct of the named Defendants and their co- conspirators culminated
in the wrongful termination of the  Plaintiff, Victor H. Sparrow, III,
an African-American male  citizen ... in violation of the
anti-discrimination laws ... of  the United States." Id. at 5. That
termination occurred, he 




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n 6 Although these paragraphs of the complaint are formally alleged  as
part of Count One, which charges only breach of contract, they  (and
all of paragraphs 1-70) are expressly incorporated into Count  Five by
reference. See Compl. p 75.


alleges, notwithstanding that "[d]uring the period of his em- ployment
by Defendant United ... the Plaintiff performed in  a skillful and
workmanlike manner," receiving "three (3)  outstanding 'Employee
Performance Reviews' and two (2)  competitive promotions." Id. at 6;
see id. pp 14(b), 15. The  complaint goes on to state: "The Plaintiff
contends that he  would not have been terminated had he been a
similarly  situated Caucasian male," id. at 6, and further complains
that  in firing him, "Defendants failed to follow the termination 
procedure set out" in United's management handbook, id.  p 49. This
detail was more than was necessary to constitute  the "short and plain
statement" required by Rule 8(a).


In some cases, it is possible for a plaintiff to plead too  much: that
is, to plead himself out of court by alleging facts  that render
success on the merits impossible. See Bennett,  153 F.3d at 519. In
this case, Sparrow came close to crossing  that line by stating in his
complaint that: (a) he was convicted  of multiple felonies in 1982,
see Compl. p 1; (b) he answered  "no" when asked on his United
employment application  whether he had ever been convicted of a
felony, id. p 9; and  (c) United advised him that he was being
terminated because  of his dishonesty in failing to reveal the 1982
convictions, see  id. p 48. As noted above, under the McDonnell
Douglas  framework, even if a plaintiff succeeds in establishing a
prima  facie case, an employer can overcome the resulting burden by  "
'articulat[ing] some legitimate, nondiscriminatory reason for  the
employee's rejection.' " Burdine, 450 U.S. at 252-53  (quoting
McDonnell Douglas, 411 U.S. at 802). Intentional  dishonesty on an
employment application surely constitutes  such a reason.


But that is not the end of the matter. First, this nondis- criminatory
reason would apply at most to Sparrow's termi- nation claim; the
complaint does not suggest that United  knew of Sparrow's false
statement at the time his requests  for promotion were rejected. See
McKennon v. Nashville  Banner Publ'g Co., 513 U.S. 352, 360-63 (1995)
(holding that 


after-acquired evidence can serve only to limit remedy, not to 
preclude liability altogether).7


Second, even where "the defendant carr[ies] [its] burden"  of
articulating a nondiscriminatory reason for its actions, "the 
plaintiff must then have an opportunity to prove by a prepon- derance
of the evidence that the legitimate reasons offered by  the defendant
were not its true reasons, but were a pretext  for discrimination."
Burdine, 450 U.S. at 253; see Reeves, 68  U.S.L.W. at 4482. Although
the district court correctly noted  that plaintiff had "offered no
evidence to demonstrate that  [United's] reasons for firing him were
pretextual," Sparrow,  slip op. at 17, Sparrow had not yet had the
opportunity to do  so. The district court had stayed all discovery
pending its  decision on the motion to dismiss. See Sparrow v. United 
Air Lines, Inc., No. 98-02194 (D.D.C. Dec. 22, 1998) (order  staying
discovery); cf. Bennett, 153 F.3d at 519 ("Litigants  are entitled to
discovery before being put to their proof.").  Moreover, plaintiff's
complaint did repeatedly allege that his  1982 convictions were
"employed as a pretext for termi- nation," and that "a similarly
situated Caucasian employee"  would not have been terminated on the
same grounds.  Compl. at 3; see id. at 1, 6. As with any other factual
 allegation in a complaint, we must treat this one as true for 
purposes of evaluating dismissal under Rule 12(b)(6). See  Leatherman,
507 U.S. at 164. A "complaint should not be  dismissed for failure to
state a claim unless it appears beyond  doubt that the plaintiff can
prove no set of facts in support of  his claim which would entitle him
to relief." Conley, 355 U.S.  at 45-46. Although it may be doubtful
whether Sparrow  ultimately will be able to establish that his
conceded dishones- ty was a mere pretext, we cannot say it is "beyond
doubt"  that he can prove no set of facts that would do so.


II


Before concluding, we briefly consider two additional issues  raised by
the parties.




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n 7 United's brief concedes that the company did not know of 
plaintiff's dishonesty until September 1997, long after the allegedly 
discriminatory failures to promote occurred. See United Br. at 7-8.


First, United urges us to reject Sparrow's failure-to- promote claim on
the ground that he waived it below. The  district court did not
dismiss on the ground of waiver, and we  do not believe there was one.
As we held in Part I, Spar- row's complaint sets forth a claim of
discriminatory failure to  promote in sufficient detail to survive a
motion to dismiss.  United contends that Sparrow waived that claim by
not  arguing it in his opposition to United's Rule 12(b)(6) motion. 
It was United, however, that failed to argue the point. The  company
acknowledges that in its motion to dismiss it "did  not separately
address whether the amended complaint states  a claim for race
discrimination in promotions." United Br. at  5.8 In fact, United did
not mention the promotion issue at all,  addressing only the
allegation of discriminatory discharge.  See United Mem. in Supp. of
Mot. to Dismiss at 8. Sparrow,  on the other hand, noted United's
omission and complained  that "Defendants ignore the events alleged to
have occurred"  in connection with the specific failures to promote.
Sparrow  Mem. in Opp'n to Mot. to Dismiss at 11.9 Sparrow then went 




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n 8 United contends that it did not address the failure-to-promote 
issue because Count Five of the complaint (entitled "Violation of the 
Federal Civil Rights Act") did "not allege that the lost promotions 
were caused by race discrimination." United Br. at 5. But as we  have
noted above, that count did allege violations of 42 U.S.C.  s 1981 for
"disparate and discriminatory application by the defen- dants of the
personnel, compensation, and termination policies of  Defendant United
because of his race." Compl. p 76 (emphasis  added). And while United
is correct that the allegations that  plaintiff did not receive three
promotions for which he applied were  made elsewhere in the complaint,
see id. pp 18-20, 33, 35-36, 38, 40- 41, 43, those paragraphs were
"incorporated by reference" in Count  Five "as if fully set out"
therein, id. p 75. See supra note 6; see  also Compl. at 3 (describing
failures to promote as occurring "in an  atmosphere of pervasive
racial discrimination").


9 See Sparrow Mem. in Opp'n at 11 (noting, with citations to 
paragraphs of the complaint, United's failure to address the "events 
alleged to have occurred at the Washington Reservations Center or 
those involving the United Department of Governmental Affairs in 
Washington, or the denial of an interview opportunity for the  Manager
of Vendor Contracts").


on to discuss United's argument relating to the allegation of 
discriminatory discharge. See id. at 12-13. Nothing more  was required
to preserve the failure-to-promote claim.


Second, Sparrow seeks review of the district court's grant  of United's
motion for sanctions against him under Federal  Rule of Civil
Procedure 11. The district court has not yet  fixed the amount of
sanctions to be imposed. As a conse- quence, United contends that the
sanctions order is not  "final" and thus is not reviewable under 28
U.S.C. s 1291,  which grants courts of appeals jurisdiction over
appeals from  final decisions of the district courts. See Gilda Marx,
Inc. v.  Wildwood Exercise, Inc., 85 F.3d 675, 677 (D.C. Cir. 1996). 
Although we may nonetheless have discretion to exercise  pendant
jurisdiction to review the non-final Rule 11 order  along with the
final dismissal under Rule 12(b)(6), see id. at  678, we will not
exercise that discretion in this case. "[W]e  entertain pendant
appeals only when substantial consider- ations of fairness or
efficiency demand it," id. at 679, and  those considerations are
absent here. There is no reason to  believe that the interest in
judicial economy would be served  by deciding the sanctions issue now,
nor do we have before us  a record sufficient to permit a fair
determination of its merits.  Moreover, since no sanctions have yet
been imposed, the  plaintiff will not be injured by awaiting final


III


We understand why district courts may want to alleviate  their crowded
dockets by disposing quickly of cases that they  believe cannot
survive in the long run. But as the Supreme  Court held in Leatherman,
this may not be accomplished by  employing heightened pleading
standards except in those  cases specifically listed in Federal Rule
9(b).10 Rather, "fed-




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n 10 See Leatherman, 507 U.S. at 168 (noting that Rule 9(b) imposes  a
particularity requirement in only two specific instances: fraud and 
mistake); Fed. R. Civ. P. 9(b) ("In all averments of fraud or 
mistake, the circumstances constituting fraud or mistake shall be 
stated with particularity.").


eral courts and litigants must rely on summary judgment and  control of
discovery to weed out unmeritorious claims sooner  rather than later."
Leatherman, 507 U.S. at 168-69; see  Scheuer v. Rhodes, 416 U.S. 232,
236 (1974) ("[I]t may appear  on the face of the pleadings that a
recovery is very remote  and unlikely but that is not the test.");
Krieger, 211 F.3d at  136.


Under Rule 8, all that is required is that "the complaint  give[ ] the
defendants fair notice of each claim and its basis."  Atchinson, 73
F.3d at 422; see Krieger, 211 F.3d at 136. We  have no doubt that
Sparrow's complaint did so. See United  Br. at 3 (acknowledging that
"Sparrow alleged in the amend- ed complaint that he was passed over
for three promotions,  and that he was ultimately discharged by United
because he  is African-American"). Accordingly, we reverse the
dismissal  of plaintiff's section 1981 claims and remand for further 
proceedings consistent with this opinion.