Back in February, I noted that a motion to dismiss in federal court — while still difficult to achieve — still had a pulse.  That’s important for employers because it provides a mechanism for getting rid of frivolous claims early on with lower costs than federal lawsuits typically cost.

A new district court case gives another example of how employers can use a motion to dismiss and illustrates what type of case is ripe for such a motion.

In Davis v. Norwalk Economic Opportunity Now, Inc. (NEON), the plaintiff alleged retaliation. But the extent of her allegations of retaliation consisted of the following:

On or about May 04, 2010, and continuing until August 20, 2010, the Defendant began discriminating against the Plaintiff by harassing her, issuing discipline to her, and eventually discharging her from employment, at least in part, because she opposed a discriminatory practice of the Defendant in harassing a fellow employee on account of the employee’s race (African American) and ancestry (African) in violation of 42 U.S.C. Sec. 2000e(3)(2010).

On its face, it might seem like enough — after all, she cites to a specific statute. But the court said that something more than a conclusory assertion is required; some facts are required too.

Left unstated are crucial facts supporting Ms. Davis’s claim — facts to which someone in Ms. Davis’s position surely must have access.  Whose treatment did Ms. Davis complain about, and when, and to whom? How did NEON respond? In what ways was Ms. Davis herself harassed and disciplined? Was there a connection between Ms. Davis’ complaints and her subsequent treatment? Were the two events close in time? Did they involve the same people?

In so doing, the court provides a roadmap as to what a plaintiff alleging retaliation should claim.  The court went on to add that it was not ruling that “any one of these questions must necessarily be addressed” to survive a motion but the absence of “any such detail” leaves it open to such a motion.

The court also indicated that the “deficiency” is “even more notable given the fact that Ms. Davis is represented by counsel”.  While pro se plaintiffs may be held to less stringent standards, “it necessarily follows that a complaint — such as Ms. Davis’s — drafted by a lawyer must be held to more stringent standards….”  Even so, the court provided the plaintiff with another opportunity to draft a complaint that complied with the rules.

What’s the Takeaway for Employers? In federal court, motions to dismiss should still only be considered a long shot.  But cases like this show that in limited circumstances, it is a shot worth taking.