Freddie Goode v. Central VA Legal Aid Society
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 3:14-cv-00281-HEH. [999715070]. [14-1939]
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 1 of 24
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1939
FREDDIE L. GOODE,
Plaintiff – Appellant,
v.
CENTRAL VIRGINIA LEGAL AID SOCIETY, INC.,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:14-cv-00281-HEH)
Argued:
September 15, 2015
Decided:
December 9, 2015
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Appeal dismissed and case remanded by published opinion. Senior
Judge Davis wrote the opinion, in which Judge Wynn and Judge
Diaz concurred.
ARGUED: Barbara Allyn Queen, LAWRENCE & ASSOCIATES, Richmond,
Virginia, for Appellant.
Christy E. Kiely, HUNTON & WILLIAMS
LLP, Richmond, Virginia, for Appellee.
ON BRIEF: Ryan A.
Glasgow, HUNTON & WILLIAMS LLP, Richmond, Virginia; Warren David
Harless, E. Ford Stephens, CHRISTIAN & BARTON L.L.P., Richmond,
Virginia, for Appellee.
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 2 of 24
DAVIS, Senior Circuit Judge:
Freddie
Lee
Goode
was
a
Senior
Managing
Attorney
for
Central Virginia Legal Aid Society (“CVLAS”) until CVLAS’s Board
of Directors eliminated Goode’s position in March 2013.
Goode
brought suit against CVLAS, alleging discrimination on the basis
of race, sex, and age.
CVLAS filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) on the ground that
Goode had failed to state a claim upon which relief could be
granted.
The
district
court
granted
the
motion
without prejudice, and Goode timely appealed.
to
dismiss
For the reasons
that follow, we conclude that the order of dismissal was not a
final and appealable order, and we therefore dismiss this appeal
for lack of jurisdiction and remand the case to the district
court with instructions.
I.
A.
Goode,
an
African-American
male,
was
72
CVLAS terminated his employment in March 2013.
CVLAS’s Richmond office for 25 years.
years
old
when
He had worked at
He had begun working for
the organization as an unpaid volunteer in August 1988 and had
held many paid positions with CVLAS since that time.
CVLAS’s
two
Senior
Managing
Attorneys
in
2013,
As one of
Goode
was
responsible for “representing clients in civil matters; drafting
legal documents; and advising clients on their legal rights and
2
Appeal: 14-1939
Doc: 31
remedies,
Filed: 12/09/2015
generally.
[Goode
Pg: 3 of 24
also]
. . .
coordinat[ed]
the
activities of the Social Security, elder law and public benefits
J.A. 8. 1
units[] and supervis[ed] the pro bono hotline.”
Goode
reported to Executive Director Stephen Dickinson, a white male.
Goode
Directors
alleged
had
government
attorney
When
met
on
funding
Board
his
March
and
positions
the
meeting
in
the
within
11,
2013,
CVLAS’s
to
that,
need
position,
due
Board
discuss
organization’s
Goode’s
commented
that
corresponding
the
discussed
allegedly
complaint
to
a
to
of
loss
of
reorganize
three
offices.
someone
Goode’s
in
the
receipt
of
veteran and other benefits, “he would not be impacted as much as
others by the restructuring.”
“[a]s
a
result
employees,
of
including
the
J.A. 9.
restructuring,
Goode,
were
let
Goode averred that,
five
go.”
African
J.A.
American
10.
Each
terminated employee was over the age of 40, and Goode was the
oldest of CVLAS’s nine attorneys at the time and the oldest
CVLAS employee overall.
Goode’s termination was effective on
March 31, 2013.
According
Goode’s
. . .
to
position
cases
at
Goode,
because
the
“CVLAS
claim[ed]
representation
litigation
stage
was
that
for
a
it
Social
service
eliminated
Security
available
through the private bar . . . and . . . the office was going to
1
Citations to the “J.A.” refer to the Joint Appendix that
the parties submitted in this case.
3
Appeal: 14-1939
Doc: 31
concentrate
more
Filed: 12/09/2015
on
family
Pg: 4 of 24
law
cases.”
J.A.
11.
Goode
challenged this rationale in his complaint, asserting that the
availability of private counsel to assist with Social Security
matters was “not the case across the board” and that “there
remained a substantial need for this client service” at CVLAS.
Id.
In seeking to challenge CVLAS’s purported justification for
his
termination
as
pretextual,
Goode
also
described
in
his
complaint the experiences of two other CVLAS employees who had
retained
their
employment
despite
the
restructuring.
Specifically, he discussed Christianne Queiroz, 2 “a much younger,
non African American (Latin[a]) female,” and Martin Wegbreit,
CVLAS’s other Senior Managing Attorney, who is white.
11.
J.A. 9,
Goode alleged that Queiroz was an “attorney” but otherwise
provided
CVLAS.
no
information
J.A. 12.
regarding
her
position
or
duties
at
Goode further alleged that CVLAS had allowed
Queiroz to assume part-time status while continuing to earn the
same salary as she had previously.
As to Wegbreit, Goode averred that he “is substantially
younger,” “has a higher salary,” and “was a similarly-situated
employee to Goode in terms of workload and responsibility within
2
This attorney’s last name is alternately spelled “Queiroz”
and “Quieroz” in the complaint. See, e.g., J.A. 11–12. We use
“Queiroz” because the complaint uses this spelling first.
4
Appeal: 14-1939
Doc: 31
CVLAS.”
J.A.
Filed: 12/09/2015
9.
As
the
Pg: 5 of 24
other
Senior
Managing
Wegbreit was in charge of litigation services.
Attorney,
Goode contended
that CVLAS “used a budget shortfall as an excuse to terminate
Goode while maintaining higher salaries and favorable terms for
Wegbreit and Quieroz [sic].”
Goode
further
J.A. 12.
challenged
the
proposition
that
CVLAS
had
terminated him for financial reasons by explaining that, after
learning of the Board’s decision, Goode had proposed some costsaving measures that CVLAS could have implemented to keep him on
staff, but his supervisor was not amenable to these suggestions.
In rejecting one proposal, Dickinson stated that he could not
institute a 10% pay cut for employees earning over $65,000 per
year because he had already promised raises to all employees and
because two of the attorneys whose salaries would be reduced by
such a plan were single mothers.
Although Dickinson told Goode
“that he could continue with CVLAS in a position supervising the
volunteer lawyer pro bono hotline,” Goode “felt that Dickinson
did not have any intention to keep him at CVLAS.”
J.A. 10.
B.
Goode
brought
suit
against
CVLAS
on
April
17,
2014,
asserting claims for violations of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2012),
42
U.S.C.
§ 1981
(2012),
and
the
Age
Discrimination
Employment Act (“ADEA”), 29 U.S.C. §§ 621–34 (2012).
5
in
He stated
Appeal: 14-1939
in
his
Doc: 31
Filed: 12/09/2015
complaint
that
he
Pg: 6 of 24
“believe[d]
that
CVLAS’s
financial
considerations and their budget cuts were pretext for race, sex,
and age discrimination.” 3
On
July
15,
2014,
J.A. 11.
CVLAS
filed
a
motion
to
failure to state a claim under Rule 12(b)(6).
dismiss
for
The district
court determined that Goode had failed either to present direct
or circumstantial evidence of discrimination or to make out a
prima
facie
case
of
discrimination
under
the
framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
allege
Accordingly, the court stated that “Goode fail[ed] to
sufficient
facts
supporting
his
claim
that
termination was the result of unlawful discrimination.”
v.
Cent.
Va.
Legal
Aid
Soc’y,
No.
3:14cv281-HEH,
3945870, at *6 (E.D. Va. Aug. 12, 2014).
CVLAS’s
motion
and
dismissed
the
case
his
Goode
2014
WL
The court granted
without
prejudice
on
August 12, 2014, concluding that “Goode has failed to state a
3
The district court did not consider Goode’s claim of sex
discrimination because Goode had not presented a separate count
raising this claim.
Goode has since abandoned this claim on
appeal, as he alleges in his opening brief only that “he was
removed from his position due to his race and age.” Appellant’s
Br. 10; see United States v. Washington, 743 F.3d 938, 941 n.1
(4th Cir. 2014) (“Issues that [the appellant] failed to raise in
his opening brief are waived.”).
In part for the same reason,
the district court also disregarded Goode’s ostensible claim
under 42 U.S.C. § 1983, which Goode had listed in the
complaint’s introduction but had not mentioned elsewhere. Goode
has also abandoned this claim on appeal.
6
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 7 of 24
claim for unlawful discrimination under Title VII, 42 U.S.C.
§ 1981, and the ADEA.”
Id. at *7.
Goode filed a timely notice of appeal on September 8, 2014.
For the reasons stated below, we dismiss this appeal for lack of
jurisdiction
and
remand
the
case
to
the
district
instructions to allow Goode to amend his complaint.
court
with
Because we
conclude that we do not have appellate jurisdiction over this
case, we do not reach the merits of the district court’s legal
conclusions.
II.
A.
This
orders,
Court
28
may
U.S.C.
exercise
§ 1291,
jurisdiction
and
certain
only
over
final
interlocutory
and
collateral orders, 4 28 U.S.C. § 1292; Fed. R. Civ. P. 54(b);
Cohen
v.
(1949).
Beneficial
Indus.
Loan
Corp.,
337
U.S.
541,
545–46
An order dismissing a complaint without prejudice is
not an appealable final order under § 1291 if “the plaintiff
4
The district court’s order in this case was not an
immediately appealable interlocutory or collateral order.
See
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)
(recognizing that the collateral order exception renders only a
“small class” of decisions immediately appealable—those that
“conclusively determine the disputed question, resolve an
important issue completely separate from the merits of the
action, and [are] effectively unreviewable on appeal from a
final judgment”).
The relevant question is therefore whether
the district court’s order of dismissal was appealable as a
final order.
7
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 8 of 24
could save his action by merely amending his complaint.”
Domino
Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064,
1066–67 (4th Cir. 1993).
In Domino Sugar, this Court held that
if “the grounds of the dismissal make clear that no amendment
could
cure
the
dismissing
defects
the
appealable.
in
complaint
the
is
plaintiff’s
final
in
case,
fact”
and
the
order
therefore
Id. at 1066 (quoting Coniston Corp. v. Vill. of
Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988)); see Young
v. Nickols, 413 F.3d 416, 418 (4th Cir. 2005).
Likewise, “a
plaintiff may not appeal the dismissal of his complaint without
prejudice unless the grounds for dismissal clearly indicate that
‘no amendment [in the complaint] could cure the defects in the
plaintiff’s case.’”
Domino Sugar, 10 F.3d at 1067 (alteration
in original) (quoting Coniston Corp., 844 F.2d at 463).
We
have
interpreted
Domino
Sugar
to
“require[]
[an
appellate panel] to examine the appealability of a dismissal
without prejudice based on the specific facts of the case in
order
to
appeals.”
Cir.
guard
piecemeal
litigation
and
repetitive
Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th
2005);
appellate
against
see
court
Domino
may
Sugar,
evaluate
10
the
F.3d
at
1066–67
particular
(“[A]n
grounds
for
dismissal in each case to determine whether the plaintiff could
save
his
reaching
action
these
by
merely
amending
case-specific
his
complaint.”).
determinations,
8
“[w]hat
In
makes
Appeal: 14-1939
Doc: 31
[dismissals
Filed: 12/09/2015
without
Pg: 9 of 24
prejudice]
final
or
nonfinal
is
not
the
speculative possibility of a new lawsuit, but that they ‘end the
litigation on the merits and leave nothing for the court to do
but
execute
the
judgment.’”
GO
Comput.,
Inc.
v.
Microsoft
Corp., 508 F.3d 170, 176 (4th Cir. 2007) (quoting MDK, Inc. v.
Mike’s Train House, Inc., 27 F.3d 116, 119 (4th Cir. 1994)).
Notwithstanding this emphasis on the need for case-by-case
determinations, courts considering this issue have established
some guidelines.
For instance, an appellate panel may consider
whether the district court expressly dismissed the “action . . .
in its entirety” or merely dismissed the complaint, as courts
have
generally
appealable.
considered
the
former,
but
not
the
latter,
Chao, 415 F.3d at 345; see also Zayed v. United
States, 368 F.3d 902, 905 (6th Cir. 2004) (“Where an action, and
not merely an amendable complaint (or petition), is dismissed
without
prejudice,
appealable.”).
As
the
this
order
Court
of
dismissal
suggested
in
is
final
Domino
and
Sugar,
however, considering whether the district court merely dismissed
the complaint or expressly dismissed the action as a whole is
essentially one way of determining whether “the grounds of the
dismissal make clear that no amendment could cure the defects in
the
plaintiff’s
case,
[such
that]
the
order
dismissing
the
complaint is final in fact and [appellate jurisdiction exists].”
9
Appeal: 14-1939
10
Doc: 31
Filed: 12/09/2015
at
(second
F.3d
1066–67
Pg: 10 of 24
alteration
in
original)
(quoting
Coniston Corp., 844 F.2d at 463).
Moreover, in cases in which the district court granted a
motion to dismiss on procedural grounds that no amendment to the
pleadings could cure, we have found that the dismissal was final
and appealable.
In Domino Sugar, for instance, we held that the
district court’s order of dismissal based on “failure to exhaust
contractual
amendment
remedies”
to
shortcoming.
that
orders
appealable
the
was
final
complaint
could
10 F.3d at 1067.
of
when
dismissal
cases
unrelated
to
the
dismissed
because
were
cure
this
prejudice
dismissed
of
appealable
because
no
procedural
Likewise, we have determined
without
contents
the
and
the
plaintiffs
for
were
procedural
pleadings,
had
no
final
right
as
to
in
and
reasons
a
bring
case
the
particular causes of action, see GO Comput., Inc., 508 F.3d at
176, and in a case dismissed because the claims were barred by
Heck v. Humphrey, see Young, 413 F.3d at 418.
By contrast, in cases in which the district court granted a
motion to dismiss for failure to plead sufficient facts in the
complaint, we have consistently found, albeit in unpublished,
non-precedential
decisions,
that
we
lacked
appellate
jurisdiction because the plaintiff could amend the complaint to
cure
the
pleading
deficiency.
See,
e.g.,
Shackleford
v.
Riverside Reg’l Med. Ctr., 466 F. App’x 287, 287 (4th Cir. 2012)
10
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 11 of 24
(per curiam) (unpublished) (“Because the deficiency identified
by
the
district
court—that
the
complaint
did
not
assert
sufficient allegations in support of its legal conclusions—may
be
remedied
adequate
by
the
filing
allegations,
neither
a
final
we
order
of
a
complaint
conclude
nor
an
that
that
the
articulates
. . .
is
interlocutory
appealable
order
or
collateral order.”); Hankins v. Ayers, 327 F. App’x 388, 388–89
(4th Cir. 2009) (per curiam) (unpublished); Green v. Booker, 149
F. App’x 140, 141 (4th Cir. 2005) (per curiam) (unpublished);
Sindram v. Raker, 119 F. App’x 528, 529 (4th Cir. 2005) (per
curiam) (unpublished).
We think the time has come to enshrine
this salutary rule in a precedential opinion, and we do so here.
B.
1.
CVLAS argues that the district court’s order granting its
motion to dismiss without prejudice was not appealable because
Goode
could
have
deficiencies
words,
that
CVLAS
appeal.
amended
the
contends
his
complaint
district
that
to
cure
the
pleading
court
In
lack
we
identified.
jurisdiction
other
over
this
We agree.
The district court’s grounds for dismissal did not clearly
indicate
that
complaint,
appealable.
so
no
the
amendment
order
of
could
cure
the
dismissal
was
defects
not
in
the
final
and
To the contrary, the district court stated several
11
Appeal: 14-1939
grounds
Doc: 31
for
amendment.
Filed: 12/09/2015
dismissal,
each
Pg: 12 of 24
of
which
is
readily
curable
by
We consider each in turn.
First, the district court concluded, as to Goode’s race
discrimination claims under Title VII and § 1981, that Goode had
failed
to
present
discrimination
or
discrimination.
requiring
to
or
make
circumstantial
out
a
prima
evidence
facie
of
case
of
Goode argues that the district court erred in
him
to
discrimination
Swierkiewicz
direct
at
v.
establish
prima
pleading
the
a
stage,
Sorema,
N.
A.,
534
facie
case
relying
U.S.
of
race
primarily
506,
508
on
(2002).
Accordingly, we must first consider whether it is appropriate
for
this
Court
to
examine
if
Goode
could
have
amended
the
complaint to meet an allegedly erroneous standard.
2.
Because the relevant jurisdictional inquiry is whether “the
grounds of the dismissal make clear that no amendment could cure
the defects in the plaintiff’s case,” Domino Sugar, 10 F.3d at
1066 (emphasis added) (quoting Coniston Corp., 844 F.2d at 463),
we
conclude
plaintiff
that
could
it
have
is
appropriate
amended
the
to
consider
complaint
to
whether
satisfy
pleading standards that the district court imposed.
a
the
In this
case, a primary ground for the district court’s dismissal of
Goode’s race discrimination claims was Goode’s failure to allege
sufficient facts to present direct or circumstantial evidence of
12
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
discrimination
or
discrimination.
to
Pg: 13 of 24
establish
a
prima
facie
case
of
We therefore analyze whether Goode could have
amended his complaint to cure these supposed pleading defects,
regardless of whether the district court was correct in imposing
these requirements.
Accordingly, we need not determine at this
juncture whether the district court in fact applied an erroneous
legal standard in dismissing Goode’s complaint. 5
Such
an
analysis
serves
to
bolster
smooth operation of the judiciary.
that
§ 1291
preserves
judicial
the
efficiency
and
This Court has recognized
economy
by
ensuring
that
a
district court maintains authority over a case until it issues a
final and appealable order, thus preventing piecemeal litigation
and repeated appeals.
10
F.3d
at
1067.
See Chao, 415 F.3d at 345; Domino Sugar,
If
a
plaintiff
were
able
to
appeal
an
otherwise unappealable order of dismissal by contending that the
district court had applied an erroneous standard, the plaintiff
would seemingly be able to bypass the amendment process in the
5
For purposes of this jurisdictional inquiry, we therefore
assume without deciding that the district court applied the
correct legal standards in assessing the motion to dismiss. As
such, our discussion of the pleading standards employed by the
district court should not be read to indicate that we would hold
that the district court’s analysis was free from error were we
to consider this issue on the merits. Cf. SD3, LLC v. Black &
Decker (U.S.) Inc., 801 F.3d 412, 441 (4th Cir. 2015) (“Iqbal
and Twombly do not require a plaintiff to prove his case in the
complaint.” (quoting Robertson v. Sea Pines Real Estate Cos.,
Inc., 679 F.3d 278, 291 (4th Cir. 2012))).
13
Appeal: 14-1939
Doc: 31
district
Filed: 12/09/2015
court
and
Pg: 14 of 24
autonomously
render
the
order
appealable,
largely defeating the purpose of § 1291.
Moreover,
argument
allowing
that
the
appellate
district
jurisdiction
court
had
to
applied
rest
an
on
an
improper
standard would paradoxically require this Court to assess the
merits
of
a
district
court’s
decision
in
order
to
determine
whether we have jurisdiction to do so—putting the cart before
the horse.
his
We thus consider whether Goode could have amended
complaint
to
cure
the
defects
that
the
district
court
identified—including his failure to make out a prima facie case
of
discrimination—rather
than
considering
whether
Goode
could
have amended his complaint to satisfy some other legal standards
that the district court did not impose.
C.
1.
To
under
establish
a
McDonnell
“(1) membership
performance;
treatment
prima
Douglas,
in
a
protected class.”
a
protected
(3) adverse
from
facie
case
race
plaintiff
class;
employment
similarly
of
situated
discrimination
must
demonstrate
(2) satisfactory
action;
and
employees
job
(4) different
outside
the
Coleman v. Md. Court of Appeals, 626 F.3d
187, 190 (4th Cir. 2010), aff’d sub nom. Coleman v. Court of
Appeals of Md., 132 S. Ct. 1327 (2012) (citing White v. BFI
Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)).
14
Here,
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 15 of 24
the district court determined that the complaint did not provide
sufficient
factual
allegations
to
show
that
Goode’s
job
performance was satisfactory at the time of his termination or
that
CVLAS
treated
Goode
differently
than
similarly
situated
employees outside the protected class.
We conclude that Goode could have amended his complaint to
add
factual
allegations
district
court’s
instance,
Goode
order
could
to
satisfy
these
not
indicate
did
have
provided
standards,
and
otherwise.
facts
to
the
For
support
his
allegation that he had “always met or exceeded the performance
expectations
of
CVLAS.”
J.A.
9.
He
could
have
referenced
positive feedback or performance reviews that he had received
from his CVLAS supervisor since 2009—the year that, according to
the district court, Goode’s allegations last suggested that he
had performed satisfactorily.
Likewise, Goode could have presented factual allegations to
support his assertions that the other Senior Managing Attorney,
Martin Wegbreit, “was a similarly-situated employee to Goode in
terms of workload and responsibility within CVLAS,” id., and
that
Wegbreit
Goode
could
received
have
more
amended
favorable
his
treatment
complaint
to
than
include
Goode.
facts
demonstrating the similarities between his workload and that of
Wegbreit, perhaps clarifying why Wegbreit’s higher salary and
15
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 16 of 24
his responsibilities as the attorney in charge of litigation did
not belie Goode’s claim that the two were similarly situated.
The district court also based its order of dismissal on its
determination
that
Goode
had
failed
to
set
forth
facts
indicating that CVLAS “did not treat . . . race neutrally when
making its decision.”
Goode, 2014 WL 3945870, at *6 (alteration
in original) (quoting Causey v. Balog, 162 F.3d 795, 802 (4th
Cir. 1998)).
In other words, the court concluded that Goode did
not state a plausible claim that CVLAS discriminated against him
because of his race.
Goode’s
allegations
In doing so, the court determined that
impliedly
conceded
that
CVLAS’s
purported
financial reasons for his termination were at least partially
true,
and
the
court
thus
ple[d] himself out of court.”
Again,
these
are
concluded
that
“Goode
essentially
See id. at *4.
precisely
the
kinds
of
pleading
deficiencies that amendment to the complaint could have cured,
and the order of dismissal did not preclude this remedy; to the
contrary,
amendment.
a
dismissal
without
prejudice
invites
such
an
Goode could have rectified the apparent defects by
presenting factual allegations to demonstrate why he believed
that his termination had been racially motivated and, perhaps
more importantly, to show why CVLAS’s purported justifications
were
pretextual,
thus
bolstering
his
claim
that
intentionally discriminated against him based on race.
16
CVLAS
had
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 17 of 24
Goode could also have responded to the district court’s
observation that he had apparently “ple[d] himself out of court”
by amending his complaint to clarify that he was not conceding
that CVLAS’s alleged financial reasons for his termination were
true.
A
plaintiff
who
wishes
to
amend
a
complaint
is
not
limited merely to adding allegations to the original pleadings;
rather, the plaintiff may remove or, plainly, amend the original
allegations by filing an amended complaint. 6
That is to say,
even if Goode’s complaint contained allegations that rendered
his claims of discrimination facially untenable, amendment to
the complaint could have cured this defect.
As the district
court’s dismissal of the original complaint without prejudice
plainly
anticipated,
pleading
a
plausible
claim
of
race
discrimination hardly involves heavy lifting.
6
See Staggs v. Doctor’s Hosp. of Manteca, Inc., No. 2:11cv-00414-MCE-KJN, 2015 WL 6951759, at *3 (E.D. Cal. Nov. 10,
2015) (recognizing that case law “does not forbid a plaintiff
from changing or deleting previously pled factual allegations in
an amended complaint”); cf. Scott v. Chuhak & Tecson, P.C., 725
F.3d 772, 783 (7th Cir. 2013) (“[W]here the original complaint
and an amended complaint contain contradictory or mutually
exclusive claims, only the claims in the amended complaint are
considered; the contradicted claims in the original complaint
are knocked out.”).
But cf. United States v. McKeon, 738 F.2d
26, 31 (2d Cir. 1984) (noting that the original admission of a
litigant who amends the pleadings to replace one version of the
facts with another is admissible at trial).
17
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 18 of 24
2.
Finally, the district court concluded that Goode had also
failed to allege a plausible claim of discrimination based on
age.
The
court
discrimination
explained
under
the
that
to
ADEA,
present
a
a
claim
plaintiff
of
must
age
allege
“membership in a protected class, satisfactory job performance,
and adverse employment action,” id. at *6 (citing Causey, 162
F.3d at 802), as well as facts establishing that the plaintiff
was
“replaced
comparable
by
someone
outside
qualifications,”
id.
the
As
protected
in
the
class
context
of
with
race
discrimination, the court determined that Goode had not pled
sufficient facts demonstrating his satisfactory job performance
at the time of his termination.
that
Goode
had
failed
to
plead
Further, the court concluded
facts
showing
that
he
was
replaced by someone outside the protected class; in fact, the
court
construed
Goode’s
allegations
to
indicate
that
“his
position and some of his job duties were eliminated” such that
he was “not replaced, let alone by someone outside the protected
class.”
Id.
Again, it is clear to us that the district court’s order
did not prevent Goode from amending his complaint to correct
these supposed pleading deficiencies.
Goode could have cured
the
of
sufficient
job
performance—through
first
allegations
alleged
defect—the
demonstrating
lack
satisfactory
18
factual
Appeal: 14-1939
Doc: 31
amendment,
as
Filed: 12/09/2015
discussed
Pg: 19 of 24
above.
As
to
the
second
alleged
shortcoming—failure to satisfy the fourth element of a prima
facie case of age discrimination—the court similarly did not
“make clear” that Goode could not have amended his complaint to
allege that he was replaced by someone outside the protected
class.
The district court’s order stated that “Goode does not
allege he was replaced by anyone at all,” id. (emphasis added),
but it did not indicate that Goode could not have done so, or,
of
equal
import,
that
he
could
not
allege
his
dispersed to remaining, younger former colleagues.
duties
were
Instead, the
district court drew the inference from Goode’s allegations that
he was not replaced by anyone, and it thus concluded that “Goode
fail[ed]
to
allege
sufficient
facts
resulted from age discrimination.”
Id.
that
his
termination
The district court’s
order therefore did not clearly preclude Goode from amending his
complaint to correct any pleading inadequacy.
In this regard, while Goode’s complaint “acknowledges that
his position and some of his job duties were eliminated,” id.,
the district court’s order did not preclude Goode from otherwise
establishing a prima facie case under the ADEA.
possible,
amended
CVLAS
for
instance,
complaint
had
with
distributed
that
Goode
factual
some
could
allegations
of
Goode’s
It is certainly
have
submitted
demonstrating
job
duties
an
that
to
substantially younger employees, thus establishing a prima facie
19
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 20 of 24
case through an alternate route.
F.
App’x
91,
determined
94–95
before
(4th
that
a
Cir.
See Duffy v. Belk, Inc., 477
2012)
transfer
(unpublished)
of
some
of
a
(“We
have
terminated
plaintiff’s duties to younger workers is sufficient to satisfy
the
fourth
element
discrimination.”).
clear
that
dismissal.
no
of
a
prima
facie
case
of
age
Accordingly, the district court did not make
amendment
could
have
cured
the
grounds
for
Because Goode could have amended his complaint, the
district
court’s
order
prejudice
is
and
not,
dismissing
should
not
be
the
complaint
treated
as,
without
final
and
appealable.
D.
It puzzles us that, for his part, Goode repeatedly asserts
that he “was not afforded the ability to amend his complaint,”
Appellant’s Br. 49, and that, because “the [district court] did
not allow Goode to amend his Complaint in the decision, the
Order should be treated as a final order and this Court should
have jurisdiction over this matter,” Appellant’s Reply Br. 16–
17.
This argument flips the relevant standard on its head.
A
district court’s decision is not final and appealable merely
because the court did not affirmatively state that the plaintiff
could have amended the complaint; rather, we may only exercise
appellate jurisdiction where a district court’s order clearly
indicates that amendment to the complaint could not cure the
20
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
complaint’s defects.
litigant
may
not
dismiss
an
“without
inadequacies
See Domino Sugar, 10 F.3d at 1066.
presume
order—particularly
that
Pg: 21 of 24
the
order
finality
expressly
prejudice”
could
of
be
on
district
granting
the
rectified
a
a
basis
with
A
court’s
motion
of
little
to
pleading
effort
by
amendment.
Moreover, Goode’s argument that he “was not afforded the
ability
to
amend
his
complaint,”
Appellant’s
Br.
49,
rings
hollow, as he never attempted to amend his complaint and never
sought leave to do so (even assuming he needed to seek leave
after a dismissal without prejudice of the original complaint).
Had he sought leave to amend, the district court surely would
have
granted
this
motion,
given
the
liberal
standard
that
governs a request to amend a complaint under Federal Rule of
Civil Procedure 15(a)(2). See Fed. R. Civ. P. 15(a)(2) (“The
court
should
freely
give
leave
when
justice
so
requires.”);
Foman v. Davis, 371 U.S. 178, 182 (1962); Galustian v. Peter,
591 F.3d 724, 729 (4th Cir. 2010) (“It is this Circuit’s policy
to
liberally
allow
amendment
in
keeping
with
Federal Rule of Civil Procedure 15(a).”).
barred
from
amending
his
complaint
the
spirit
of
Goode also was not
by
any
statute
of
limitations, as an amended complaint would have related back to
the date that the original complaint had been filed.
See Fed.
R. Civ. P. 15(c)(1)(B) (“An amendment to a pleading relates back
21
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 22 of 24
to the date of the original pleading when: . . . the amendment
asserts
a
claim
or
defense
that
arose
out
of
the
conduct,
transaction, or occurrence set out—or attempted to be set out—in
the original pleading.”).
Similarly, Goode’s decision not to amend the complaint did
not itself render the order of dismissal final and appealable.
To
be
sure,
appellate
we
recognized
jurisdiction
may
in
Chao
consider
that
a
whether
court
a
assessing
plaintiff
has
chosen to “stand on the complaint,” treating the order as final
and appealable rather than seeking amendment in the district
court.
See 415 F.3d at 345.
As part of its case-specific
jurisdictional analysis, the Court in Chao considered such a
decision by the plaintiff-appellant, and the Court ultimately
concluded that it had appellate jurisdiction in that case.
Id.
at 345–46.
Yet Chao does not stand for the general proposition that a
plaintiff
may
single-handedly
choose
not
render
to
an
amend
order
appealable under all circumstances.
a
complaint
of
dismissal
in
order
final
to
and
As we explained above, it
is the province of the district court—not of the party seeking
an appeal—to indicate that an order is final and appealable.
Chao
also
involved
a
unique
set
of
facts
significantly from those in the case before us.
that
differ
In Chao, the
Secretary of Labor appealed the district court’s dismissal of
22
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 23 of 24
her action against various defendants for violations of the Fair
Labor
Standards
contended
“that
complaints
Act.
she
Id.
must
throughout
at
be
the
343.
able
Because
to
employ
country
for
the
Secretary
similarly-worded
consistency,”
she
“elect[ed] to stand on the complaint presented to the district
court.”
Id. at 345.
In doing so, “the Secretary . . . waived
the right to later amend . . . thus protect[ing] against the
possibility of repetitive appeals that concerned [this Court] in
Domino Sugar.”
The
Id.
Court
assurances
of
in
the
Chao
therefore
Secretary
of
considered
Labor
that
the
the
weighty
objectives
of
Domino Sugar and § 1291 would best be served by the Court’s
exercise of appellate jurisdiction in that case, particularly in
light of the institutional interests of the Executive Branch.
Goode, by contrast, cannot and does not attempt to make these
assurances, and he does not seek to vindicate such institutional
interests.
Goode’s failure to seek leave to amend the complaint
thus does not favor appealability of the district court’s order
of dismissal.
Goode
also
contends
that
we
have
appellate
jurisdiction
based on the proposition that an order dismissing an action in
its
entirety
imputes
rather
greater
than
finality
one
and
dismissing
therefore
only
favors
the
complaint
appealability.
Indeed, the district court’s order does state that “Defendant’s
23
Appeal: 14-1939
Doc: 31
Filed: 12/09/2015
Pg: 24 of 24
Motion to Dismiss is granted and the case is dismissed without
prejudice.”
Goode, 2014 WL 3945870, at *7 (emphasis added).
Nevertheless,
we
see
no
indication
that
the
district
court
intended for its use of the word “case” rather than “complaint”
to hold any special meaning or for it to signify any particular
finality, especially in light of the court’s express statement
that
the
dismissal
was
“without
prejudice”—a
phrase
that
generally indicates that a court’s decision is not final.
Given the emphasis in this Circuit’s governing precedent on
case-by-case
review,
court’s
of
use
determinative,
appealability.
the
or
we
are
word
even
unconvinced
“case”
highly
Rather,
the
rather
that
than
probative,
proper
inquiry
the
district
“complaint”
of
is
the
is
order’s
whether
the
district court’s grounds for dismissal clearly indicate that no
amendment could cure the complaint’s defects.
We hold that the
grounds
clearly
for
amendment.
dismissal
in
Accordingly,
this
we
case
lack
did
not
jurisdiction
to
preclude
review
the
district court’s decision.
III.
For the foregoing reasons, we dismiss this appeal for lack
of jurisdiction and remand the case to the district court with
instructions to allow Goode to amend his complaint.
DISMISSED AND REMANDED
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?