Memon, Iftikhar v. Waukesha County Technical College

Filing 31

ORDER denying defendant's 22 motion to dismiss plaintiff's amended complaint. Signed by District Judge James D. Peterson on 8/27/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

IFTIKHAR AHMED MEMON,

OPINION and ORDER

Plaintiff,

13-cv-704-jdp 1

v.
WAUKESHA COUNTY TECHNICAL
COLLEGE,
Defendant.

Plaintiff Iftikhar Ahmed Memon has brought this action alleging that defendant
Waukesha County Technical College violated Title VII of the Civil Rights Act and the Age
Discrimination in Employment Act by discriminating against him based on his race and his
age when it refused to interview him for a position as an economics instructor three times. 2 In
a March 21, 2014 order, the court concluded that plaintiff’s complaint violated Federal Rule
of Civil Procedure 8 with respect to all of his claims, gave him an opportunity to submit an
amended complaint that corrected these violations, converted defendant’s motion to dismiss
plaintiff’s claims related to his June and September 2012 job applications to a motion for
summary judgment, and ordered plaintiff to show cause why those claims should not be
dismissed. Dkt. 18.

1

This case was reassigned to me pursuant to a May 16, 2014 administrative order. Dkt. 28.

2

Although plaintiff references his gender in his amended complaint, he was not allowed to proceed on
a sex discrimination claim and he has not filed a motion for reconsideration seeking to proceed on such
a claim.

1

Plaintiff responded by filing an amended complaint and materials responding to the
show cause order, although he stated that he wished to limit his claims to his March 2013 job
application. In an April 10, 2014 order, the court concluded that plaintiff’s amended
complaint complied with Federal Rule of Civil Procedure 8 but dismissed all claims regarding
plaintiff’s 2012 applications. Dkt. 21.
Defendant has responded by filing a motion to dismiss plaintiff’s amended complaint.
Dkt. 22, which essentially doubles as a motion asking the court to reconsider the April 10
order concluding that plaintiff’s amended complaint sufficed under Rule 8. Defendant
assumes that plaintiff’s claims rely on the “indirect method” of proving discrimination first
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To make out a prima facie
case for such a claim, a plaintiff must show that: (1) he was a member of the protected class;
(2) he was qualified for the position; (3) he was rejected for the position; and (4) the position
was given to an individual outside the protected class who was similarly situated or less
qualified than he was. Stockwell v. City of Harvey, 597 F.3d 895, 901 (7th Cir. 2010).
Defendant argues that plaintiff has failed to “identify[] any facts from which this Court could
plausibly infer that WCTC acted in a discriminatory manner or was motivated by any
discriminatory animus” but rather “wholly ignores entire elements of a discriminatory failure
to hire claim.” More specifically, defendant states that plaintiff fails to allege:
•

that he was qualified for the economics instructor position;

•

whether defendant ended up hiring a similarly situated person of a different
age or race;

•

his age; or

•

a request for relief that this court can grant.
2

The first three points relate to whether and how much pleading standards have
changed in discrimination cases. Defendant cites to a previous decision of this court, Riley v.
Vilsack, 665 F.Supp.2d 994 (W.D. Wis. 2009) for the propositions that “[i]n the wake of”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)3 and Ashcroft v. Iqbal, 556 U.S. 662
(2009), “with respect to claims brought pursuant to federal discrimination laws, ‘it is not
enough to identify the discriminatory act and the characteristic that prompted the
discrimination’” and that a complaint “‘must include some allegations about each element [of
a claim], or at least allegations from which a court can draw reasonable inferences about each
of the elements.’” Riley, 665 F.Supp.2d at 1002, 1004. Defendant argues that the case should
be dismissed pursuant to Riley because plaintiff ignores the elements regarding the job
qualifications and whether it hired someone of a similarly situated person of a different age or
race.
I conclude that defendant overrelies on the standard discussed in Riley. Following the
Riley decision, the Court of Appeals for the Seventh Circuit has discussed similar issues
regarding Twombly and Iqbal and has come to a conclusion that those cases did not change
pleading standards as much as the Riley decision assumed:
Furthermore, the Supreme Court has made clear that the pleading
standards in Title VII cases are different from the evidentiary burden a
plaintiff must subsequently meet when using the method of indirect proof
under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511 (2002) (explaining that “we have rejected the
argument that a Title VII complaint requires greater ‘particularity,’ because
this would ‘too narrowly constric[t] the role of the pleadings’“) (internal

3

This case stated that the oft-quoted pleading standard in Conley v. Gibson, 355 U.S. 41 45-46 (1957)
(“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”) “has
earned its retirement.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).

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quotations omitted) (brackets in original). “In addition, under a notice
pleading system, it is not appropriate to require a plaintiff to plead facts
establishing a prima facie case because the McDonnell Douglas framework does
not apply in every employment discrimination case.” Id.
While there is some unresolved tension between Swierkiewicz and the
Court’s later decisions in Twombly and Iqbal, we have “affirmed our previous
holdings that, in order to prevent dismissal under Rule 12(b)(6), a complaint
alleging sex discrimination need only aver that the employer instituted a
(specified) adverse employment action against the plaintiff on the basis of her
sex.” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). “In these
types of cases, the complaint merely needs to give the defendant sufficient
notice to enable him to begin to investigate and prepare a defense.” Id. at 1085
(plaintiff sufficiently pled violation of Title VII where she alleged salary
discrepancy and that “she ha[d] been subjected to adverse employment actions
by Defendants on account of her gender”). Neither Iqbal nor Twombly overruled
Swierkiewicz, and it is our duty to apply the Supreme Court’s precedents unless
and until the Supreme Court itself overrules them.
Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013). This court has already
concluded that plaintiff’s allegations about being denied for an interview based on his age
and race are sufficient to state plausible Title VII and ADEA claims, and none of defendant’s
arguments persuade me to rethink that decision.
Regarding plaintiff’s request for relief (he “want[s] from court to cease this college for
good”), defendant is correct that plaintiff is asking for a remedy that is well beyond the scope
of plausible relief for his claims. However, plaintiff’s failure to state a realistic request for
relief at this point is a relatively minor defect, and given his pro se status, does not merit
immediate dismissal, particularly given that plaintiff has responded by identifying new
remedies, which I will construe as a supplement to his amended complaint. See Dkt. 25 at 67. Plaintiff again seeks remedies that are implausible (the termination of various college
employees and his appointment as interim president of the college) but he also requests

4

money damages that are available under both Title VII and the ADEA. Therefore plaintiff
has met his pleading burden, and I will deny defendant’s motion to dismiss.

ORDER
IT IS ORDERED that defendant Waukesha County Technical College’s motion to
dismiss plaintiff Iftikhar Ahmed Memon’s amended complaint, Dkt. 22, is DENIED.
Entered this 27th day of August, 2014.

BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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