Swierkiewicz v. Sorema Motion for Leave to File and Brief Amicus Curiae in Support of Petitioner

    No. 00-1853

In The
#upm ur Court of tlje llntteii States

Akos Swierkiewicz,
Petitioner,

v.

SOREMA, N.A.,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals for the Second Circuit

M O TIO N  F O R  LEA V E T O  F IL E  AND 
B R IE F  O F T H E  NAACP L E G A L  D E FE N SE  AND 

ED U CA TIO N A L FUND, IN C. AS AMICUS CURIAE 
IN SU PPO R T O F  P E T IT IO N E R

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
James L. Cott 

*Robert H. Stroup 
Naacp Legal Defense and 
Educational Fund, Inc . 

99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2200 

* Counsel o f Record 
Attorneys for Amicus Curiae 

Dated: November 16, 2001



MOTION OF NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. FOR LEAVE TO FILE 

BRIEF AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc. 
(“L D F ’) moves this Court pursuant to Supreme Court Rule 
37.1(b) for leave to file an amicus curiae brief in support of the 
petitioner in this action. Consent has been sought from both 
parties for the filing of this brief, and petitioner’s counsel has 
consented. Respondent’s counsel has not replied to telephone 
requests and letters seeking consent for the filing of this brief.

Interest of Amicus

The NAACP Legal Defense and Educational Fund, Inc. 
is a non-profit corporation established under the laws of the 
State of New York. It was formed to assist African Americans 
in securing their constitutional rights through the prosecution of 
lawsuits and to provide legal services to black persons suffering 
injustice by reason of racial discrimination. For six decades 
LDF attorneys have represented parties in litigation before this 
Court and the lower courts involving race discrimination and 
particularly discrimination in employment.

LDF attorneys have had substantial experience in private 
enforcement of claims arising under Title VII of the Civil 
Rights Act of 1964. LDF believes that its experience in, and 
knowledge gained from, such litigation will assist the Court in 
this case.

WHEREFORE, for the foregoing reasons, LDF prays 
that this Court will allow the filing of its brief as amicus curiae 
in this action in support of petitioner.



2

Respectfully submitted,

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
James L. Cott 

♦Robert H. Stroup 
NAACP Legal Defense and 
Educational Fund, Inc .

99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2200

*Counsel o f Record

Attorneys for proposed Amicus Curiae

Dated: November 16, 2001



1

Table of A uthorities.................................................................... ii

Interest of Amicus......................................................................... 1

Summary of Argum ent................................................................ 1

ARGUMENT —

In Light of Barriers to Pre-Complaint Discovery 
in Employment Discrimination Cases, Adoption 
of the Second Circuit’s Fact-Pleading Rule 
Would Foreclose Access to the Courts for 
Redress of Meritorious Claims ...................................3

A. Before the Filing of an Employment
Discrimination Complaint, Employers 
Have Virtually Exclusive Control Over 
Information Necessary to Establish the 
Elements o f a Prima Facie C a s e ....................4

B. Ethics Rules Also Place Limits on
Plaintiffs’ and Their Counsels’ Ability 
to Obtain Specific Facts in Support of a 
Prima Facie Case Prior to Filing a 
Com plaint............................................................8

C. The Second Circuit’s Fact-Pleading
Rule Conflicts with or Is Unnecessary 
in Light of Other Provisions of the 
Federal Rules of Civil Procedure..................10

TABLE O F  CONTENTS

Page



11

Conclusion................................................................................... 12

TABLE OF AUTHORITIES

Cases:

Bonger v. American Water Works,
789 F. Supp. 1102 (D. Colo. 1 9 9 2 ) .........................  7n

Brown v. Federation of State Medical Boards 
of the United States,

830 F.2d 1429 (7th Cir. 1987), abrogated 
by Mars Steel Corp. v. Continental Bank 
N.A., 880 F.2d 928 (7th Cir. 1 9 8 9 ) ............................ 12

Brown v. Oregon Dep’t of Corrections,
173 F.RD. 265 (D. Or. 1997) .....................................9

Carter-Hemum v. City o f Philadelphia,
897 F. Supp. 899 (EX). Pa. 1995) ............................ 10

Christiansburg Garment Co. v. EEOC.
434 U.S. 412 (1978)..................................................... 12

ConLty v. Gibscrt.
355 U S. 41 ................................................ 2. 10u

TABLE OF CONTENTS (continued)

Page

CJUg*UR: v. Lore,
' - c  ?  2c -. 52 5* C:r -m  ;



Ill

Cases (continued):

EEOC v. City of Milwaukee,
54 F.’Supp. 2d 885 (E.D. Wis. 1999)....................  6, 7

EEOC v. City of Milwaukee,
919 F. Supp. 1247 (E.D. Wis. 1 9 9 6 ) .........................7

EEOC v. Morgan Stanley,
132 F. Supp. 2d 146 (S.D.N.Y. 2 0 0 0 ) .................. 6, 7

Forbes v. Merrill Lynch, Fenner & Smith, Inc.,
179 F.R.D. 107 (S.D.N.Y. 1998), vacated 

sub nom. Nuwesra v. Merrill Lynch,
Fenner & Smith, Inc., 174 F.3d 87
(2d Cir. 1999) ........................................................  11

Ford v. Veterinary Centers o f America, Inc.,
2001 U.S. Dist. LEXIS 15914 (E.D. Pa.

September 13, 2 0 0 1 ) .............................................  4n

Frey v. Department of Health & Human Serv.,
106F.R.D. 32 (E.D.N.Y. 1 9 8 5 ).............................  4-5

Fumco Constr. Corp. v. Waters,
438 U.S. 567 (1978)........................................................4

Gartenbaum v. Beth Israel Medical Center,
26 F. Supp. 2d 645 (S.D.N.Y. 1 9 9 8 ) ......................  11

TABLE O F A U TH O RITIES (continued)

Page



IV

Cases (continued):

Hamilton v. l a Source Bank,
895 F.2d 159 (4th Cir.), rev’d en banc,

928 F.2d 86 (4th Cir. 1 9 9 0 ) .................................... 5

Herrera v. Mobil Oil Co.,
1990 U.S. Dist. LEXIS 11082. at *5-*6

(W D . Tex. August 17, 1 9 9 0 ) ................................. 6

Hill v. S i Louis Univ.,
123 F J d  1114 (8* Cir. 1997).......................................9

I'xsczdfcnrt o f North America, Inc. v. Midwest 
Ptpeimer% htc..

13- FJRJ>. 622 (S.D. Ofco 1 9 9 1 ) ............................... 9

Sjvenv it Murvrr..
.............................4

X XaWSC*.
^  2a. \cv. tS 2  305 SB-Tcr 'JS? 5

. ~ar'um Corner Xsrtzwja  nm ffQ inT

5^9>4 | ^ .  jHEfcjW fru____.  .  .  . .  .  .  r . S i

c4%i. I 25*fk x  3 « w *  - 2>r . .
'  n  .  r

TABLE O F AU THO RITIES (continued)

Page



V

Cases (continued):

Mesnickv. General Elec. Co.,
950 F.2d 816 (1st Cir. 1 9 91 )......................................12

Mullin v. Raytheon Co.,
164 F.3d 696 (1st Cir. 1 9 9 9 )...................................... 12

NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 2 1 4 (1 9 7 8 )...................................................  8n

Palmer v. Pioneer Inn Associates, Ltd.,
257 F.3d 999 (9th Cir. 2 0 0 1 )..........................................9

Palmer v. Pioneer Inn Associates, Ltd.,
19 F. Supp. 2d 1157 (D. Nev. 1998) ....................  8-9

Scheuer v. Rhodes,
416 U.S. 2 3 2 (1 9 7 4 )................................................... lOn

Stanford v. President and Fellows of Harvard College,
No. 99-4042 (Super. Ct. Mass. March 21,

2001) .....................................................................  9n

Stanford v. President and Fellows of Harvard College,
2000 Mass. Super. LEXIS 489 (Super. Ct.

Mass. Nov. 1, 2000), appeal pending, No. 
SJC-08592 (Sup. Jud. Ct. Mass.) ............................9

Swierkiewicz v. Sorema,
2001 WL 246077 (2d Cir. March 12, 2001) ...........3

TA BLE O F A U TH O RITIES (continued)

Page



VI

Cases (continued):

Teamsters v. United States,
431 U.S. 324 (1977)........................................................4

Terra Int’l v. Mississippi Chem. Corp.,
913 F. Supp. 1306 (N.D. Iowa 1996)......................... 9

Texas Dep ’t of Community Affairs v. Burdine,
450 U.S. 248 (1981)........................................................4

United States Postal Serv. v. Aikens,
460 U.S. 711 (1983)........................................................3

Weahkee v. Norton,
621 F.2d 1080 (10th Cir. 1980)...............................  5, 6

Wright v. Wright v. Group Health Hosp.,
691 P.2d 564 (Wash. 1 9 8 4 ) ...........................................5

Statutes'.

5US.C. § 552a(bXll).......................................................5,

42 U .S .C  § 2000e-9.................................................................. 7n

Md. Code Arm.. Stale Gov’t. § 10-616(1) ...........................6

Miss. Code Ann. § 25-1-100 ..................................................... 6

TABLE OF AU THO RITIES (continued)

Page



Statutes (continued):

N.C. Gen. Stat. § 126-22 ..........................................................6

Tex. Gov’t Code Ann. § 552.102.............................................5

Rules:

Fed. R. Civ. P. 1 ......................................................................... 11

Fed. R. Civ. P. 1 1 .......................................................................10

Fed. R. Civ. P. 3 7 .........................................................................6

Fed. R. Civ. P. 5 6 .......................................................................11

Other Authorities:

ABA Model Rules of Professional Conduct,
Rule 4.2 .......................................................................lOn

ABA Model Code of Professional Responsibility,
Disciplinary Rule 7 -1 0 4 .............................................lOn

vii

TABLE OF AUTHORITIES (continued)

Page



BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE 

IN SUPPORT OF PETITIONER1

Interest of Amicus

The NAACP Legal Defense and Educational Fund, Inc. 
(“L D F ’) is a non-profit corporation established under the laws 
of the State of New York. It was formed to assist black persons 
in securing their constitutional rights through the prosecution 
of lawsuits and to provide legal services to black persons 
suffering injustice by reason of racial discrimination. For six 
decades LDF attorneys have represented parties in litigation 
before this Court and the lower courts involving race 
discrimination and particularly discrimination in employment. 
LDF believes that its experience in, and knowledge gained 
from, such litigation will assist the Court in this case.

Summary of Argument

The Second Circuit’s heightened pleading rule in this 
case fails to consider the many practical and legal restrictions 
upon informal pre-complaint discovery in employment 
discrimination cases. These restrictions include federal and 
state laws prohibiting a prospective plain tiffs access to 
personnel files and related records as well as widespread 
employer practices treating many personnel matters as 
confidential. These matters include documents providing 
salary information, performance evaluations, employee 
resumes, job descriptions, promotion criteria and management 
guidebooks, among others. These materials would need to be 
available in order for a plaintiff to satisfy the burden that the 
Second Circuit has imposed in this case.

1 N o counsel for any party authored this brief in whole or in part, 
and no person or entity other than amicus made any monetary contribution 
to the preparation or submission o f this brief.



2

These restrictions also include stare ethical rules which, 
ffi many jurisdictions, place limits on the ability o f a 
prospective ptonrifTs counsel to interview decision-makers 
m e potential witnesses employed by corporate defendants. 
These ethical rules restnet contacts by piainriff s counsel and 
pusoinffs actang at the direction of their counsel when an 
empiioyer 3  represented by an attorney. Seme j n s & t k n s  
ta-.e talexprcted their “oo-coctacr-  rules broadly to forind 
access to "-trtuaih any potential witness in an emrlmment

As a consequence of these rcstnctioK , in HS2EV 
^stances em pkm nent ischrm nahon rlamtafts and h e r  
ununse-1 raise Isxie mrermazen prior to irlmn me o o a p fa a t  
: er m e aoc’-'e mat scmcient to put the defendant cu notice of 

ms pursuant to the start-cards of Cattle'; v. Gibsam, 355 
anc its progeny. Adoption of me Second 

c mnmt s : act-meaning ru e  would effect:' eh  foreclose recourse 
-- -~e ooerts:o those plaintiffs who lack access, rr tc r  to formal 
hsccwrery. to me dccumeais that show a x a p a n tn e  r e a m e r :  

cere: employees, and to the w;messes who were deenstetr- 
or ccherv. ce rac. krv’-'. ledge recardmu me r e a m e r :  of 

ooisparacie epaptcyeesc



3

ARGUMENT

IN LIGHT OF BARRIERS TO PRE-COMPLAINT 
DISCOVERY IN EMPLOYMENT DISCRIMINATION 
CASES, ADOPTION OF THE SECOND CIRCUIT’S 
FACT-PLEADING RULE WOULD FORECLOSE 
ACCESS TO THE COURTS FOR REDRESS OF 

MERITORIOUS CLAIMS

The Second Circuit’s decision in this case requires the 
plaintiff in an employment discrimination case2 to plead “facts 
upon which a court could find a violation of the Civil Rights 
Acts.” Swierkiewicz v. Sorema, N.A., 2001 WL 246077 at *1 
(2d Cir. March 12, 2001) (No. 00-9010). In order to survive a 
motion to dismiss, the Second Circuit requires that a plaintiff 
plead facts in support of each of the McDonnell-Douglas 
elements of a prima facie case. This pleading requirement 
includes facts regarding “qualification for the job in question” 
and “the circumstances giving rise to an inference” of 
discrimination. Swierkiewicz, 2001 WL 246077 at *2.

The Second Circuit’s decision ignores the practical 
difficulties such a test would impose upon plaintiffs and their 
counsel in employment discrimination cases, and if affirmed, 
would effectively foreclose the filing of numerous meritorious 
claims. The Second Circuit failed to recognize that in many 
instances prior to formal discovery, a plaintiff does not know 
many of the central facts of the case. This is because these 
central facts often require comparison of plaintiffs treatment 
to that of similarly situated members of the non-protected class. 
United States Postal Serv. v. Aikens, 460 U.S. 711,715 (1983) 

(“The ‘factual inquiry’ in a Title VII case is ‘[whether] the 
defendant intentionally discriminated against the plaintiff . . .

2 The plaintiff in this case alleged both national origin and age 
discrimination.



4

[citing Texas Dep ’t o f Community Affairs v. Burdine, 450 U.S. 
248,253 (1981)]. In other words, is ‘the em ployer. . .  treating 
“some people less favorably than others because of their race, 
color, religion, sex, or national origin.’” Fumco Constr. Corp. 
v. Waters, 438 U.S. 567, 577 (1978), quoting Teamsters v. 
United States, 431 U.S. 324, 335, n. 15 (1977)”).3

A. Before the Filing of an Employment Discrimination
Complaint, Employers Have Virtually Exclusive 
Control Over Information Necessary to Establish 
the Elements of a Prima Facie Case

At the outset of an employment discrimination case, the 
employer has essentially exclusive control over all of the 
relevant information required to establish the elements of a 
prima facie case. As one district court recently observed:

[UJnlike plaintiffs outside the employment context, all 
the relevant action takes place in a setting controlled by 
the employer. While other plaintiffs can conduct an 
informal investigation to shape their theories —  for 
example, interview the witnesses to the accident, talk to 
the participants, determine the strategy out of earshot of 
his opponents — this Plaintiff must stand at the 
employer’s door and seek permission to enter.

Kaveney v. Murphy, 97 F. Supp. 2d 88,89 (D. Mass. 2000); see 
also Frey v. Department of Health & Human Serv., 106 F.R.D.

3 Even “qualifications for the job in question” may not be known 
prior to discovery, as qualification is often a relative concept, requiring 
information regarding an employer’s own interpretation or application o f its 
job requirements. See, e.g.. Ford v. Veterinary Centers of America, Inc., 
2001 U.S. Dist. LEXIS 15914, at *11 (E.D. Pa. September 13, 2001) (No. 
00-4604) (while plaintiff acknowledged that she failed to meet 20-25% o f  
the published job qualifications, evidence suggested that the person selected 
was even less qualified.).



5

32, 37 (E.D.N.Y. 1985) (discussing “need of the adverse 
attorney for information which may be in the exclusive 
possession of the [organization] and may be too expensive or 
impractical to collect through formal discovery”) (quoting 
Wright By Wright v. Group Health Hosp., 691 P.2d 564, 568 
(Wash. 1984)).

In many situations, facts central to plaintiffs claims are 
contained within the personnel files of the employer —  under 
the employer’s control and unavailable to the plaintiff prior to 
formal discovery. Coughlin v. Lee, 946 F.2d 1152, 1159 (5th 
Cir. 1991) (noting that personnel files “could be central to the 
plaintiffs’ effort to prove pretext,” and may be in the “exclusive 
control of the opposing party”); Weahkee v. Norton, 621 F.2d 
1080, 1082 (10* Cir. 1980) (acknowledging that personnel file 
materials reflecting qualifications and job performance are 
frequently “at the heart of [the] controversy”).

Frequently, information in personnel files is protected 
by statutory protections of privacy. See, e.g., 5 U.S.C. § 
552a(b)(ll) (prohibiting the release of federal employee 
personnel files under Privacy Act without a court order); Tex. 
Gov’t Code Ann . § 552.102 (exempting from Texas Open 
Government Act information in employee’s personnel file); 
Kobeck v. Nabisco, Inc., 166 Ga. App. 652, 653, 305 S.E.2d 
183,185 (1983)(acknowledging“thatanem ployee’spersonnel 
file is generally considered confidential”).

Employers routinely treat as confidential most 
personnel documents that are relevant to discrimination claims. 
For example, many employers treat salary data as confidential, 
see Hamilton v. 1st Source Bank, 895 F.2d 159, 164 (4* Cir.) 
(“[N]ormal and prudent American business practice is to 
discourage sharing information about salaries.”), rev 'd en banc, 
928 F.2d 86 (4* Cir. 1990), as well as job descriptions, 
employee profiles, performance criteria and documents



6

describing the criteria and process for promotion actions. 
EEOC v. Morgan Stanley, 132 F. Supp. 2d 146, 152 (S.D.N.Y. 
2000) (describing defendant’s opposition to production of such 
documents).

Employers also frequently treat as confidential 
disciplinary records, job analyses, and employment tests, EEOC 
v. City o f Milwaukee, 54 F. Supp. 2d 885,889 (E.D. Wis. 1999) 
(“To date, the City has refused to produce the testing 
documents, the promotion documents or any of the IAD 
[Internal Affairs Department] documents.”) as well as manuals 
describing an employer’s human resources practices. Herrera 
v. Mobil Oil Co., 1990 U.S. Dist. LEXIS 11082, at *5-*6 
(W.D. Tex. August 17,1990) (“Management Guides” regarding 
career development, salary administration, job descriptions and 
equal employment opportunity were treated by the company as 
confidential). Similarly, documents concerning prior 
complaints of discrimination by other minority employees are 
frequently treated as confidential. EEOC v. Morgan Stanley, 
132 F. Supp. 2d at 149-50 (noting employer’s opposition to 
production of such documents in response to two separate 
EEOC subpoenas).

Employers do not routinely make confidential materials 
available prior to litigation —  in some instances it is unlawful 
for an employer to do so. 5 U.S.C. § 552a(b)(l 1); Md . CODE 
Ann ., State Gov’t . § 10-616(1) (prohibiting release of 
personnel records of state employees); Miss. CODE Ann . § 25- 
MOO (exempting personnel records of state employees from 
Public Records Act); N.C. Gen. STAT. § 126-22 (same). In 
these instances, it is only through the discovery process that 
plaintiff is able to obtain the relevant facts. Weahkee v. Norton, 
621 F. 2d at 1082 (noting that Fed. R. Crv. P. 37 provides 
vehicle for obtaining release of personnel files of comparable 
employees).



7

On occasion, employers even resist production of such 
materials in response to EEOC subpoenas issued prior to the 
start of litigation.4 See, e.g., EEOC v. Morgan Stanley, 132 F. 
Supp. 2d at 150. In those instances where an employer 
produces documents to the EEOC, restrictions apply to 
plaintiffs access to those documents. EEOC v. City of 
Milwaukee, 919 F. Supp. 1247, 1258-59 (E.D. Wis. 1996) 
(certain provisions of FOIA “regulate severely the disclosure of 
information and documentation which the EEOC would receive 
via this subpoena”); EEOC v. City of Milwaukee, 54 F. Supp. 
2d 885, 894 (E.D. Wis. 1999) (noting that confidential 
commercial information, law enforcement materials, testing 
papers and “promotion documents” were probably unavailable 
to plaintiff or p lain tiffs counsel through a FOIA request filed 
prior to initiation of Title VII complaint).

As a practical matter, therefore, access to a vast range 
of documents setting forth facts central to an employment 
controversy is largely unavailable to employment 
discrimination plaintiffs and their counsel prior to the filing of 
the complaint.5

4 Title v n  o f the Civil Rights Act o f 1964 does not grant to private 
plaintiffs the subpoena power granted to the EEOC to investigate a claim 
prior to litigation. 42 U.S.C. § 2000e-9.

5 Plaintiffs risk losing all rights to recovery under anti­
discrimination laws if they pursue informal discovery o f confidential 
documents. Bongerv. American Water Works, 789 F. Supp. 1102,1107 (D. 
Colo. 1992) (court denied all relief to plaintiff who violated company’s 
confidentiality rules in sharing documents with her counsel in pre-complaint 
investigation).



8

B. Ethics Rules Also Place Limits on Plaintiffs’ and 
Their Counsels’ Ability to Obtain Specific Facts in 
Support of a Prima Facie Case Prior to Filing a 
Complaint

Additional barriers restrict employment discrimination 
plaintiffs’ and their counsels’ ability to interview witnesses and 
decision-makers prior to the filing of the complaint. Persons 
who have made the challenged decision and witnesses to 
discriminatory conduct frequently remain in the employ of the 
company. Such persons are often reluctant to become involved 
in a lawsuit against their employer for fear of adverse 
consequences.6 Further, in some jurisdictions, ethical rules 
restrict access to these witnesses, thereby making it difficult for 
employment discrimination plaintiffs and their counsel to 
obtain sufficient factual information before initiating litigation 
to do more than put their employers on notice of their claims.

Rules of professional conduct against ex parte contacts 
with the employees of a represented corporation have been 
interpreted by some courts as prohibiting employment 
discrimination plaintiffs from approaching non-management 
level employees to obtain evidence relevant to their claims. 
See, e.g., Palmer v. Pioneer Inn Associates, Ltd., 19 F. Supp.

6 This Court has observed:

The danger o f witness intimidation is particularly acute with 
respect to current employees —  whether rank and file, supervisory, 
or managerial —  over whom the employer, by virtue o f the 
employment relationship, may exercise intense leverage. Not only 
can the employer fire the employee, but job assignments can be 
switched, hours can be adjusted, wage and salary increases held up, 
and other more subtle forms of influence exerted.

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 240 (1978).



9

2d 1157, 1168 (D. Nev. 1998) (by communicating with 
employee “capable of making an admission imputable to 
[employer],” p lain tiffs counsel violated Nevada ethics rule 
forbidding ex parte contacts), app. pending, see 257 F.3d 999, 
1003 (9th Cir. 2001) (certifying to Nevada Supreme Court 
question whether Nevada applies ethical provision barring ex 
parte contact with an employee “whose statement may 
constitute an admission on the part of the organization.”); Hill 
v. St. Louis Univ., 123 F.3d 1114,1121 (8th Cir. 1997) (contact 
with employer’s managerial employee was improper, even 
though employee did not directly supervise plaintiff); Terra 
Int’l, Inc. v. Mississippi Chem. Corp., 913 F. Supp. 1306,1321 
(N.D. Iowa 1996) (precluding ex parte contacts under Iowa law 
with shipping department supervisor with authority over seven 
employees); Insituform of North America, Inc. v. Midwest 
Pipeliners, Inc., 139 F.R.D. 622, 625 (S.D. Ohio 1991) (ex 
parte contact with employee whose “admissions are admissible 
against the employer” prohibited under Ohio law); Stanford v. 
President and Fellows of Harvard College, 2000 Mass. Super. 
LEXIS 489 (Super. Ct. Mass. Nov. 1,2000) (lawyers forbidden 
under Massachusetts law from speaking with any institutional 
employee, absent consent of institution’s counsel, whose acts 
or omissions could bind or impute liability to the organization 
or whose statements could be used as admissions against the 
organization), app. pending, No. SJC-08592 (Sup. Jud. Ct. 
Mass.)7; but see Brown v. Oregon Dep’t of Corrections, 173 
F.R.D. 265,268 (D. Or. 1997) (plaintiffs attorney may, under 
Oregon ethical rules, interview prison employees who observed 
instances of hostile work environment without agency

7 The trial court imposed sanctions of $94,718.80 in attorney’s fees 
for plaintiff s counsel ’ s pre-litigation investigatory efforts that the trial court 
found to have violated the Massachusetts contacts rule. See Stanford v. 
President and Fellows of Harvard College, Superior Court Civil Action No. 
99-4042 (Super. Ct. Mass. March 21, 2001).



10

counsel’s knowledge or consent); Carter-Herman v. City of 
Philadelphia, 897 F. Supp. 899, 903-04 (E.D. Pa. 1995) 
(permitting ex parte contacts, under Pennsylvania ethical rules, 
with those employees of police department who did not have 
managerial responsibility).8 Thus, a requirement that an 
employment discrimination complaint must plead specific facts 
showing that at trial a prima facie case can be established 
would not only be contrary to the notice pleading requirements 
of the Federal Rules of Civil Procedure and this Court’s prior 
decisions,9 but as a practical matter would —  depending on the 
jurisdiction —  not be feasible in light of ethical rules 
preventing the acquisition of needed evidence.

C. The Second Circuit’s Fact-Pleading Rule Conflicts 
with or Is Unnecessary in Light of Other Provisions 
of the Federal Rules of Civil Procedure

Adoption of the Second Circuit’s fact-pleading rule also 
raises issues under Rule 11 of the Federal Rules of Civil 
Procedure. Rule 11(b)(3) requires counsel to certify that “the 
allegations and other factual contentions have evidentiary 
support or, if specifically so identified, are likely to have 
evidentiary support after a reasonable opportunity for further 
investigation or discovery.” It is virtually impossible for an 
employment discrimination plaintiff to allege facts with 
specificity and meet this Rule 11 standard.

8 The ethics rules implicated are Rule 4.2 o f  the ABA Model Rules 
o f Professional Conduct and Disciplinary Rule 7-104 o f the ABA Model 
Code of Professional Responsibility, one or the other o f which serves as the 
basis o f each state’s “contacts” rules.

9 See, e.g., Leatherman v. Tarrant County Narcotics Intelligence 
and Coordination Unit, 507 U.S. 163 (1993), Scheuerv. Rhodes, 416 U.S. 
232 (1974) and Conley v. Gibson, 355 U.S. 41 (1957).



11

Some courts have ruled that Rule 11 requires more than 
reliance upon the “uncorroborated word” of the plaintiff and 
plaintiffs witnesses for “the key contentions of the case.” 
Gartenbaum v. Beth Israel Medical Center, 26 F. Supp. 2d 645, 
647 (S.D.N.Y. 1998) {quoting Forbes v. Merrill Lynch, Fenner 
& Smith, Inc., 179 F.R.D. 107, 109 (S.D.N.Y. 1998). vacated 
sub nom. Nuwesra v. Merrill Lynch, Fenner & Smith, Inc., 174 
F.3d 87 (2d Cir. 1999)). Again, under the Second Circuit’s 
heightened pleading requirement, this becomes a virtually 
impossible standard for plaintiffs counsel to meet, particularly 
in those jurisdictions that impose broad limits on access to 
witnesses under state ethical rules.

In many instances, there are no sources of information 
available to plaintiffs counsel prior to filing the complaint 
other than plaintiff and, depending upon the jurisdiction, 
perhaps some witnesses. Adoption of the Second Circuit’s 
fact-pleading rule in conjunction with both the barriers to 
obtaining pre-complaint information described above and Rule 
11 standards would make it likely that meritorious claims 
would not be pursued. Such a result is contrary to the purposes 
of the Federal Rules of Civil Procedure —  “to secure the just, 
speedy, and inexpensive determination of every action.” Rule 
1, Fed . R. Civ . P. The foreclosure altogether of access to the 
courts because of a heightened pleading rule is not, of course, 
a just resolution of a dispute.

Rejection of the Second Circuit’s rule does not mean 
that federal courts must allow non-meritorious claims to go to 
trial. Rule 56, FED. R. Civ. P. remains the proper vehicle to 
grant judgment without trial in those instances where there are 
no genuine issues of material fact. Matsushita Elec. Indus. Co. 
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“In the 
language of the Rule, the nonmoving party must come forward 
with ‘specific facts showing that there is a genuine issue for 
trial.' Fed. Rule Civ. Proc. 56(e).”) (emphasis in original);



12

Mullin v. Raytheon Co., 164 F.3d 696, 698 (1st Cir. 1999) 
(“Summary judgm ent is a device that ‘has proven its usefulness 
as a means of avoiding full-dress trials in unwinnable cases, 
thereby freeing courts to utilize scarce judicial resources in 
more beneficial ways.’’’(quoting Mesnickv. General Elec. Co., 
950 F.2d 816, 822 (1st Cir. 1991)).

Nor does rejection of the Second Circuit’s rule in this 
case mean that plaintiffs and their counsel are free to pursue 
non-meritorious claims once discovery has demonstrated the 
absence of factual support. Christiansburg Garment Co. v. 
EEOC, 434 U.S. 412,421 (1978) (“[A] district court may in its 
discretion award attorney’s fees to a prevailing defendant in a 
Title VII case upon a finding that the plaintiff’s action was 
frivolous, unreasonable, or without foundation, even though not 
brought in subjective bad faith.”); Brown v. Federation o f State 
Medical Boards o f the United States, 830 F.2d 1429, 1436 (7th 
Cir. 1987) (awarding fees under Rule 11 for counsel’s pursuit 
of case after “the record demonstrated that [plaintiff’s] claims 
were not supported by the facts.”), abrogated by Mars Steel 
Corp. v. Continental Bank N.A., 880 F.2d 928 (7th Cir. 1989).

CONCLUSION

Significant restrictions, both legal and practical, limit 
the opportunity of plaintiffs and their counsel to conduct an 
investigation prior to filing a complaint sufficient to develop 
the specific facts required to satisfy the Second Circuit’s 
heightened pleading requirements. Adoption of the Second 
Circuit’s rule, in the context of these restrictions, would 
effectively restrict the ability of plaintiffs with meritorious 
claims —  those dependent upon formal discovery to develop 
the specific facts in support of a prima facie case —  to bring 
their claims at all, thereby effectively denying them recourse to 
the courts altogether.



Respectfully submitted,

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
James L. Cott 

*Robert H. Stroup 
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2200

* Counsel o f Record 

Attorneys for Amicus Curiae

Dated: November 16, 2001