If you’re an employer in a lawsuit, you are held to a lower pleading standard than your employees.

Grant v. Bank of America, Civil Action No. 2:13-cv-342 (E.D.Va. Feb. 25, 2014), was handed down last week. The plaintiff, Ms. Grant, is black. She is suing her former employer and her former supervisor for race discrimination: she claims that when she was Vice President and Banking Center Manager, she did not receive the same resources as other similarly employed white and Asian managers. More specifically, she contends that six of her banking associates were fired and replaced with inexperienced employees. When she raised her concerns about the effects of this decision, her white supervisor began disciplining her and ultimately fired her, allegedly for a pretextual reason. The plaintiff also alleges that two white Bank of America managers received transfers for similar performance issues, instead of terminations.

This case has just begun and is ongoing, and the court has not yet made any rulings on substantive matters. Instead, the issue before the court was the plaintiff’s motion to strike ten affirmative defenses raised by the defendants.

This calls for some explanation: The parties in federal court operate under a set of rules that control how the case will proceed. According to these rules, the plaintiff starts a lawsuit by filing a Complaint. The Complaint is supposed to contain “short and plain” statements of the plaintiff’s claim. The defendant, in turn, has to file an Answer, which is also supposed to contain “short and plain terms” explaining the defenses and admitting or denying the plaintiff’s allegations. Furthermore, the defendant must state what are called “Affirmative Defenses.” For example, the defendant must affirmatively state if it has already settled the plaintiff’s claims or if the plaintiff filed her Complaint too late or if some other factor – outside of the claims that plaintiff has stated – makes it impossible for her to win the case. The Federal Rules of Civil Procedure list 18 separate Affirmative Defenses. The plaintiff has the burden of proving the allegations of her Complaint, but the defendant does not have to prove the denials of its Answer. The defendant, however, does have the burden of proof on its Affirmative Defenses.

In 2007 and 2009, the United States Supreme Court decided two cases that made it more difficult for plaintiffs to file a Complaint. Under these two decisions, known as Twombly and Iqbal, respectively, the plaintiff’s allegations now have to be not just “short and plain” but also “plausible.” Defendants have convinced courts in many cases to dismiss Complaints under the plausibility standard of Twombly and Iqbal. To a far lesser extent, plaintiffs have argued that what is good for the goose is good for the gander, and had courts strike defendants’ Affirmative Defenses.

That happened in Ms. Grant’s case. Ms. Grant asked the court to strike Bank of America’s Affirmative Defenses because, she argued, they did not meet the higher standard of Twombly and Iqbal. The question for the court was whether or not the plausibility standard of Twombly and Iqbal applies to a defendant’s Affirmative Defenses or whether it only applies to a plaintiff’s allegations in the Complaint.

The court reviewed case law and concluded that a majority of district courts had found that Twombly and Iqbal do apply to Affirmative Defenses, which is to say that geese and ganders were treated the same. The court also, however, noted that a sizable minority had (essentially) found that the whole goose/gander analogy is inapplicable. In other words, there is a split among the courts on this issue: the majority believes that both the plaintiff and the defendant are required to meet the plausibility standard in their pleadings, and the minority believes one pleading standard applies to the plaintiff and a different and easier pleading standard applies to the defendant.

One decision the court noted in particular was Francisco v. Verizon South, Inc., 2010 WL 2990159 (E.D. Va. July 29, 2010), where the court applied Twombly and Iqbal and struck the defendant’s affirmative defenses. (This firm represented the plaintiff in Francisco.)

The court in Grant was not obligated to follow the Francisco court’s decision, and it did not come to the same conclusion. Instead the court held that Twombly and Iqbal do not apply to allegations made by the defendant. According to the Grant court, a defendant’s allegations only need to be “contextually comprehensible” and provide the plaintiff merely with fair notice of the nature of the defense.

Ms. Grant’s motion was denied – her argument “what’s good for the goose is good for the gander” did not carry the day and did not persuade the district judge.

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