                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-2488


DAWNN MCCLEARY-EVANS,

                Plaintiff - Appellant,

           v.

MARYLAND   DEPARTMENT   OF   TRANSPORTATION,    STATE   HIGHWAY
ADMINISTRATION,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:13-cv-00990-CCB)


Argued:   December 9, 2014                 Decided:   March 13, 2015


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.


Affirmed by published opinion.        Judge Niemeyer wrote the
majority opinion, in which Judge Diaz joined. Judge Wynn wrote
a separate opinion dissenting in part.


ARGUED: John Henry Morris, Jr., LAW OFFICE OF JOHN H. MORRIS,
JR., Baltimore, Maryland, for Appellant.     DeNisha A. Watson,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee.   ON BRIEF:   Douglas F. Gansler, Attorney General
of Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellee.
NIEMEYER, Circuit Judge:

     Dawnn       McCleary-Evans        commenced        this    action     against       the

Maryland      Department          of        Transportation’s            State       Highway

Administration, alleging that the Highway Administration failed

or refused to hire her for two positions for which she applied

because of her race (African American) and her sex (female), in

violation    of     Title    VII       of   the   Civil        Rights    Act     of   1964,

specifically 42 U.S.C. § 2000e-2(a)(1).                        In her complaint, she

alleged that she was highly qualified for the positions, but

that the decisionmakers were biased and had “predetermined” that

they would select white candidates to fill the positions.

     The    district    court      granted        the    Highway        Administration’s

motion      to      dismiss        under          Federal         Rule         of     Civil

Procedure 12(b)(6),         concluding        that      the    complaint        failed    to

allege facts that plausibly support a claim of discrimination.

Because we agree that McCleary-Evans failed to include adequate

factual     allegations      to     support       a     claim     that     the      Highway

Administration discriminated against her because she was African

American    or    female,    we    accordingly          affirm.     See     Ashcroft      v.

Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face’” (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007))).



                                             2
                                                I

      McCleary-Evans           worked    for        over    20     years     as    a       project

manager     on    environmental         regulatory         compliance       projects         while

employed at the Maryland Department of Natural Resources and the

Maryland Transit Administration.                     In late 2009 and early 2010,

she    applied       for        two      open        positions        in     the           Highway

Administration’s Environmental Compliance Division, interviewing

first for a position as an assistant division chief and later

for a position as an environmental compliance program manager.

Despite     her    prior       work    experience          and    education,       which        she

alleged made her “more than qualified” for the two positions,

she   was   not    selected       for    either       position.        Instead,            as   the

complaint asserted, “The positions in question were filled by

non-Black candidates.”

      McCleary-Evans’ claim that the Highway Administration did

not hire her “because of the combination of her race and gender”

relies essentially on two paragraphs of her complaint.                                     In one,

she   alleged      that    her    applications         were       “subject    to       a    review

panel significantly influenced and controlled by . . . Gregory

Keenan,     a    White    male    in    the     Office       of    Environmental            Design

(‘OED’) who worked under the supervision of OED Director, Sonal

Sangahvi, a non-Black woman,” and that “[d]uring the course of

her   interview,         and    based    upon       the    history     of     hires         within

OED, . . . both Keenan and Sangahvi predetermined to select for

                                                3
both positions a White male or female candidate.”                                In the other

paragraph,     she     similarly          alleged           that,     “although        African

American candidates had been among the selection pool,” “Keenan

and Sangahvi, for reasons of race and gender, overlooked the

African American candidates to select White male, preferably,

and   White    female       candidates.”               In    short,        she     claimed     in

conclusory    fashion       that       the   decisionmakers               were   biased      when

making the decision.              And the complaint did not include any

allegations regarding the qualifications or suitability of the

persons hired to fill the two positions.

      In dismissing her claim, the district court concluded that

McCleary-Evans       had     failed       to       “allege       facts      that      plausibly

support a claim of discrimination.”                          The court reasoned that

because     this     was     a     case        with        “no      direct       evidence      of

discrimination,”           McCleary-Evans             needed         to      allege       facts

sufficient to “state a prima facie case of discrimination for

failure to hire by showing: (1) that she is a member of the

protected class; (2) that the employer had an open position for

which she applied or sought to apply; (3) that she was qualified

for   the     position;          and    (4) that           she      was     rejected      under

circumstances        giving       rise       to       an     inference           of    unlawful

discrimination.”            It    noted        that,        while    McCleary-Evans           had

sufficiently alleged the first three prongs of the prima facie

case, she had not “stated facts sufficient to meet the pleading

                                               4
requirements as to the fourth prong.”                    Her complaint, the court

said, “offer[ed] nothing to support her conclusory assertions

[of   discrimination]       beyond     an       unsubstantiated      mention    of    ‘a

history     of     hires’     within       the     division[]       and     statements

identifying her race, the races of the two members of the hiring

review panel, and the races of the two applicants hired for the

positions.”        The court concluded that, “[b]ecause discrimination

cannot be presumed simply because one candidate is selected over

another candidate, McCleary-Evans ha[d] not pled adequate facts

to give rise to a reasonable inference of discrimination.”

      From the district court’s order dismissing her complaint,

McCleary-Evans filed this appeal.


                                           II

      McCleary-Evans contends that the district court imposed on

her a pleading standard “more rigorous” than Swierkiewicz v.

Sorema N.A., 534 U.S. 506 (2002), allows, by analyzing her claim

under   the      standard   set    forth    in     McDonnell      Douglas     Corp.   v.

Green, 411 U.S. 792 (1973), for proving a prima facie case of

discrimination.         She       maintains       that    the     “District    Court’s

decision fails to demonstrate the deficiency of the Complaint as

a pleading, but rather offers authority that only works as a

challenge     to     demonstrate      deficiency         as     evidentiary    proof.”

(Emphasis added).


                                            5
     In Swierkiewicz, the Supreme Court held that “an employment

discrimination plaintiff need not plead a prima facie case of

discrimination . . . to survive [a] motion to dismiss,” 534 U.S.

at 515, because “[t]he prima facie case . . . is an evidentiary

standard,      not    a    pleading    requirement,”           id.     at 510,      that     may

require demonstrating more elements than are otherwise required

to state a claim for relief, id. at 511-12.                             The Court stated

that requiring a plaintiff to plead a prima facie case would

amount to a “heightened pleading standard” that would conflict

with Federal Rule of Civil Procedure 8(a)(2).                              Id. at 512.        As

the Court explained:

     [I]t 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.    For instance,
     if a plaintiff is able to produce direct evidence of
     discrimination, he may prevail without proving all the
     elements of a prima facie case.

Id. at 511.      Accordingly, the Court concluded that “the ordinary

rules    for   assessing       the     sufficiency        of     a    complaint          apply,”

referring to Federal Rule of Civil Procedure 8(a)(2).                              Id.

     In     light      of    Swierkiewicz,          McCleary-Evans            appropriately

argues    that       the    district    court       erred       in     its    analysis        by

requiring her to plead facts establishing a prima facie case of

discrimination to survive a motion to dismiss.                          But the district

court’s    erroneous        analysis     in       this   case        will    not    save     the

complaint      if,    under    the     “ordinary         rules       for     assessing      the

                                              6
sufficiency of a complaint,” Swierkiewicz, 534 U.S. at 511, it

fails to state a plausible claim for relief under Title VII.

See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.

2010) (“[W]hile a plaintiff is not required to plead facts that

constitute a prima facie case in order to survive a motion to

dismiss, see Swierkiewicz, ‘[f]actual allegations must be enough

to   raise    a   right      to    relief      above         the    speculative         level’”

(citation omitted) (quoting Twombly, 550 U.S. at 555)).

       Federal Rule of Civil Procedure 8(a)(2) “requires only a

short and plain statement of the claim showing that the pleader

is   entitled     to    relief,    in       order      to    give    the    defendant       fair

notice of what the . . . claim is and the grounds upon which it

rests.”      Twombly, 550 U.S. at 555 (internal quotation marks and

citation omitted).            But this rule for pleading “requires more

than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.”                                Id.       Instead, a

complaint     must     contain     “[f]actual          allegations         [sufficient]       to

raise a right to relief above the speculative level.”                                  Id.; see

also    Iqbal,     556      U.S.      at     678       (holding       that       a    complaint

“tender[ing]      ‘naked      assertion[s]’            devoid       of   ‘further       factual

enhancement’”        does    not   “suffice”           (quoting      Twombly,         550   U.S.

at 557)).         The       Supreme        Court       has    accordingly            held   that

Rule 8(a)(2)         requires       that          “a     complaint . . .              contain[]

sufficient factual matter, accepted as true, to ‘state a claim

                                              7
to relief that is plausible on its face’” in the sense that the

complaint’s factual allegations must allow a “court to draw the

reasonable      inference       that       the       defendant      is    liable        for   the

misconduct alleged.”             Iqbal, 556 U.S. at 678 (emphasis added)

(quoting Twombly, 550 U.S. at 570); see also Coleman, 626 F.3d

at 191 (finding a complaint inadequate because its allegations

“fail[ed]      to    establish       a    plausible         basis   for       believing . . .

that   race     was    the     true       basis       for    [the     adverse         employment

action]”).

       In her complaint, McCleary-Evans purported to state a claim

under Title VII, which means that she was required to allege

facts to satisfy the elements of a cause of action created by

that    statute       --      i.e.,      in      this       case,     that      the      Highway

Administration “fail[ed] or refus[ed] to hire” her “because of

[her] race . . . [or] sex.”                42 U.S.C. § 2000e-2(a)(1) (emphasis

added).        While she did allege that the Highway Administration

failed to hire her, she did not allege facts sufficient to claim

that the reason it failed to hire her was because of her race or

sex.      To    be    sure,    she       repeatedly         alleged      that    the     Highway

Administration        did     not     select         her    because      of     the    relevant

decisionmakers’ bias against African American women.                                  But those

“naked” allegations -- a “formulaic recitation” of the necessary

elements -- “are no more than conclusions” and therefore do not

suffice.       Iqbal, 556 U.S. at 678-79 (quoting Twombly, 550 U.S.

                                                 8
at 555, 557) (internal quotation marks omitted).                             For example,

she   alleged    that    “[d]uring       the    course        of   her    interview,     and

based     upon   the     history     of        hires        within    [the      Office    of

Environmental          Design], . . . both                  Keenan        and     Sangahvi

predetermined     to    select     for    both     positions         a    White   male    or

female candidate.”         But she alleged no factual basis for what

happened “during the course of her interview” to support the

alleged     conclusion.            The     allegation              that     the    Highway

Administration did not hire her because its decisonmakers were

biased is simply too conclusory.                 Only speculation can fill the

gaps in her complaint -- speculation as to why two “non-Black

candidates” were selected to fill the positions instead of her.

While the allegation that non-Black decisionmakers hired non-

Black applicants instead of the plaintiff is consistent with

discrimination, it does not alone support a reasonable inference

that the decisionmakers were motivated by bias.                           See id. at 678.

McCleary-Evans can only speculate that the persons hired were

not better qualified, or did not perform better during their

interviews, or were not better suited based on experience and

personality      for    the   positions.               In    short,       McCleary-Evans’

complaint “stop[ped] short of the line between possibility and

plausibility of entitlement to relief.”                        Id. (quoting Twombly,

550 U.S. at 557) (internal quotation marks omitted).



                                           9
       In    his      dissent,          Judge    Wynn     asserts     that        our        holding

“ignores       the     factual          underpinnings”        of     Swierkiewicz,             post,

at 19,      which     approved          an    employment      discrimination            complaint

that, he claims, contained allegations less detailed than those

made by McCleary-Evans in this case, post, at 23.                                A closer look

at Swierkiewicz, however, reveals that it does not support this

position.          Swierkiewicz          claimed       that   he    had    been       subject      to

discrimination based on his age and national origin, alleging

that he had been employed by a reinsurance company that was

“principally          owned        and         controlled      by     a     French            parent

corporation”          for    about       six    years    as    the    chief       underwriting

officer when the company’s CEO demoted him and “transferred the

bulk of his underwriting responsibilities” to an employee who,

like     the    CEO,        was     a        French    national      and        who    was        also

significantly younger than Swierkiewicz.                           Swierkiewicz, 534 U.S.

at 508.        He alleged further that, about a year later, the CEO

“stated        that     he        wanted        to     ‘energize’         the     underwriting

department” and appointed the younger French national to serve

as the company’s new chief underwriting officer.                                 Id.        Finally,

Swierkiewicz           alleged          specifically          that        the         new      chief

underwriting officer was “less experienced and less qualified”

for the position because he “had only one year of underwriting

experience at the time he was promoted,” whereas Swierkiewicz

“had 26 years of experience in the insurance industry.”                                     Id.    As

                                                  10
this last detail is precisely the kind of allegation that is

missing    from      McCleary-Evans’           complaint,     the     fact    that     the

Supreme   Court      found    Swierkiewicz’s          allegations      sufficient      to

state a claim ultimately says little about the sufficiency of

McCleary-Evans’ complaint.

       Moreover, in finding the complaint sufficient, the Supreme

Court in Swierkiewicz applied a different pleading standard than

that   which    it    now    requires      under      Iqbal    and    Twombly.        See

Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th

Cir.    2012)     (noting     that       Iqbal      and    Twombly     “require       more

specificity     from    complaints        in     federal    civil     cases    than   was

heretofore the case”).            To be sure, those cases did not overrule

Swierkiewicz’s       holding      that    a     plaintiff     need    not     plead   the

evidentiary standard for proving a Title VII claim -- indeed,

Twombly   expressly       reaffirmed       Swierkiewicz’s        holding       that   the

“‘use of a heightened pleading standard for Title VII cases was

contrary to the Federal Rules’ structure of liberal pleading

requirements.’”        Twombly, 550 U.S. at 570 (quoting Twombly v.

Bell Atl. Corp., 313 F. Supp. 2d 174, 181 (S.D.N.Y. 2003)); see,

e.g., Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st

Cir.   2013)    (joining      “[s]everal         other     courts    of   appeals”     in

concluding “that the Swierkiewicz Court’s treatment of the prima

facie case in the pleading context remains” good law).                                But

Twombly   and     Iqbal     did   alter       the   criteria    for    assessing      the

                                           11
sufficiency of a complaint in at least two respects.                                 First, the

Twombly     Court        explicitly          overruled        the       earlier        standard

articulated      in    Conley    v.     Gibson,       355    U.S.       41    (1957)    --    and

repeated    in       Swierkiewicz,      see     534      U.S.      at   514     --    that    “‘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.’”       Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at

45-46); see       also    Iqbal,       556    U.S.    at     670    (acknowledging           that

Twombly “retired the Conley no-set-of-facts test”); Francis v.

Giacomelli,      588     F.3d    186,    192       n.1     (4th     Cir.      2009)     (same).

Moreover, Iqbal and Twombly articulated a new requirement that a

complaint       must    allege     a    plausible           claim       for    relief,       thus

rejecting a standard that would allow a complaint to “survive a

motion     to    dismiss        whenever       the       pleadings           left    open    the

possibility that a plaintiff might later establish some ‘set of

[undisclosed] facts’ to support recovery.”                          Twombly, 550 U.S. at

561 (alteration in original) (emphasis added).

     In short, in addition to the fact that the Swierkiewicz

complaint       contained       more     relevant          factual       allegations          for

stating a Title VII claim than does McCleary-Evans’ complaint,

the Swierkiewicz Court also applied a pleading standard more

relaxed than the plausible-claim standard required by Iqbal and

Twombly.        At    bottom,    therefore,        the      Supreme      Court       has,    with

                                              12
Iqbal and Twombly, rejected the sufficiency of complaints that

merely     allege       the       possibility          of     entitlement            to      relief,

requiring       plausibility           for     obtaining          such        relief      and        thus

rejecting       a    complaint         in      which        the        plaintiff       relies         on

speculation.         See Twombly, 550 U.S. at 555 (“Factual allegations

must be enough to raise a right to relief above the speculative

level” (emphasis added)).

      Thus,      contrary         to    Judge        Wynn’s        assertions          about         the

applicability of Swierkiewicz, it is clear that that decision

does not control the outcome here because: (1) the complaint in

Swierkiewicz alleged that the plaintiff was more qualified than

the   younger        French       person      appointed           to    replace        him      --    an

allegation           that         McCleary-Evans              has         not        made;           and

(2) Swierkiewicz in any event applied a more lenient pleading

standard      than     the    plausible-claim               standard          now    required         by

Twombly and Iqubal.

      Applying        the     Twombly/Iqbal            standard           here      reveals          that

McClearly-Evans’        complaint            suffers    from        the    same      deficiencies

that defeated the complaint in Iqbal.                         In Iqbal, the plaintiff,

a   Muslim      citizen      of    Pakistan       who       was        detained      after       9/11,

alleged    in    a    conclusory        fashion        that       he    was    treated       harshly

pursuant to a policy adopted by the Attorney General and the

Director of the FBI solely on account of his race, religion, or

national origin.             See 556 U.S. at 680-81.                       The Supreme Court

                                                13
found the complaint insufficient because it had “not ‘nudged

[his] claims’ of invidious discrimination ‘across the line from

conceivable to plausible,’” id. at 680 (alteration in original)

(quoting Twombly, 550 U.S. at 570), explaining that his factual

allegations   did    not   “plausibly   suggest”    that   the   Attorney

General and the FBI Director had acted with a “discriminatory

state of mind,” id. at 683.

     Similarly,     McCleary-Evans’     complaint    leaves      open   to

speculation the cause for the defendant’s decision to select

someone other than her, and the cause that she asks us to infer

(i.e., invidious discrimination) is not plausible in light of

the “‘obvious alternative explanation’” that the decisionmakers

simply judged those hired to be more qualified and better suited

for the positions.     Iqbal, 556 U.S. at 682 (quoting Twombly, 550

U.S. at 567).       Indeed, the consequence of allowing McCleary-

Evans’ claim to proceed on her complaint as stated would be that

any qualified member of a protected class who alleges nothing

more than that she was denied a position or promotion in favor

of someone outside her protected class would be able to survive

a Rule 12(b)(6) motion.       Such a result cannot be squared with

the Supreme Court’s command that a complaint must allege “more

than a sheer possibility that a defendant has acted unlawfully.”

Id. at 678.



                                   14
     In sum, while the district court improperly applied the

McDonnell     Douglas    evidentiary      standard   in    analyzing   the

sufficiency     of      McCleary-Evans’      complaint,     contrary    to

Swierkiewicz,     the    court   nonetheless     reached     the   correct

conclusion under Twombly and Iqbal because the complaint failed

to state a plausible claim for relief, as required by Federal

Rule of Civil Procedure 8(a)(2).        Accordingly, we affirm.

                                                                   AFFIRMED




                                   15
Wynn, Circuit Judge, dissenting in part.

      I do not agree with that part of the majority’s opinion

that affirms the dismissal of Dawnn McCleary-Evans’s claim that

she was discriminated against because of her race.                    This case

brings into stark relief the tension embedded in the Supreme

Court’s     recent      jurisprudence       regarding     Rule    8     pleading

requirements.        It requires us to reconcile the Supreme Court’s

decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007),

and   Ashcroft v. Iqbal, 556 U.S. 662 (2009), with its decision

in Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002)—no small

task as the inconsistent case law in this area shows.

      The Supreme Court’s decisions in Twombly and Iqbal, which

underpin     the    majority’s   holding,     each   speak   to   the      proper

application    of     Rule   8(a)(2)   of   the   Federal    Rules    of    Civil

Procedure.         That rule continues to be the yardstick by which

courts     measure    the    sufficiency     of   civil   complaints.        The

language of the rule thus makes for a good starting point for

any court’s consideration of a motion to dismiss for failure to

state a claim.       The rule provides:

      (a) Claim for Relief. A pleading that states a claim
      for relief must contain:

            (2) a short and plain statement               of the claim
            showing   that the pleader   is                entitled to
            relief . . . .

Fed. R. Civ. P. 8(a)(2).


                                       16
     Time and again the Supreme Court has reiterated that Rule

8(a)(2) sets forth a “liberal pleading standard[],” one which

does not contemplate the pleading of “specific facts.”                             Erickson

v. Pardus, 551 U.S. 89, 94 (2007).                       And the Supreme Court’s

recent   jurisprudence        has    not    extinguished         what       has    been    the

guiding star of 12(b)(6) jurisprudence for the last forty years—

“fair notice to the defendant.”                  Id. at 93 (internal quotation

marks    and   citations      omitted).          Indeed,       the    Court       stated    in

Twombly and reiterated less than a year later in Erickson that

the short and plain statement required under Rule 8(a)(2) “need

only ‘give the defendant fair notice of what the . . . claim is

and the grounds upon which it rests.’”                         Id. (quoting Twombly,

550 U.S. at 555).         Nor has the Court abandoned the longstanding

requirement      that    judges     “accept       as    true    all    of    the    factual

allegations contained in the complaint.”                   Id. at 04.

     What      the     Court’s    recent        cases    have    done,       however,       is

require that a plaintiff do more than raise a remote possibility

of relief.      The now familiar moniker for the plaintiff’s burden

is   “plausibility.”             While     the    Court’s       delineation         of     the

plausibility requirement may be somewhat “opaque,” Swanson v.

Citibank,      N.A.,    614   F.3d       400,    411    (7th    Cir.    2010)      (Posner,

dissenting), the Court has given lower courts a few signposts to

travel by.      We know, for instance, that more is required than “a

sheer    possibility       that      a    defendant       has    acted       unlawfully.”

                                            17
Iqbal, 556 U.S. at 678.              A plaintiff must allege sufficient

factual     content      to      “‘nudg[e]’         his     claim    of    purposeful

discrimination ‘across the line from conceivable to plausible.’”

Id. at 683 (quoting Twombly, 550 U.S. at 570).

     Yet we also know that “[t]he plausibility standard is not

akin to a ‘probability requirement.’”                     Id. at 678.       In other

words,    it    need     not     appear     from      the    complaint     that     the

plaintiff’s     claims     are     likely      to    succeed.       As    this    Court

recently recognized, “[a]lthough . . . the factual allegations

in a complaint must make entitlement to relief plausible and not

merely possible, what Rule 12(b)(6) does not countenance are

dismissals based on a judge’s disbelief of a complaint’s factual

allegations.”      McLean v. United States, 566 F.3d 391, 399 (4th

Cir. 2009) (internal quotation marks, alterations and citations

omitted).      Further, plausibility will not look the same in every

case; assessing plausibility is “a context-specific task that

requires the reviewing court to draw on its judicial experience

and common sense.”       Iqbal, 556 U.S. at 679.

     In     evaluating         the    allegations            in     McCleary-Evans’s

complaint, however, we are not limited to the sparse guidance to

be gleaned from Twombly and Iqbal.                   In 2002 the Supreme Court

decided   Swierkiewicz,        a   case     involving       the   sufficiency     of   a

wrongful termination claim under Title VII.                    534 U.S. 506.      In a

unanimous opinion authored by Justice Thomas, the Court held

                                          18
that “a complaint in an employment discrimination lawsuit [need]

not contain specific facts establishing a prima facie case of

discrimination           under      the    framework         set    forth       in     McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).”                              Id. at 508.          To

the contrary, the plaintiff “easily satisfie[d]” Rule 8(a)(2)

when       he   “detailed        the      events       leading     to     his    termination,

provided relevant dates, and included the ages and nationalities

of    at    least      some    of   the    relevant         persons     involved       with   his

termination.”           Id. at 514 (emphasis added).                    The Court held that

such       allegations         “give       respondent         fair       notice        of     what

petitioner’s claims are and the grounds upon which they rest.”

Id.        Five   years       later,      the   Court       told   us    that    Swierkiewicz

remains         good     law,       specifically            referencing          the    factual

allegations         that      the   Swierkiewcz         Court      deemed       sufficient     to

state “grounds showing entitlement to relief.”                                   Twombly, 550

U.S. at 569-70.

       While      the      majority       pays        lip   service       to    Swierkiewicz,

acknowledging that a plaintiff need not plead a prima facie case

of    discrimination           under      the    McDonnell         Douglas      framework      to

comply with Rule 8(a)(2), see supra at 5-6, it entirely ignores

the factual underpinnings of the Swierkiewicz holding, looking

solely to the Supreme Court’s 2009 decision in Iqbal to guide

its decision.           In Iqbal, a Pakistani man who had been detained

during the weeks following the September 11th attacks alleged

                                                 19
that United States Attorney General John Ashcroft and Federal

Bureau of Investigations Director Robert Mueller had “adopted an

unconstitutional policy that subjected [him] to harsh conditions

of confinement on account of his race, religion, or national

origin.”     Id. at 666.       In a five-four decision, the Court held

that Iqbal’s claims against Ashcroft and Mueller did not satisfy

federal pleading requirements.             While acknowledging that Rule 9

of the Federal Rules of Civil Procedure “excuses a party from

pleading     discriminatory       intent     under   an      elevated    pleading

standard,”    id.    at    686,   the    Court     held   that    Iqbal’s    bare

assertions of Ashcroft and Mueller’s discriminatory purpose were

not entitled to the assumption of truth and that the remainder

of his complaint failed to state a plausible claim.                Id. at 697.

      The apparent tension between the Court’s decisions in Iqbal

and   Swierkiewicz    is   well-documented. 1        Despite      this   tension,

however,   “we   have     no   authority     to   overrule    a   Supreme   Court

decision no matter . . . how out of touch with the Supreme

      1
       See, e.g., McCauley v. City of Chicago, 671 F.3d 611, 623
(7th Cir. 2011) (Hamilton, dissenting) (“Iqbal . . . created
tension with Swierkiewicz by endorsing its holding while
simultaneously appearing to require the same sort of fact-
specific pleading of discriminatory intent that the Swierkiewicz
Court rejected.”); Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir.
2011) (“The juxtaposition of Swierkiewicz . . . on the one hand,
and . . . Iqbal, on the other, is perplexing”); Arthur R.
Miller, From Conley to Twombly to Iqbal: A Double Play on the
Federal Rules of Civil Procedure, 60 Duke L.J. 1, 31 (2010)
(noting that the tension between Iqbal and Swierkiewicz has
“caus[ed] confusion and disarray among judges and lawyers”).


                                        20
Court’s current thinking the decision seems.”                       Scheiber v. Dolby

Labs., Inc., 293 F.3d 1014, 1018 (7th Cir. 2002) (Posner, J.).

See also Columbia Union College v. Clarke, 159 F.3d 151, 158

(4th       Cir.    1998)    (recognizing      that      “lower    courts    are   not   to

conclude          that     the     Court’s    more       recent     cases     have,     by

implication, overruled its earlier precedent” (alterations and

internal quotation marks omitted)).                     This is particularly true

where, as here, the Supreme Court has said loud and clear that

its prior decision has not been overruled.

       We are therefore confronted with two Supreme Court cases

having apparent relevance to the case before us.                            One of these

cases, Swierkiewicz, involves a Title VII plaintiff who alleged

that his employer wrongfully terminated him due to his national

origin.           The other, Iqbal, involves a suspected terrorist who

alleged that he was mistreated pursuant to an unconstitutional

policy       instituted      by    the   United      States      Attorney    General    in

conjunction          with    the     Director      of    the      Federal     Bureau    of

Investigations.             I have little difficulty deciding which case

has    greater       applicability       to    the      run-of-the-mill       employment

discrimination case before us. 2


       2
       Further, I agree with Judge Hamilton’s view that “we must
take care not to expand Iqbal too aggressively beyond its highly
unusual context—allegations aimed at the nation’s highest-
ranking law enforcement officials based on their response to
unprecedented terrorist attacks on the United States homeland—to


                                              21
     The    Seventh   Circuit   adopts     the   view   that   Swierkiewicz

should continue to guide courts’ application of federal pleading

requirements     in   straightforward      discrimination      cases.    In

Swanson v. Citibank, N.A., the plaintiff alleged that Citibank

denied her loan application because she was African-American in

violation of the Fair Housing Act. 614 F.3d at 402-03.                   The

court concluded that the complaint satisfied the Twombly/Iqbal

plausibility standard where the plaintiff identified “the type

of discrimination that she thinks occur[ed] (racial), by whom

(Citibank,     through   Skertich,   the    manager,    and    the   outside

appraisers it used), and when (in connection with her effort in

early 2009 to obtain a home-equity loan).”              Id. at 617.     The

court held that the plausibility standard must be viewed through

the lens of Swierkiewicz in most straightforward discrimination

cases.     Id. at 404.   In reaching this holding, the court offered

the following illustration:

     A plaintiff who believes that she has been passed over
     for a promotion because of her sex will be able to
     plead that she was employed by Company X, that a
     promotion was offered, that she applied and was
     qualified for it, and that the job went to someone
     else. That is an entirely plausible scenario, whether
     or not it describes what “really” went on in this
     plaintiff’s case.




cut off potentially viable claims.”    McCauley v. City of
Chicago, 671 F.3d 611, 628-29 (7th Cir. 2011) (Hamilton, J.,
dissenting).


                                     22
Id.    at     404-405    (emphasis        added).          Even    Judge     Posner,      who

dissented       in    Swanson,        acknowledged         that    Swierkiewicz—though

distinguishable in his view—remains good law, recognizing that

“lower-court judges are not to deem a Supreme Court decision

overruled even if it is plainly inconsistent with a subsequent

decision.”       Id. at 410.

       Turning to McCleary-Evans’s complaint, it is clear that her

allegations go beyond what Swierkiewicz (and well-beyond what

Swanson) found sufficient to satisfy Rule 8(a)(2).                                McCleary-

Evans    contends       that    she      applied    for     two   positions       with    the

Maryland        Department          of      Transportation’s            State       Highway

Administration.              She      lays     out       in     immense      detail       her

qualifications for these positions.                      She identifies the Highway

Administration           employees          responsible           for       denying       her

applications, and states that both were non–African American.

She alleges that she and other African Americans who applied for

positions with the Highway Administration were denied employment

in    favor    of    non–African         American    applicants.            Finally,      she

alleges     that     based     on   her    interview       experience       and    what   she

apparently perceived as a discriminatory history of hires within

the    Highway       Administration,         her    race      played    a   role    in    the

decision to hire non-African-American candidates over her.                                 In

this    particular      context,         drawing    on     “judicial    experience        and


                                             23
common sense,” Iqbal, 556 U.S. at 679, McCleary-Evans’s claim of

race discrimination is eminently plausible.

       I am not unmindful of the policy concerns that underlie the

Supreme Court’s decisions in Twombly and Iqbal.                               As Judge Posner

pointed      out    in    his       Swanson      dissent,      the    Court       quite   clearly

aimed to curb the rising costs of discovery born by defendants

facing meritless lawsuits and to quell the tide of “extortionate

litigation” in this country.                     Swanson, 614 F.3d at 411 (Posner,

dissenting) (citing Frank H. Easterbrook, “Discovery as Abuse,”

69 B.U. L. Rev. 635, 639 (1989)).                            Indeed, the Twombly/Iqbal

standard incentivizes plaintiffs to be more diligent in their

pre-litigation investigations, thereby bringing greater balance

to     the    asymmetric            discovery          burdens       that     may       arise    in

litigation.

       Yet    if     we       are     to   consider          litigation       costs       in    the

application of federal pleading standards, we must take care not

to ignore the costs borne by plaintiffs and society as a whole

when     meritorious            discrimination            lawsuits          are     prematurely

dismissed.         See Miller, supra at 61.                    We ought not forget that

asymmetric         discovery          burdens       are      often     the        byproduct      of

asymmetric         information.            The    district       court’s      decision         below

exemplifies         the       risks   posed       by    an   overly     broad       reading      of

Twombly and Iqbal.                  The district court faulted McCleary-Evans

for     failing          to     allege        how       much     control          the     Highway

                                                  24
Administration employees named in the complaint “wield[ed]” over

other members of the hiring committee and failing to identify

the qualifications of the selected candidates.            J.A. 27-28.   It

is simply unrealistic to expect McCleary-Evans to allege such

facts without the benefit of at least some limited discovery.

When we impose unrealistic expectations on plaintiffs at the

pleading stage of a lawsuit, we fail to apply our “judicial

experience   and   common   sense”   to   the   highly   “context-specific

task” of deciding whether to permit a lawsuit to proceed to

discovery.    Iqbal, 556 U.S. at 679.           At the early stages of

Title VII litigation, borderline conclusory allegations may be

all that is available to even the most diligent of plaintiffs.

The requisite proof of the defendant’s discriminatory intent is

often in the exclusive control of the defendant, behind doors

slammed shut by an unlawful termination. 3

     Finally, I must take issue with the majority’s suggestion

that by “retiring” the Conley v. Gibson, 355 U.S. 41 (1957), “no

set of facts” standard in Twombly, 550 U.S. at 563, the Supreme

Court all but retired Swierkiewicz.         Under the majority’s view,

what remains of Swierkiewicz after Twombly is the bare holding

     3
       This state of affairs has led some commentators to argue
for a broadened use of pre-dismissal discovery, a tool that is
within the discretion of district courts. See, e.g., Suzette M.
Malveaux, Front Loading and Heavy Lifting: How Pre–Dismissal
Discovery Can Address the Detrimental Effect of Iqbal on Civil
Rights Cases, 14 Lewis & Clark L. Rev. 65 (2010)).


                                     25
that courts should not use the magic words of McDonnell Douglas

to assess the sufficiency of Title VII claims at the 12(b)(6)

stage.       Thus, the majority would render Swierkiewicz a hollow

shell and mute its primary thrust – namely, that discriminatory

intent need not be pled with specific facts. 4                             But the Supreme

Court       in   Swierkiewicz          specifically           forbade      using        judicial

interpretation to limit the scope of its holding.                                 Indeed, in

Swierkiewicz,          in    response       to    the    argument     that     the       Court’s

holding would “burden the courts” by “allowing lawsuits based on

conclusory        allegations          of    discrimination           to     go        forward,”

Swierkiewicz, 534 U.S. at 514, Justice Thomas, writing for a

unanimous        Court,       stated     that         “[a]    requirement         of    greater

specificity       for       particular      claims       is   a   result    that       ‘must    be

obtained by the process of amending the Federal Rules, and not

by   judicial      interpretation.’”              Id.     (emphasis        added)       (quoting

Leatherman        v.        Tarrant     County          Narcotics     Intelligence             and

Coordination Unit, 507 U.S. 163, 168–169 (1993)).                              As far as I


        4
       Indeed, in affirming dismissal of Swierkiewicz’s national
origin discrimination claim, the Second Circuit stated, “the
only circumstances Swierkiewicz pled are that he is Hungarian,
others at Sorema are French, and the conclusory allegation that
his termination was motivated by national origin discrimination.
. . . .[T]hese allegations are insufficient as a matter of law
to raise an inference of discrimination.”       Swierkiewicz v.
Sorema, N.A., 5 F. App'x 63, 64 (2d Cir. 2001) rev'd, 534 U.S.
506.   That a unanimous Supreme Court explicitly rejected the
Second Circuit’s demand for greater specificity cannot be
ignored.


                                                 26
am aware, no amendment to the Federal Rules has taken effect

since the Court’s ruling in Swierkiewicz that would require the

level   of   specificity   that   the   majority   by   its   own   “judicial

interpretation” demands from McCleary-Evans.

     Because McCleary-Evans’s complaint states a plausible claim

of discrimination on the basis of race, I respectfully dissent.




                                    27
