216 F.3d 1111 (D.C. Cir. 2000)
Victor H. Sparrow, III, Appellantv.United Air Lines, Inc., et al.,Appellees
No. 99-7165
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2000Decided June 27, 2000

[Copyrighted Material Omitted]
Appeal from the United States District Courtfor the District of Columbia(No. 98cv02194)
Victor H. Sparrow, III, appearing pro se, argued the cause  and filed the briefs for appellant.
Jeffrey S. Piell argued the cause for appellees.  With him  on the brief were Gary A. Orseck and Andrew A. Nicely.
Before:  Edwards, Chief Judge, Randolph and Garland,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Plaintiff Victor H. Sparrow, III  worked for United Air Lines for three years before being  terminated in 1997.  On September 15, 1998, he sued his  former employer on a number of grounds, including alleged  racial discrimination in employment.  In lieu of an answer,  United filed a motion under Federal Rule of Civil Procedure  12(b)(6), asking the district court to dismiss plaintiff's action  for "failure to state a claim upon which relief can be granted."The court granted the motion, holding that plaintiff's complaint had failed to "make out a prima facie case of discrimination."  Sparrow v. United Airlines, Inc., No. 98-2194, slip  op. at 17 (D.D.C. July 22, 1999).  Because a plaintiff need not  set forth the elements of a prima facie case at the initial  pleading stage, we reverse and remand for further proceedings.


2
* Sparrow's amended complaint included a plethora of  charges against United, ranging from breach of contract to  violation of various state laws.  The district court dismissed  the complaint in its entirety, and, in an earlier opinion, this  court affirmed as to all claims other than those alleging  "discriminatory discharge and failure to promote under 42  U.S.C. § 1981."  Sparrow v. United Air Lines, Inc., No.  99-7165 (D.C. Cir. Dec. 21, 1999).1  We review de novo the  district court's dismissal of the remaining claims under Rule  12(b)(6).  See, e.g., Croixland Properties Ltd. v. Corcoran, 174  F.3d 213, 215 (D.C. Cir. 1999).  In so doing, we must treat the  complaint's factual allegations as true, see Leatherman v.  Tarrant County Narcotics Intelligence and Coordination  Unit, 507 U.S. 163, 164 (1993), and must grant plaintiff "the  benefit of all inferences that can be derived from the facts  alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C.  Cir. 1979).  See Croixland Properties, 174 F.3d at 215.2


3
* The district court dismissed Sparrow's employment discrimination claims on the ground that "[p]laintiff cannot make  out a prima facie case of discrimination."  Sparrow, slip op. at  17.  "Specifically," the court said, "plaintiff has not pointed to  any similarly situated employees who were given preferential  treatment over him."  Id.  Moreover, "even assuming that  plaintiff could meet the elements of a prima facie case, he has  offered no evidence to demonstrate that [United's] reasons  for firing him were pretextual."  Id.


4
It is true that under the familiar McDonnell Douglas  framework for proving unlawful discrimination:


5
First, the plaintiff has the burden of proving by thepreponderance of the evidence a prima facie case ofdiscrimination.  Second, if the plaintiff succeeds in prov-ing the prima facie case, the burden shifts to the defen-dant "to articulate some legitimate, nondiscriminatoryreason for the employee's rejection."  Third, should thedefendant carry this burden, the plaintiff must then havean opportunity to prove by a preponderance of theevidence that the legitimate reasons offered by the de-fendant were not its true reasons, but were a pretext fordiscrimination.


6
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,  252-53 (1981) (quoting McDonnell Douglas Corp. v. Green,  411 U.S. 792, 802 (1973)) (citations omitted);  see Reeves v.  Sanderson Plumbing Prods., 68 U.S.L.W. 4480, 4482  (U.S.  June 12, 2000).  It is also true that "[t]o establish a prima  facie case under the McDonnell Douglas framework, [a plaintiff] must demonstrate (1) that she is a member of a protected  class;  (2) that she was similarly situated to an employee who  was not a member of the protected class;  and (3) that she  and the similarly situated person were treated disparately."Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999).3


7
None of this, however, has to be accomplished in the  complaint itself.  Under Federal Rule of Civil Procedure  8(a)(2), a claim need only contain "a short and plain statement  of the claim showing that the pleader is entitled to relief."Rule 8(e)(1) states that "[e]ach averment of a pleading shall  be simple, concise, and direct.  No technical forms of pleading  or motions are required."  And Rule 8(f) instructs that "[a]ll  pleadings shall be so construed as to do substantial justice."In Conley v. Gibson, the Supreme Court interpreted these  rules to mean 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."  355 U.S. 41, 45-46 (1957).The Court went on to hold that


8
the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim.  To the contrary, all the Rules require is"a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests....  Such simplified"notice pleading" is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.


9
Id. at 47-48 (citations omitted).


10
The grounds for the district court's dismissal of Sparrow's  complaint are inconsistent with Rule 8 and Conley.  Sparrow did not have to "make out a prima facie case of discrimination" in his complaint, specifically point to "similarly situated  employees who were given preferential treatment over him,"  or offer "evidence to demonstrate that [United's] reasons for  firing him were pretextual."  Sparrow, slip op. at 17.4  To the  contrary, "[c]omplaints 'need not plead law or match facts to  every element of a legal theory.' "  Krieger v. Fadely, 211  F.3d 134, 136 (D.C. Cir. 2000) (quoting Bennett v. Schmidt,  153 F.3d 516, 518 (7th Cir. 1998));  see Caribbean Broad. Sys.,  Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir.  1998) ("[A] plaintiff need not allege all the facts necessary to  prove its claim.");  Atchinson v. District of Columbia, 73 F.3d  418, 421-22 (D.C. Cir. 1996) ("A complaint ... need not allege  all that a plaintiff must eventually prove ....");  Sinclair v.  Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983) ("The Federal  Rules of Civil Procedure do not require a claimant to set out  the precise facts on which the claim is based....  'Notice  pleading' is sufficient.").


11
Nor are discrimination or other civil rights complaints  different in this regard.  Conley itself involved a class action  by African-American railroad clerks who alleged that their  union had breached its duty of fair representation by discriminating against them in violation of their rights under the  Railway Labor Act, 45 U.S.C. §§ 151 et seq.  In reversing the  dismissal of the complaint under Rule 12(b)(6), the Court  rejected defendant's argument that dismissal was proper  because "the complaint failed to set forth specific facts to  support its general allegations of discrimination."  Conley,  355 U.S. at 47.  Thiry-five years later, in Leatherman v.  Tarrant County, the Supreme Court reaffirmed the continuing vitality of Conley, rejecting the suggestion that a  " 'heightened pleading standard'--more stringent than the  usual pleading requirements of Rule 8(a)" should apply in civil rights cases brought under 42 U.S.C. § 1983.  507 U.S. at  164;  see id. at 167-68 (citing Conley, 355 U.S. at 47).


12
This court has followed the Supreme Court's lead.  In  Atchinson, for example, we reversed the dismissal of a complaint alleging that a municipality had violated a plaintiff's  civil rights by failing to train or supervise its police officers. See 73 F.3d at 419.  Citing Conley and Leatherman, we  rejected the district court's conclusion that plaintiff's complaint was deficient because it "failed to identify a specific  custom, policy statement, or procedure that caused his injuries," and otherwise "failed to state facts supporting" its  allegations.  Id. at 422.  It was enough, we said, that plaintiff  "alleg[ed] that [the police officer] shot him in broad daylight  on a city street so quickly after [plaintiff] was ordered to  'freeze.' "  Id.


13
In sum, we agree with the conclusion reached by Judge  Easterbrook in Bennett:  "Because racial discrimination in  employment is 'a claim upon which relief can be granted,'....'I was turned down for a job because of my race' is all a  complaint has to say" to survive a motion to dismiss under  Rule 12(b)(6).  Bennett, 153 F.3d at 518;  see Krieger, 211  F.3d at 136 (citing Bennett with approval).

B

14
Plaintiff's complaint readily meets the standard of Conley  and its progeny.  Count Five5 expressly states that it "is  founded upon 42 United States Code § 1981 for a disparate  and discriminatory application by the Defendants of the personnel, compensation, and termination policies of Defendant  United because of his race."  Compl. p 76.  It goes on to  charge that the "discriminatory, offensive, and invidious treatment which the Plaintiff has experienced" was "motivated and  predicated in principal part by a pervasive distaste for the  racial ethnicity of the Plaintiff."  Id. p 77.  And, in words that  presage the district court's own decision concerning the requirements of a prima facie case, it alleges that "a similarly  situated male Caucasian United States citizen employee of defendant United would not have experienced such disparate  treatment culminating in termination."  Id.


15
Indeed, the complaint goes into considerably more detail,  fleshing out specific claims of both discriminatory failure to  promote and discriminatory termination.


16
With respect to promotion, the complaint alleges that there  were


17
continuing violations of public policy in an atmosphere of pervasive racial discrimination beginning with:  (a) the failure of the United Air Lines Sales Department in September 1995 to hire the Plaintiff as an Account Representative at the Washington Reservations Center(IADRR);  continuing with the refusal to allow the Plain-tiff to interview for the vacant position of Manager, Vendor Contracts & Services at the Maintenance Operations Center (SFOPP) and the hiring of a Caucasian who had been unsuccessful in her application to become apeer of the Plaintiff as a Senior Contracts Specialist in May, 1998.


18
Id. at 3.  The complaint further alleges that as part of the  promotion process, in September 1995 United conducted  " 'subjective' performance tests" that it refused to show "were  either 'validated,' 'job related,' or 'required by business necessity' as mandated by the various State and Federal Civil  rights laws," id. p 20-21, and that "all of the 'successful'  candidates from the IADRR September Testing session were  Caucasian," id. p 20.6  See id. pp 33, 36, 38, 43.


19
With respect to the termination claim, Sparrow alleges that  "[t]he conduct of the named Defendants and their coconspirators culminated in the wrongful termination of the  Plaintiff, Victor H. Sparrow, III, an African-American male  citizen ... in violation of the anti-discrimination laws ... of  the United States."  Id. at 5.  That termination occurred, he alleges, notwithstanding that "[d]uring the period of his employment by Defendant United ... the Plaintiff performed in  a skillful and workmanlike manner," receiving "three (3)  outstanding 'Employee Performance Reviews' and two (2)  competitive promotions."  Id. at 6;  see id. pp 14(b), 15.  The  complaint goes on to state:  "The Plaintiff contends that he  would not have been terminated had he been a similarly  situated Caucasian male," id. at 6, and further complains that  in firing him, "Defendants failed to follow the termination  procedure set out" in United's management handbook, id.  p 49.  This detail was more than was necessary to constitute  the "short and plain statement" required by Rule 8(a).


20
In some cases, it is possible for a plaintiff to plead too  much:  that is, to plead himself out of court by alleging facts  that render success on the merits impossible.  See Bennett,  153 F.3d at 519.  In this case, Sparrow came close to crossing  that line by stating in his complaint that:  (a) he was convicted  of multiple felonies in 1982, see Compl. p 1;  (b) he answered  "no" when asked on his United employment application  whether he had ever been convicted of a felony, id. p 9;  and  (c) United advised him that he was being terminated because  of his dishonesty in failing to reveal the 1982 convictions, see  id. p 48.  As noted above, under the McDonnell Douglas  framework, even if a plaintiff succeeds in establishing a prima  facie case, an employer can overcome the resulting burden by  " 'articulat[ing] some legitimate, nondiscriminatory reason for  the employee's rejection.' "  Burdine, 450 U.S. at 252-53  (quoting McDonnell Douglas, 411 U.S. at 802).  Intentional  dishonesty on an employment application surely constitutes  such a reason.


21
But that is not the end of the matter.  First, this nondiscriminatory reason would apply at most to Sparrow's termination claim;  the complaint does not suggest that United  knew of Sparrow's false statement at the time his requests  for promotion were rejected.  See McKennon v. Nashville  Banner Publ'g Co., 513 U.S. 352, 360-63 (1995) (holding that after-acquired evidence can serve only to limit remedy, not to  preclude liability altogether).7


22
Second, even where "the defendant carr[ies] [its] burden"  of articulating a nondiscriminatory reason for its actions, "the  plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by  the defendant were not its true reasons, but were a pretext  for discrimination."  Burdine, 450 U.S. at 253;  see Reeves, 68  U.S.L.W. at 4482.  Although the district court correctly noted  that plaintiff had "offered no evidence to demonstrate that  [United's] reasons for firing him were pretextual," Sparrow,  slip op. at 17, Sparrow had not yet had the opportunity to do  so.  The district court had stayed all discovery pending its  decision on the motion to dismiss.  See Sparrow v. United  Air Lines, Inc., No. 98-02194 (D.D.C. Dec. 22, 1998) (order  staying discovery);  cf. Bennett, 153 F.3d at 519 ("Litigants  are entitled to discovery before being put to their proof.").Moreover, plaintiff's complaint did repeatedly allege that his  1982 convictions were "employed as a pretext for termination," and that "a similarly situated Caucasian employee"  would not have been terminated on the same grounds. Compl. at 3;  see id. at 1, 6.  As with any other factual  allegation in a complaint, we must treat this one as true for  purposes of evaluating dismissal under Rule 12(b)(6).  See  Leatherman, 507 U.S. at 164.  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."  Conley, 355 U.S.  at 45-46.  Although it may be doubtful whether Sparrow  ultimately will be able to establish that his conceded dishonesty was a mere pretext, we cannot say it is "beyond doubt"  that he can prove no set of facts that would do so.

II

23
Before concluding, we briefly consider two additional issues  raised by the parties.


24
First, United urges us to reject Sparrow's failure-to promote claim on the ground that he waived it below.  The  district court did not dismiss on the ground of waiver, and we  do not believe there was one.  As we held in Part I, Sparrow's complaint sets forth a claim of discriminatory failure to  promote in sufficient detail to survive a motion to dismiss. United contends that Sparrow waived that claim by not  arguing it in his opposition to United's Rule 12(b)(6) motion. It was United, however, that failed to argue the point.  The  company acknowledges that in its motion to dismiss it "did  not separately address whether the amended complaint states  a claim for race discrimination in promotions."  United Br. at  5.8  In fact, United did not mention the promotion issue at all,  addressing only the allegation of discriminatory discharge.See United Mem. in Supp. of Mot. to Dismiss at 8. Sparrow,  on the other hand, noted United's omission and complained  that "Defendants ignore the events alleged to have occurred"  in connection with the specific failures to promote.  Sparrow  Mem. in Opp'n to Mot. to Dismiss at 11.9  Sparrow then went on to discuss United's argument relating to the allegation of  discriminatory discharge.  See id. at 12-13.  Nothing more  was required to preserve the failure-to-promote claim.


25
Second, Sparrow seeks review of the district court's grant  of United's motion for sanctions against him under Federal  Rule of Civil Procedure 11.  The district court has not yet  fixed the amount of sanctions to be imposed.  As a consequence, United contends that the sanctions order is not  "final" and thus is not reviewable under 28 U.S.C. § 1291,  which grants courts of appeals jurisdiction over appeals from  final decisions of the district courts.  See Gilda Marx, Inc. v.  Wildwood Exercise, Inc., 85 F.3d 675, 677 (D.C. Cir. 1996).Although we may nonetheless have discretion to exercise  pendant jurisdiction to review the non-final Rule 11 order  along with the final dismissal under Rule 12(b)(6), see id. at  678, we will not exercise that discretion in this case.  "[W]e  entertain pendant appeals only when substantial considerations of fairness or efficiency demand it," id. at 679, and  those considerations are absent here.  There is no reason to  believe that the interest in judicial economy would be served  by deciding the sanctions issue now, nor do we have before us  a record sufficient to permit a fair determination of its merits. Moreover, since no sanctions have yet been imposed, the  plaintiff will not be injured by awaiting final resolution of the  issue in the district court.

III

26
We understand why district courts may want to alleviate  their crowded dockets by disposing quickly of cases that they  believe cannot survive in the long run.  But as the Supreme  Court held in Leatherman, this may not be accomplished by  employing heightened pleading standards except in those  cases specifically listed in Federal Rule 9(b).10  Rather, "federal courts and litigants must rely on summary judgment and  control of discovery to weed out unmeritorious claims sooner  rather than later."  Leatherman, 507 U.S. at 168-69;  see  Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("[I]t may appear  on the face of the pleadings that a recovery is very remote  and unlikely but that is not the test.");  Krieger, 211 F.3d at  136.


27
Under Rule 8, all that is required is that "the complaint  give[ ] the defendants fair notice of each claim and its basis."Atchinson, 73 F.3d at 422;  see Krieger, 211 F.3d at 136.  We  have no doubt that Sparrow's complaint did so.  See United  Br. at 3 (acknowledging that "Sparrow alleged in the amended complaint that he was passed over for three promotions,  and that he was ultimately discharged by United because he  is African-American").  Accordingly, we reverse the dismissal  of plaintiff's section 1981 claims and remand for further  proceedings consistent with this opinion.



Notes:


1
 Section 1981 prohibits racial discrimination in "the making,  performance, modification, and termination of contracts, and the  enjoyment of all benefits, privileges, terms, and conditions of the  contractual relationship."  42 U.S.C. § 1981(b);  see Carney v.  American Univ., 151 F.3d 1090, 1092-93 (D.C. Cir. 1998).


2
 We also note that Sparrow brought this action pro se, and that  the Supreme Court has instructed the lower courts to hold "allegations of [a] pro se complaint ... to less stringent standards than  formal pleadings drafted by lawyers."  Haines v. Kerner, 404 U.S.  519, 520 (1972).  However, because we decide this appeal in Sparrow's favor under the standards applicable to represented plaintiffs,  we need not decide whether Sparrow--who graduated from Harvard Law School but is not now licensed to practice law--would be  entitled to the benefit of the less stringent pro se standards  enunciated by the Court.


3
 Although the McDonnell Douglas framework was established  for proving racial discrimination under Title VII of the Civil Rights  Act of 1964, 42 U.S.C. §§ 2000e et seq., the same framework is used  for evaluating claims under 42 U.S.C. § 1981.  See Carney, 151  F.3d at 1092-93.


4
 See Powell v. Ridge, 189 F.3d 387, 394 (3d Cir. 1999);  Ortez v.  Washington County, 88 F.3d 804, 808 (9th Cir. 1996);  Ring v. First  Interstate Mortgage, Inc., 984 F.2d 924, 926-27 (8th Cir. 1993).


5
 There are two counts labeled "Five" in the amended complaint. We refer here to the second of the two.


6
 Although these paragraphs of the complaint are formally alleged  as part of Count One, which charges only breach of contract, they  (and all of paragraphs 1-70) are expressly incorporated into Count  Five by reference.  See Compl. p 75.


7
 United's brief concedes that the company did not know of  plaintiff's dishonesty until September 1997, long after the allegedly  discriminatory failures to promote occurred.  See United Br. at 7-8.


8
 United contends that it did not address the failure-to-promote  issue because Count Five of the complaint (entitled "Violation of the  Federal Civil Rights Act") did "not allege that the lost promotions  were caused by race discrimination."  United Br. at 5.  But as we  have noted above, that count did allege violations of 42 U.S.C.  § 1981 for "disparate and discriminatory application by the defendants of the personnel, compensation, and termination policies of  Defendant United because of his race."  Compl. p 76 (emphasis  added).  And while United is correct that the allegations that  plaintiff did not receive three promotions for which he applied were  made elsewhere in the complaint, see id. pp 18-20, 33, 35-36, 38, 4041, 43, those paragraphs were "incorporated by reference" in Count  Five "as if fully set out" therein, id. p 75.  See supra note 6;  see  also Compl. at 3 (describing failures to promote as occurring "in an  atmosphere of pervasive racial discrimination").


9
 See Sparrow Mem. in Opp'n at 11 (noting, with citations to  paragraphs of the complaint, United's failure to address the "events  alleged to have occurred at the Washington Reservations Center or  those involving the United Department of Governmental Affairs in  Washington, or the denial of an interview opportunity for the  Manager of Vendor Contracts").


10
 See Leatherman, 507 U.S. at 168 (noting that Rule 9(b) imposes  a particularity requirement in only two specific instances:  fraud and  mistake);  Fed. R. Civ. P. 9(b) ("In all averments of fraud or  mistake, the circumstances constituting fraud or mistake shall be  stated with particularity.").


