                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-3294
                        ___________________________

         Jerry Cook, on behalf of himself and all others similar situated,

                       lllllllllllllllllllllPlaintiff - Appellant

                                          v.

                                   George’s, Inc.,

                      lllllllllllllllllllllDefendant - Appellant

                                     Glen Balch

                                         Defendant
                                  ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                         Submitted: September 24, 2019
                            Filed: March 11, 2020
                                ____________

Before KELLY, MELLOY, and STRAS, Circuit Judges.
                           ____________

MELLOY, Circuit Judge.

      The primary issue in this discrimination-in-hiring action is whether Jerry
Cook’s complaint states a claim under the Americans with Disabilities Act (ADA).
42 U.S.C. § 12101 et seq. The district court granted Defendant’s motion to dismiss
because Cook failed to allege the elements of a prima facie case of discrimination.
Because the prima facie case is an evidentiary rather than a pleading standard, and
because Cook alleged facts sufficient to state an ADA claim, we reverse. Ring v.
First Interstate Mortg., Inc., 984 F.2d 924, 925 (8th Cir. 1993).1

                                          I.

       Viewed in the light most favorable to Cook, the complaint reveals the
following. Jerry Cook has mental and physical impairments that make it difficult for
him to communicate with others, process complex information, and lift heavy objects.
At some time prior to the incident leading to this suit, Cook worked for Defendant,
George’s, Inc. (George’s), a producer of poultry and other food products. Cook was
able to do his job with reasonable accommodations for his mental and physical
limitations. Cook stopped working at George’s at some time prior to October 2015.
Based on this term of employment, George’s created a human resources (HR) file on
Cook. The file assigned Cook the code “333,” which made him “not eligible for
rehire,” Compl. ¶ 9, because of a known or perceived medical condition.2




      1
       Our decision applies with equal force to Cook’s identical claim as brought
under the Arkansas Civil Rights Act (ACRA). See Duty v. Norton-Alcoa Proppants,
293 F.3d 481, 490 (8th Cir. 2002) (explaining that we analyze ADA and ACRA
claims using the same standards).
      2
        Defendant argues that it would be improper to infer that Cook had any
employment history with George’s because the complaint does not state exactly as
much. The complaint states that code “333” applies in the context of rehiring and
refers to Cook’s past work history. Assuming, as we must, that these factual
allegations are true, and construing, as we must, all reasonable inferences in favor of
the nonmoving party, it is well within reason to read Cook’s complaint as alleging
that George’s assigned the code “333” to Cook’s file based on Cook’s prior
employment with the company.

                                         -2-
       Around October 2015, Cook applied to be rehired by George’s. Because of the
code “333” in his file, George’s management instructed the HR team that they could
interview Cook but could “not hire [him] no matter what.” Id. ¶ 16. On the day of
his interview, Cook did not show up. Cook came to George’s the next day and asked
to reschedule the interview. Upon instruction from management, the HR team
refused to reschedule Cook’s interview despite having rescheduled interviews for
other applicants who missed their interviews.

       Cook timely filed a charge of discrimination with the Equal Employment
Opportunity Commission and received a right-to-sue letter. Cook filed a class-action
complaint in the Western District of Arkansas alleging George’s had a policy of
refusing to consider code “333” applicants because of an actual, perceived, or
recorded disability. The complaint also alleged a count of retaliation. George’s did
not file an answer.

        George’s moved to dismiss the complaint for failure to state a claim, arguing
Cook failed to establish that he had a disability under the ADA and failed to allege
a causal link between any disability and George’s decision to not rehire Cook. Cook
filed a brief in opposition and moved to amend his complaint. The proposed amended
complaint included additional facts about Cook’s mental and physical impairments.

       The district court granted George’s motion to dismiss. The district court
assumed for the sake of argument that Cook stated sufficient facts to show he was
disabled under the ADA. Even so, the district court found “no facts in the Complaint
that could allow a factfinder to conclude that Cook was denied the job because of
discriminatory animus [because] . . . . [o]bviously, failing to attend a job interview is
a legitimate, non-discriminatory reason to justify an employer’s refusal to extend a




                                          -3-
job offer.”3 Order at 5, ECF No. 30. The district court did not analyze the
implications of Cook’s code “333” allegations or the allegation that George’s
management said to “not hire [Cook] no matter what.” Compl. ¶ 16. The district
court also denied Cook leave to amend, finding it to be futile.

                                           II.

       Cook argues the district court erred in dismissing his discrimination claim
based on the sufficiency of his allegations. We review de novo a district court’s
disposition of a motion to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). See McPherson v. Brennan, 888 F.3d 1002, 1003 (8th Cir.
2018).

       To survive a motion to dismiss for failure to state a claim, a complaint must
allege sufficient facts to state a facially plausible claim to relief. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); see also Fed. R. Civ. P. 12(b)(6). To determine whether
a complaint states a facially plausible claim, we accept the factual allegations in the
complaint as true and draw all reasonable inferences in the nonmovant’s favor.
Blankenship v. USA Truck, Inc., 601 F.3d 852, 853 (8th Cir. 2010). The factual
allegations must be sufficient to “raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). We must construe the
complaint “liberally.” Luney v. SGS Auto. Servs., Inc., 432 F.3d 866, 867 (8th Cir.
2005) (quotation omitted).

      The complaint is not required to fit any specific model since there is no “rigid
pleading standard for discrimination cases.” Swierkiewicz v. Sorema N.A., 534 U.S.


      3
      The district court also dismissed Cook’s retaliation claim. At oral argument,
Cook conceded that he was abandoning any appeal of the retaliation claim.
Therefore, we will not review the retaliation claim.

                                          -4-
506, 512 (2002). Instead, the “simplified notice pleading standard,” id., merely
requires that a complaint “give the defendant fair notice of what the plaintiff’s claim
is and the grounds upon which it rests,” id. (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)).

       On appeal, the parties argue over whether Cook must have alleged facts
sufficient to establish a prima facie ADA claim in his complaint in order to survive
dismissal. Precedent makes the answer clear:

      [U]nder a notice pleading system, it is not appropriate to require a
      plaintiff to plead facts establishing a prima facie case because the
      McDonnell Douglas4 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.

Swierkiewicz, 534 U.S. at 511; see also Hager v. Ark. Dep’t of Health, 735 F.3d
1009, 1014 (8th Cir. 2013) (“Under Swierkiewicz, a plaintiff need not plead facts
establishing a prima facie case of discrimination . . . in order to defeat a motion to
dismiss.”); Ring, 984 F.2d at 926 (stating that a prima facie case is an evidentiary
standard, which is not the proper measure of whether a complaint fails to state claim).
The elements of a successful ADA claim are, however, still “part of the background
against which a plausibility determination should be made.” Blomker v. Jewell, 831
F.3d 1051, 1056 (8th Cir. 2016) (quotation omitted).

      Here, the complaint states that George’s intentionally chose to deny Cook a
rescheduled interview, and therefore not rehire Cook, based on George’s knowledge
of Cook’s actual or perceived disability. The complaint relies on allegations of

      4
      McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishing the
burden-shifting framework applicable to employment discrimination actions).


                                         -5-
potential direct evidence—statements by George’s HR employees involved in (1) the
practice of discriminating against former employees with code “333” in their files and
(2) the decision to not rehire Cook “no matter what” because of his alleged disability.
Giving little weight to the allegations of this direct evidence, George’s argues Cook
must establish a prima facie case instead. This is not the correct standard at this early
stage in the litigation. See Hager, 735 F.3d at 1014. George’s further argues that, on
the face of the complaint, George’s did not rehire Cook because Cook missed the
initial interview. Without the filing of an answer or other responsive pleading, that
is speculation in the favor of Defendant and cannot support the grant of a motion to
dismiss. See Blankenship, 601 F.3d at 853 (confirming that at the motion-to-dismiss
stage of litigation, reasonable inferences must be drawn in the nonmovant’s favor).

       Finding the prima facie case standard inappropriate at this stage does not end
our inquiry. We now turn to the statutory elements of an ADA claim. The Americans
with Disabilities Act (ADA) prohibits covered employers from discriminating against
“a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A “qualified
individual” is a person “who, with or without reasonable accommodation, can
perform the essential functions” of a job. Id. § 12111(8). Prohibited discrimination
under the ADA includes intentional discrimination against a qualified individual in
hiring and “job application procedures.” Id. § 12112(a). It also includes “limiting,
segregating, or classifying a job applicant” in an adverse way because of his
disability. Id. § 12112(b)(1).

      The allegations in Cook’s complaint are sufficient to state a claim based on
these elements. Cook alleges that he suffers from a combination of mental and
physical disabilities and has a record of impairment. He does not merely state that he
has a disability. Rather, he states the effect of his impairments. He alleges that he
was able to do his job with reasonable accommodations prior to October 2015.
Whether this can support a determination that Cook is a “qualified individual” under



                                          -6-
the ADA must be left to a latter stage in the litigation. Further, and in detail, Cook
alleges that managerial staff at George’s documented Cook’s disability through code
“333” and instructed HR employees to not hire Cook on that basis. Cook alleges that
based on these instructions, and code “333,” George’s would not rehire him, or even
reschedule his interview.

      At this early stage in the litigation, Cook has plausibly alleged that George’s
refused to consider rehiring him because of his disability. In far more than a
threadbare complaint, Cook has sufficiently stated a claim.5 Given the nature of the
facts alleged, including insider information from at least one of George’s HR
employees, Cook may eventually attempt to prove intentional discrimination by
indirect and direct evidence. Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th
Cir. 2004). It is for this very reason that we do not hold Cook to alleging a rigid
prima facie case at this stage of the litigation. Swierkiewicz, 534 U.S. at 511–12.

      The district court also denied Cook’s motion to amend his complaint, finding
any amendments would be futile. “We ordinarily review the denial of leave to amend
a complaint for abuse of discretion, but when the district court denies leave on the


      5
        The dissent claims Cook’s complaint is deficient for failing to identify the job
for which Cook was applying. It should be noted, however, that nowhere in the
motion to dismiss nor in the brief supporting the motion to dismiss does George’s
assert that as a ground for dismissal. Rather, the motion to dismiss goes only to the
issues of whether Cook has adequately pleaded a disability and whether his failure
to show for the interview established a non-discriminatory reason for failing to
consider him for employment. Those were also the two issues decided by the district
court. George’s had Cook’s employment application and presumably knew the job
for which he was applying. Had George’s raised the failure to list the job in the
complaint, that deficiency could have been easily remedied by an amendment, just as
Cook set forth more details concerning his disability in the amended complaint. We
should not decide a case based upon a ground that was not urged by the moving party.


                                          -7-
basis of futility we review the underlying legal conclusions de novo.” Zutz v. Nelson,
601 F.3d 842, 850 (8th Cir. 2010) (quoting In re 2007 Novastar Fin. Inc., Sec. Litig.,
579 F.3d 878, 884 (8th Cir. 2009)). Finding, as we do above, that Cook’s original
complaint alleged sufficient facts to state a facially plausible ADA cause of action,
Twombly, 550 U.S. at 557, the same is true of Cook’s amended complaint, which
only added to the allegations made against George’s. Cook’s request for leave was
therefore not futile and should have been granted.

      For these reasons, we reverse the district court’s grant of the motion to dismiss
and denial of the motion for leave to amend.

STRAS, Circuit Judge, dissenting.

       The Americans with Disabilities Act prohibits discrimination against a
“qualified individual”: someone “who, with or without reasonable accommodation,
can perform the essential functions” of a job. 42 U.S.C. §§ 12111(8), 12112(a). To
plead this statutory element, Jerry Cook had to include enough facts in his complaint
to show that he was “qualified” for the job he sought. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
(internal quotation marks and citation omitted)). “[N]aked assertion[s]” and
“formulaic recitation[s] of the elements of a cause of action will not do.” Id.
(citations omitted).

       Cook’s complaint in this case fails to get out of the starting gate. All it says is
that the “[p]laintiff and the Class able [sic] to do his job with reasonable
accommodations.” It does not state which job, if any, he previously held with the
company, nor does it mention which job he applied for this time around. Without this
basic information, we cannot know the “essential functions” of the job, much less



                                            -8-
how he could have performed them. 42 U.S.C. § 12111(8). All we have is a
conclusory assertion lacking even a single fact in support.

      There is, to be sure, no question that Cook believes that he was “qualified,” or
he would not have said that he was “able” to do the “job.” But mere belief, coupled
with a leap of faith, cannot survive a motion to dismiss. See Hager v. Ark. Dep’t of
Health, 735 F.3d 1009, 1014–15 (8th Cir. 2013) (explaining that a discrimination
complaint must contain enough factual allegations to “raise a right to relief above the
speculative level” (citation omitted)); see also Fed. R. Civ. P. 8(a).

       I recognize that the district court did not dismiss Cook’s complaint because he
failed to allege facts in support of this particular element. Even so, Cook had the
burden of pleading enough to show that he was “qualified,” which is a threshold
statutory requirement; the allegations here are not only inadequate, but woefully
inadequate; and we may affirm on “any basis supported by the record,” Fullington v.
Pfizer, Inc., 720 F.3d 739, 747 (8th Cir. 2013) (citation omitted) (affirming the grant
of a motion to dismiss on an alternative, unargued ground).

      For these reasons, I respectfully dissent.
                          ______________________________




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