                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-1123


Daphne M. Craddock,

                Plaintiff - Appellant,

          v.

Lincoln National Life Insurance Company,

                Defendant – Appellee,

and

LINCOLN NATIONAL CORPORATION; LINCOLN LIFE AND ANNUITY
DISTRIBUTORS, INC.; LINCOLN FINANCIAL INVESTMENT SERVICES
CORPORATION,

                Defendants.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cv-00684-CCE-LPA)


Submitted:   June 21, 2013                  Decided:   July 22, 2013


Before DAVIS and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Norman B. Smith, SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro,
North Carolina, for Appellant.      M. Robin Davis, Joshua M.
Krasner, JACKSON LEWIS LLP, Cary, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Plaintiff-Appellant             Daphne       Craddock    appeals       the     district

court’s dismissal of her employment discrimination suit against

Defendant-Appellee             Lincoln       National        Life     Insurance        Company

(“Lincoln”),         which     terminated       her     employment          under     disputed

circumstances.           The    district        court        found         that     Craddock’s

allegations        that      Lincoln       violated    the     Age     Discrimination         in

Employment        Act   (the    “ADEA”),        29    U.S.C.     §§    621-634,        and    the

Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12101-

12213,      failed      to   state     a    claim     upon     which       relief     could   be

granted. See Fed. R. Civ. P. 12(b)(6). We vacate the judgment

and remand for further proceedings.

                                               I.

       Craddock      began     working       for     Lincoln’s       predecessor       entity,

Pilot      Life    Insurance         Company        (“Pilot”),        in    1969. 1    A     1980

automobile accident left her with a “massive brain injury,” and

rendered her unable to return to work for over a year. J.A. 40.

When       she    did     return     to      work     after     the        accident,       Pilot

       1
       The facts set out here are alleged in Craddock’s proposed
second amended complaint. As explained below, the district court
denied as futile Craddock’s motion to file the second amended
complaint, but considered the allegations therein when assessing
Lincoln’s motion to dismiss. We therefore view the second
amended complaint as the operative complaint in reviewing the
district court’s dismissal order. Given our remand for further
proceedings, the second amended complaint should be properly
docketed in the district court.



                                                3
accommodated her disabilities, apparently by assigning her to

perform filing and file maintenance, and to process mail. 2 Though

Craddock does not make clear if or how her resulting impairments

changed since the accident, at the time of her 2011 termination

they   included      “short-term      memory     impairment,       somewhat    limited

ability      in    reading   and    writing,     limited     keyboard     speed,    and

weakness of eye muscles.” J.A. 41.

       Craddock alleges that around 2010, when Lincoln appointed a

new manager of the mail room, Lincoln “embarked . . . on a

strategy and scheme to bring about [her] discharge . . . on the

basis of either her disability or her age, or both.” J.A. 41-42.

Around this time, Craddock alleges, Lincoln “imposed on [her]

and    her    co-employees”        “quality     standards”    of    98    percent   and

“quantity         standards”   of      91     percent.      J.A.    43.     Craddock’s

“quality” performance was 97.4 percent, missing the minimum goal

by .6 percent, and her “quantity” performance was 77.84 percent,

missing the minimum goal by 13.16 percent. Id.

       In May 2011 Craddock received an “oral warning” that she

had    been    making    mistakes,     and      in   June   2011    she   received    a

“written warning” that she needed to improve and become more

efficient.        J.A.   42.   Craddock         alleges     that    these     warnings


       2
       Craddock’s complaint is unclear as to whether these were
also her pre-accident job duties.



                                            4
“falsely claim[ed] that she had been making mistakes when in

fact she had not,” and “falsely stat[ed] that she needed to

improve    and    become     more    efficient,      when     in   fact       she    was

performing her job duties in an acceptably efficient manner . .

. .” J.A. 42. On July 26, 2011, Craddock received a “final

written warning” and was terminated that same day. Id. She was

59 years old at that time.

      Craddock    makes    several    additional         allegations     to    support

her claims. First, she alleges that Lincoln trained all non-

disabled   and    younger     employees       in   her    department      to    use   a

scanner, and though she repeatedly requested that training (as

she believes she could have performed scanning work despite her

disabilities), Lincoln refused to provide it. Several positions

at   Lincoln     involving    scanner     operation        were    available,       and

Craddock says she could have been reassigned to those positions.

Second, she alleges that when she started receiving warnings,

she requested reassignment to other jobs at Lincoln that she

believed she could adequately perform, but was told she could

not do so for six months (a period that had not expired by the

time she was discharged). Finally, she alleges that after her

discharge,     she   sought    to    be   rehired        by   Lincoln,    but       that

Lincoln’s human resources personnel told her she could not work

again for Lincoln, whether as a temporary or permanent employee.



                                          5
     On June 5, 2012, Craddock sued Lincoln in North Carolina

state    court,    alleging   violations      of   the     ADEA    and    the   ADA.

Lincoln removed the action to the United States District Court

for the Middle District of North Carolina. Lincoln then filed a

motion to dismiss Craddock’s complaint for failure to state a

claim. Craddock filed an amended complaint, and Lincoln filed

another motion to dismiss. Craddock then filed a second amended

complaint. In response, Lincoln filed a motion to strike the

second   amended    complaint.    On   January     11,     2013,    the   district

court entered an order granting Lincoln’s motion to dismiss and

denying as futile Craddock’s motion to             amend.

                                       II.

     We review de novo the district court’s grant of Lincoln’s

motion   to   dismiss.   CGM,    LLC   v.    BellSouth      Telecommunications,

Inc., 664 F.3d 46, 51 (4th Cir. 2011). Like the district court,

we must assume all well-pled facts to be true, and draw all

reasonable inferences in Craddock’s favor. Nemet Chevrolet, Ltd.

v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009).

However, “legal conclusions, elements of a cause of action, and

bare assertions devoid of further factual enhancement fail to

constitute well-pled facts for Rule 12(b)(6) purposes.” Id. at

255 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The

“‘[f]actual    allegations      must   be    enough   to    raise    a    right   to

relief above the speculative level’ and have ‘enough facts to

                                        6
state a claim to relief that is plausible on its face.’” Wahi v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th

Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555, 570 (2007)).

                                               III.

     We turn first to Craddock’s ADEA claim. The ADEA forbids an

employer     “to    fail        or    refuse     to       hire    or     to    discharge     any

individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment,    because          of     such     individual’s           age.”    29   U.S.C.    §

623(a)(1).

     The district court concluded that though “[t]he allegations

in   the     Second         Amended           Complaint          are     detailed,       [they]

affirmatively        show       that     Ms.     Craddock         was    not    meeting      her

employer’s    legitimate             expectations         when     she    was   terminated.”

J.A. 56.     Accordingly, the court held that Craddock had failed

to establish a prima facie case of age discrimination under the

ADEA.

     We are not persuaded that Craddock pled herself out of the

very claim she sought to assert. The district court based its

conclusion on a misreading of Fourth Circuit and Supreme Court

precedent. The court quoted Hill v. Lockheed Martin Logistics

Management,        Inc.,    354        F.3d     277       (4th    Cir.    2004),       for   the

proposition    that        to    demonstrate          a    prima       facie    case    of   age

                                                7
discrimination at the pleading stage, a plaintiff must show that

“‘(1) she is a member of a protected class; (2) she suffered

adverse employment action; (3) she was performing her job duties

at a level that met her employer’s legitimate expectations at

the time of the adverse employment action; and (4) the position

remained open or was filled by similarly qualified applicants

outside the protected class.’” J.A. 56 (quoting Hill, 354 F.3d

at 285). But that test is an evidentiary standard under the

“pretext” framework set out by McDonnell Douglas Corp. v. Green,

411    U.S.   792    (1973),      and     is       “not       a    pleading      requirement.”

Swierkiewicz        v.    Sorema     N.A.,          534       U.S.        506,     510   (2002).

Crucially, Hill applied the test at the summary judgment stage -

- a fact the district court did not recognize.

       In Swierkiewicz, the Supreme Court rejected the notion that

“the   requirements        for    establishing            a       prima    facie     case   under

McDonnell     Douglas      also     apply       to    the         pleading       standard     that

plaintiffs     must       satisfy    in        order      to       survive       a   motion     to

dismiss.” 534 U.S. at 511. This is at least in part because “if

a     plaintiff      is     able        to      produce             direct       evidence      of

discrimination, he may prevail without proving all the elements




                                               8
of a prima facie case,” which is an indirect method of proof.

Id. 3

        That leaves the question of whether the allegations in the

second amended complaint state a claim to relief under the ADEA

that is plausible on its face. Though it is a close question,

drawing all reasonable inferences in Craddock’s favor (as we

must), we conclude that they do.

        Two    of    Craddock’s       allegations     support       this    conclusion.

First,        Craddock      alleges    that       Lincoln    trained       all   younger

employees in her department to use a scanner, but despite her

requests       did    not    train     her.   Second,       Craddock     alleges      that

Lincoln’s human resources personnel told her she could not work

again for Lincoln, whether as a temporary or permanent employee.

J.A. 45-46. Lincoln may well have neglected to train Craddock,

and     refused      to   consider    rehiring      her,    based   on     one   or   more

permissible         reasons.    But    the    inference      that    Lincoln     did    so

because of Craddock’s age may also be reasonably drawn from the


        3
       In Twombly, the Court later “explicitly overruled” the
standard that a court may dismiss a complaint for failure to
state a claim only if it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations. Francis v. Giacomelli, 588 F.3d 186, 192
n.1 (4th Cir. 2009) (citing Twombly, 550 U.S. at 562-63). But
Twombly did not alter the Swierkiewicz rule that a plaintiff
need not set out the elements of a prima facie case for an
indirect method of proof in order to survive a motion to
dismiss.



                                              9
facts alleged. This suffices to allow her ADEA claim to survive

a motion to dismiss for failure to state a claim upon which

relief can be granted.

                                        IV.

     We turn next to Craddock’s ADA claim. “The ADA prohibits

discrimination against ‘a qualified individual on the basis of

disability.’” Young v. United Parcel Serv., Inc., 707 F.3d 437,

443 (4th Cir. 2013) (quoting 42 U.S.C. § 12112(a)). To plead a

claim of disability discrimination under the ADA, a plaintiff

must allege that (1) she had a disability as defined in the ADA;

(2) she was a “qualified individual,” i.e., able to perform the

essential   functions       of   her    job    with    or     without     reasonable

accommodation;    and   (3)      her   employer       took    an    adverse   action

against her on account of her disability. Id.

     The district court first concluded that neither Craddock’s

amended complaint nor the second amended complaint provided “any

factual allegations to support [the] conclusory statement” that

she was fired on the basis of her disability. J.A. 57. In the

court’s view, such allegations could have included “allegations

of   negative    comments     made     about    people       with    disabilities,”

“allegations     of   harassment       or    bias   related        to   [Craddock’s]

disability,” or “circumstantial facts supporting an inference of

bias against disabled people.” Id. Second, the court concluded

that the second amended complaint itself “establish[ed] that she

                                        10
was not qualified for her position, . . . and the only suggested

accommodation           --     that       the     employer       tolerate      the    level    of

mistakes -- is not reasonable.” Id. The court thus held that

Craddock failed to state a viable ADA claim.

       We       disagree.          Drawing         all     reasonable          inferences       in

Craddock’s favor, we conclude that the second amended complaint

states      a   plausible         claim     to     relief    under       the   ADA.    As    noted

above, Craddock alleges that all non-disabled employees in her

department           received         a    form     of     training       (i.e.,      regarding

scanning)        that       she    did     not,    that     she     could      have   performed

scanning work, and that scanning positions were available. She

also   alleges         that       Lincoln       refused     to    consider      rehiring      her.

These allegations render plausible Craddock’s claim that she was

discharged on the basis of disability, and that Lincoln failed

to reasonably accommodate her disability.

       It       is      true       that         several      of     Craddock’s           proposed

accommodations           are       not     accommodations           at    all,     but      rather

suggestions          that     Lincoln      tolerate       lower     performance       regarding

quality and quantity. But Craddock also alleges that she could

have performed other duties such as scanning, and that several

scanning positions were available. The ADA expressly recognizes

“reassignment            to       a       vacant        position”        as    a      reasonable

accommodation. 42 U.S.C. § 12111(9)(B). In short, like the age



                                                   11
claim, the disability claim is not susceptible of resolution on

the pleadings.

                                       V.

     For the reasons set forth, we vacate the judgment of the

district   court    and   remand   for      further   proceedings     consistent

with this opinion. Of course, we express no view as to the

ultimate   merits    of   Craddock’s     claims.      We   dispense   with   oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.



                                                           VACATED AND REMANDED




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