                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                               File Name: 12a0204p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                               X
                                                -
 KATHRYN KEYS,
                                                -
                           Plaintiff-Appellant,
                                                -
                                                -
                                                    No. 11-5472
          v.
                                                ,
                                                 >
                                                -
                        Defendant-Appellee. -
 HUMANA, INC.,
                                                -
                                               N
                  Appeal from the United States District Court
               for the Western District of Kentucky at Louisville.
           No. 3:09-CV-834—Charles R. Simpson, III, District Judge.
                         Decided and Filed: July 2, 2012
    Before: COOK and STRANCH, Circuit Judges; LAWSON, District Judge.*

                               _________________

                                    COUNSEL
ON BRIEF: David A. Branch, LAW OFFICE OF DAVID A. BRANCH &
ASSOCIATES, PLLC, Washington, D.C., for Appellant. Craig Peter Siegenthaler,
Cynthis Blevins Doll, William C. Vail, Jr., FISHER & PHILLIPS LLP, Louisville,
Kentucky, for Appellee.

                               _________________

                                    OPINION
                               _________________

       JANE B. STRANCH, Circuit Judge. Plaintiff-Appellant Kathryn Keys filed a
class-action lawsuit against her former employer Defendant-Appellee Humana, Inc.,
alleging claims of race discrimination under the Civil Rights Act of 1991, 42 U.S.C.
§ 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The


       *
         The Honorable David M. Lawson, United States District Judge for the Eastern
District of Michigan, sitting by designation.

                                         1
No. 11-5472        Keys v. Humana, Inc.                                           Page 2


district court granted Humana’s Motion to Dismiss Keys’s Amended Complaint after
finding that Keys failed to plead a prima facie case of race discrimination under the
burden-shifting framework of McDonnell Douglas. This appeal followed. Because the
McDonnell Douglas framework does not apply at the pleading stage and for the
following reasons, we REVERSE the judgment of the district court and REMAND for
further proceedings consistent with this opinion.

                                 I. BACKGROUND

       Because this appeal arises from a decision at the motion to dismiss stage, we
draw the facts from the allegations of the Amended Complaint. Kathryn Keys, an
African American female, began working for Humana in March 2005. Keys was
recruited from Washington, D.C., interviewed for a Director position, and offered the
position on the day of her interview. She was part of a group of directors being hired to
work for Anita Teets, a Caucasian female. Keys was the only African American
Director on Teets’s new management team. When Keys received her offer letter, she
was offered a position with the title of “Consultant Leader,” instead of Director.
Caucasian candidates who accepted Director positions under Teets received the correct
title. Following Keys’s complaints, her title ultimately was corrected to state the
position she had been offered and had accepted. Caucasian Directors who reported to
Teets were also given a compensation plan that included a Management Incentive
Program (“MIP”) of 25%, while Keys was initially given only a MIP of 15%. When she
began employment, Keys reported to a Vice President and supervised ten to twelve
employees.

       In October 2005, Teets announced that James Thomas, a Caucasian male, would
be a support person to all of the Directors. Thomas immediately began focusing on
accounts managed by Keys and was later assigned her duties. Around this time, Keys
was no longer invited to the weekly sales meetings organized by the Vice President even
though the other Directors, all Caucasian, were invited.
No. 11-5472        Keys v. Humana, Inc.                                         Page 3


       In February 2006, Humana reorganized its management staff and removed Keys
from her position, placing her in the role of Individual Contributor. None of the
Caucasian Directors who reported to Teets or any other Vice President were removed
from their Director positions in this reorganization. In her new role, Keys no longer
supervised ten to twelve employees and she was required to report to a Director, a
position she previously held, rather than to a Vice President. In August 2006, Keys was
placed on a performance improvement plan despite the fact that she met her performance
expectations. The Amended Complaint alleges that “[s]imilarly situated Caucasian
employees at the director or individual contributor level” were not placed on
performance improvement plans; however, around the same time, ten to twelve African
American manager-level employees were placed on performance plans and then forced
to resign or were terminated.

       In October 2006, Keys filed a complaint with the Associate Relations Department
alleging she was not being treated fairly due to her race and/or gender. Humana began
an investigation, but concluded that Keys’s complaint was unfounded. Keys stayed in
her Individual Contributor position and remained under the performance plan. In June
2007, Keys requested an interim assessment to counter the 2006 performance assessment
and, in October 2007, she received a favorable written assessment.

       In January 2008, Keys’s management team reorganized again and another
management level was created above her position. Keys then reported to Jerry Brewer,
a lower-level Caucasian director, and occupied a position two levels down from the
position into which Humana had originally hired her. On June 20, 2008, Humana
terminated Keys’s employment, citing the 2006 negative performance assessment but
ignoring the 2007 favorable performance appraisal.        No Caucasian Directors or
Individual Contributors were terminated at that time. The Amended Complaint alleges
Keys’s termination was consistent with the manner in which Humana terminated or
forced the resignation of several African American professional staff members, a number
of whom were named. The Amended Complaint also alleges several specific instances
throughout her employment when Caucasian employees of Humana acted disrespectfully
No. 11-5472         Keys v. Humana, Inc.                                             Page 4


toward Keys and humiliated her. On each of these occasions, Keys reported the behavior
to her supervisor and no action was taken.

        On October 15, 2009, Keys filed this class-action suit against Humana alleging
race discrimination claims under both the Civil Rights Act of 1991, 42 U.S.C. § 1981,
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. On January 4,
2010, Humana moved to dismiss Keys’s Amended Complaint, asserting Keys had not
alleged facts sufficient to establish a prima facie case of intentional discrimination. The
district court agreed. Specifically, the district court held Keys failed to allege plausibly
that she was treated differently than similarly situated nonprotected employees. Because
the court found Keys had not plausibly alleged her individual claims of discrimination,
the court also dismissed her class-action claims. On appeal, Keys challenges the district
court’s requirement that the complaint must allege a prima facie case as articulated in
McDonnell Douglas v. Green, 411 U.S. 792 (1973), and its progeny. Alternatively, she
challenges the district court’s determination that she has not satisfied that standard.

                                     II. ANALYSIS

A.      Standard of Review

        We review a district court’s grant of a motion to dismiss de novo. Pedreira v.
Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 727 (6th Cir. 2009). We must
construe the complaint in the light most favorable to the plaintiff and accept all
allegations as true. See Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005).
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.” “Specific facts are not necessary;
the statement need only give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal
quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). However, “[f]actual allegations must be enough to raise a right to relief above
the speculative level” and to “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 555, 570. A plaintiff must “plead[] factual content that allows the
No. 11-5472         Keys v. Humana, Inc.                                             Page 5


court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

B.       Applying McDonnell Douglas at the Pleading Stage

         1.     The District Court Decision

         Humana argued in its Motion to Dismiss, and the district court found, that Keys
did not state a claim of race discrimination under either § 1981 or Title VII because the
Amended Complaint failed to allege facts that plausibly establish a prima facie case of
race discrimination. The district court relied upon our decision in White v. Baxter
Healthcare Corp., 533 F.3d 381, 391 (2008), which applied the burden-shifting
framework of McDonnell Douglas to review of a district court’s grant of summary
judgment in a claim of race discrimination based on circumstantial evidence. The district
court recited the components of a prima facie case under McDonnell Douglas that White
had applied on summary judgment, noting a plaintiff must demonstrate that: (1) she is
a member of a protected class; (2) she was qualified for her job; (3) she suffered an
adverse employment decision; and (4) she was replaced by a person outside the protected
class or treated differently than similarly situated nonprotected employees. White, 533
F.3d at 391. The district court then held that the Amended Complaint failed to allege
sufficiently that Keys was treated differently than similarly situated nonprotected
employees. Specifically, the court noted Keys’s failure to allege facts suggesting that

         the white employees to whom Keys would like the court to compare her
         were performing similar tasks to the same standards as she. Productivity
         and competence being relevant factors in making employment decisions,
         the absence of any such allegations from the complaint prevents the court
         from inferring that the employees who were not terminated were
         similarly situated to the plaintiff.

Keys v. Humana, Inc., No. 3:09-CV-834-S, 2010 WL 2961186, at *3 (W.D. Ky. July 26,
2010).
No. 11-5472         Keys v. Humana, Inc.                                            Page 6


       2.      Governing Supreme Court and Sixth Circuit Precedent

       The district court’s requirement that Keys’s complaint establish a prima facie
case under McDonnell Douglas and its progeny is contrary to Supreme Court and Sixth
Circuit precedent. In Swierkiewicz v. Sorema, the Supreme Court unanimously held that
the prima facie case under McDonnell Douglas is an evidentiary standard, not a pleading
requirement. 534 U.S. 506, 510 (2002). As the Court reasoned, “it 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.” Id. at
511. The Court explained that the precise requirements of a prima facie case can vary
depending on the context and before discovery has unearthed the relevant facts and
evidence, it may be difficult to define the appropriate formulation.           Id. at 512.
Significantly, the Supreme Court identified the possibility that discovery may produce
direct evidence of discrimination, rendering the McDonnell Douglas burden-shifting
framework inapplicable to a plaintiff’s claims. Id. at 511-12. The Supreme Court
concluded that the ordinary rules of notice pleading apply and upheld the complaint
because it gave “fair notice” of the basis of the plaintiff’s claims. Id. at 514.

       The Supreme Court’s subsequent decisions in Twombly and Iqbal did not alter
its holding in Swierkiewicz. Twombly distinguished Swierkiewicz, explaining that the
prior case “did not change the law of pleading,” but simply reemphasized that
application of the McDonnell Douglas prima facie case at the pleading stage “was
contrary to the Federal Rules’ structure of liberal pleading requirements.” Twombly, 550
U.S. at 570 (explaining that a plaintiff need not allege “‘specific facts’ beyond those
necessary to state [her] claim and the grounds showing entitlement to relief”). Since
Twombly and Iqbal, we have also recognized the continuing viability of Swierkiewicz’s
holding. See, e.g., Pedreira, 579 F.3d at 728 (holding that the McDonnell Douglas
prima facie case is not a pleading requirement and that “the ordinary rules for assessing
the sufficiency of a complaint apply”); Back v. Hall, 537 F.3d 552, 558 (2008) (same).
Recently, in HDC, LLC v. City of Ann Arbor, we again recognized the applicability of
Swierkiewicz’s holding and further noted that it would be “inaccurate to read [Twombly
No. 11-5472        Keys v. Humana, Inc.                                             Page 7


and Iqbal] so narrowly as to be the death of notice pleading and we recognize the
continuing viability of the ‘short and plain’ language of Federal Rule of Civil Procedure
8.” 675 F.3d 608, 614 (6th Cir. 2012). Therefore, it was error for the district court to
require Keys to plead a prima facie case under McDonnell Douglas in order to survive
a motion to dismiss.

       Still, the Supreme Court established a “plausibility” standard in Twombly and
Iqbal for assessing whether a complaint’s factual allegations support its legal
conclusions, and that standard applies to causation in discrimination claims. HDC, LLC,
675 F.3d at 612-13 (affirming dismissal of Fair Housing Act claim where alleged facts
did not support plausible inference of intentional discrimination); Pedreira, 579 F.3d at
728 (affirming dismissal of religious discrimination claim where plaintiff failed to allege
facts plausibly linking her termination to religious beliefs). Thus, although the Amended
Complaint need not present “detailed factual allegations,” it must allege sufficient
“factual content” from which a court, informed by its “judicial experience and common
sense,” could “draw the reasonable inference,” Iqbal, 556 U.S. at 678, 679, that Humana
“discriminate[d] against [Keys] with respect to [her] compensation, terms, conditions,
or privileges of employment, because of [her] race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added); see Barrett v. Whirlpool Corp,
556 F.3d 502, 512 (6th Cir. 2009) (“[W]e review § 1981 claims under the same standard
as Title VII claims.”). According to the Supreme Court, “plausibility” occupies that
wide space between “possibility” and “probability.” Iqbal, 556 U.S. at 678. If a
reasonable court can draw the necessary inference from the factual material stated in the
complaint, the plausibility standard has been satisfied.

C.     Sufficiency of Keys’s Individual Allegations

       Keys’s Amended Complaint tenders more than the “‘naked assertion[s]’ devoid
of ‘further factual enhancement’” that Twombly and Iqbal prohibit. See Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 557). The Amended Complaint contains
allegations that are neither speculative nor conclusory; it alleges facts that easily state
a plausible claim. The Amended Complaint alleges Humana had a pattern or practice
No. 11-5472         Keys v. Humana, Inc.                                             Page 8


of discrimination against African American managers and professional staff in hiring,
compensation, promotion, discipline, and termination. It details several specific events
in each of those employment-action categories where Keys alleges she was treated
differently than her Caucasian management counterparts; it identifies the key supervisors
and other relevant persons by race and either name or company title; and it alleges that
Keys and other African Americans received specific adverse employment actions
notwithstanding satisfactory employment performances. These factual allegations are
at least as detailed, if not more so, than those the Supreme Court found “easily satisfie[d]
the requirements of Rule 8(a)” in Swierkiewicz. See 534 U.S. at 514 (“His complaint
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.”).

D.      Keys’s Class-Action Claims

        Because we find the district court erroneously dismissed Keys’s individual claims
of discrimination, it was error to dismiss her class-action claims on the basis that she was
not a member of the alleged class. Keys adequately alleged the components of her claim
and of her class action case, both of which now may be defined further through the
discovery process. We express no opinion on whether the class ought to be certified.

                                  III. CONCLUSION

        For the foregoing reasons, we REVERSE the district court’s dismissal of Keys’s
Amended Complaint and REMAND for further proceedings consistent with this opinion.
