Pleading Comparator Similarity and Decisionmaker Knowledge: Dismissal of Title VII/ADA Discrimination and Retaliation Claims at the Rule 12(b)(6) Stage
1. Introduction
This appeal arose from the dismissal of Valerie Lowery’s pro se amended complaint for failure to state a claim. Lowery, a Black employee who alleged knee problems, sued her employer, the Jefferson County Racing Association, under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). She asserted (1) race discrimination, (2) ADA violations, and (3) retaliation under both statutes.
Factually, Lowery alleged she was hired for a customer-service position requiring standing and walking. After a supervisor noticed she limped, she was allowed to work seated shifts in “player’s awards” and in the “cash cage,” where she balanced accounts. Over six months, she allegedly misbalanced accounts three times (two “short,” one “over”). After these mistakes and a heated conversation with her manager, she was moved back to customer service.
The central issues on appeal were whether her amended complaint plausibly alleged: (a) intentional race discrimination based on a comparator, (b) retaliation tied to protected activity under Title VII/ADA, and (c) an ADA failure-to-accommodate claim (which the court treated as an appellate briefing issue).
2. Summary of the Opinion
The Eleventh Circuit affirmed the dismissal. It held:
- Title VII race discrimination: Lowery did not plead sufficient facts supporting an inference of intentional discrimination because her alleged white comparator was not shown to be similarly situated in misconduct frequency; the complaint did not allege the white employee was “short” more than once, while Lowery alleged she was moved only after being “short” twice and “over” once.
- Title VII/ADA retaliation: Lowery failed to allege a causal link between protected activity and adverse action because the complaint did not allow a reasonable inference that the decisionmaker knew about any discrimination complaint when acting; instead, the challenged actions were alleged to be “[b]ecause of [their] conversation” about account balancing.
- Failure to accommodate: The issue was deemed abandoned on appeal because Lowery listed it but did not meaningfully develop it in her brief.
3. Analysis
3.1 Precedents Cited
The opinion is largely an application of established pleading, retaliation, and appellate-waiver doctrines. Each cited authority supplies a discrete doctrinal building block:
- Adams v. Palm Beach County (citing Ounjian v. Globoforce, Inc.) — Provides the standard of review: de novo review of a Rule 12(b)(6) dismissal, accepting allegations as true and construing them favorably to the plaintiff. This frames the court’s task as evaluating plausibility from the four corners of the operative pleading.
- GSW, Inc. v. Long County — Reinforces that appellate review is limited to the amended complaint as the operative pleading, preventing reliance on earlier iterations or extraneous assertions.
- Darrisaw v. Pennsylvania Higher Educ. Assistance Agency (citing Dixon v. Hodges) — Establishes liberal construction for pro se pleadings, while implicitly confirming that liberal construction does not eliminate plausibility requirements.
- Ashcroft v. Iqbal (citing Bell Atl. Corp. v. Twombly) — Supplies the governing pleading standard: the complaint must contain more than labels or a formulaic recitation; it must allege sufficient facts to allow a reasonable inference of liability. The court repeatedly uses this plausibility lens to test comparator allegations and retaliation causation.
- Surtain v. Hamlin Terrace Found. — Articulates that a Title VII discrimination claim must allege facts suggesting intentional discrimination. The opinion uses Surtain to reject conclusory comparator assertions not supported by factual similarity.
- Stewart v. Happy Herman's Cheshire Bridge, Inc. — Provides the prima facie elements of retaliation (protected activity, adverse action, and causal link). The court’s reasoning turns on the third element.
- Jimenez v. U.S. Att'y Gen. (citing Rosado v. Sec'y, Dep't of the Navy and Martin v. Fin. Asset Mgmt. Sys.) — Supplies the causation/knowledge rule: protected expression must “somehow [figure] into” the decision, and plausibility requires facts permitting an inference that the decisionmaker actually knew of the protected expression when acting. This line of cases drives the dismissal of the retaliation claim.
- Cheffer v. Reno and Waldman v. Conway — Establish abandonment principles on appeal, including as applied to pro se litigants: issues listed but not argued are deemed abandoned.
- Sapuppo v. Allstate Floridian Ins. Co. (citing Walter Int'l Prods. Inc. v. Salinas) — Clarifies inadequate briefing: passing references and conclusory assertions without developed argument/authority do not preserve an issue for appellate review.
3.2 Legal Reasoning
A. Title VII Race Discrimination: Comparator Similarity Must Be Plausibly Alleged
Title VII bars discrimination “because of” race. At the pleading stage, the plaintiff need not prove a full evidentiary case, but must allege facts permitting a reasonable inference of intentional discrimination. Lowery’s theory was comparator-based: a white employee allegedly had unbalanced accounts in the cash cage yet was treated better.
The court’s key move was to test whether the complaint alleged the comparator was similarly situated in the material respect at issue—performance errors leading to reassignment. The amended complaint alleged:
- The white employee was allowed to stay after being “short,” but the complaint did not allege the white employee was “short” more than once.
- Lowery was moved only after three mistakes: “short” twice and “over” once.
On those pleaded facts, the differential treatment was not plausibly attributable to race because the complaint itself supplied a race-neutral distinction (the number/frequency of cash discrepancies). Thus, the comparator allegation did not support a plausible inference of intentional discrimination under Surtain v. Hamlin Terrace Found. and the Iqbal/Twombly standard.
B. Title VII/ADA Retaliation: Decisionmaker Knowledge Is Essential to Causation
Under Stewart v. Happy Herman's Cheshire Bridge, Inc., retaliation requires a causal link between protected expression (e.g., opposing discrimination) and adverse action. The opinion focuses on the pleading requirement that the decisionmaker must have known of the protected activity at the time of the decision.
Applying Jimenez v. U.S. Att'y Gen. (and its reliance on Rosado v. Sec'y, Dep't of the Navy and Martin v. Fin. Asset Mgmt. Sys.), the court explained that a complaint must contain facts allowing a reasonable inference that “the decisionmaker actually knew” about the protected expression when he acted.
Lowery’s amended complaint, as characterized by the panel, affirmatively linked the employer’s actions to a different catalyst: the “hostile” conversation about balancing accounts, including accusations of theft. Critically, the complaint did not allege:
- that the conversation included accusations of discrimination, or
- that she raised discrimination claims to the Association before the supervisor’s decisions.
Without factual allegations of protected expression communicated to (or known by) the decisionmaker before the challenged actions, the causation element could not be plausibly inferred. That deficiency defeated the retaliation claim under both Title VII and the ADA’s similar anti-retaliation provision.
C. Failure to Accommodate: Appellate Abandonment Controls
Although Lowery included accommodation as an “issue,” the court treated it as abandoned because it was not developed in the argument section, relying on Cheffer v. Reno, Waldman v. Conway, and Sapuppo v. Allstate Floridian Ins. Co. (citing Walter Int'l Prods. Inc. v. Salinas). The opinion underscores that even pro se appellants must do more than mention an issue; they must present a coherent argument (and typically supporting authority) to preserve it.
3.3 Impact
Although “NOT FOR PUBLICATION,” the decision is instructive in three recurring litigation contexts in the Eleventh Circuit:
- Comparator-based discrimination pleadings: Plaintiffs relying on comparators must allege enough detail to show similarity on the specific basis for discipline or reassignment (here, the frequency of cash discrepancies). Pleadings that omit key similarity facts risk dismissal because the complaint itself may supply a non-discriminatory explanation for different outcomes.
- Retaliation pleadings centered on knowledge: The court’s application of the “decisionmaker actually knew” requirement signals that retaliation complaints should clearly allege when, how, and to whom protected complaints were made, and that the relevant decisionmaker knew of them before acting. Vague references to workplace conflict, without tying that conflict to protected opposition, will often fail at the causation step.
- Pro se appellate practice: The abandonment holding is a practical warning: listing an issue is not enough. Failure-to-accommodate and other claims can be lost on appeal through under-briefing, even when they might have been substantively viable.
4. Complex Concepts Simplified
- “Failure to state a claim” (Rule 12(b)(6)): The court assumes the complaint’s factual allegations are true, but asks whether those facts—without speculation—plausibly show the defendant is legally liable.
- Plausibility (Twombly/Iqbal): A complaint must tell a concrete story with enough factual detail to make liability a reasonable inference, not merely a possibility.
- Comparator evidence (Title VII): When arguing “a similarly situated employee was treated better,” the comparator must be similar in the ways that matter to the employer’s decision (same kind of job expectations, similar misconduct history, and similar disciplinary trigger).
- Protected expression (retaliation): Complaining about unlawful discrimination (race/disability) is protected; merely having a workplace dispute (e.g., about performance issues) is not, unless the dispute includes opposition to unlawful discrimination.
- Decisionmaker knowledge (retaliation causation): An employer cannot retaliate for a complaint it did not know about. The complaint must plausibly allege the decisionmaker knew of the protected complaint before taking adverse action.
- Issue abandonment on appeal: Appellate courts generally will not decide issues that are not properly argued in the brief; a brief must do more than mention the issue in passing.
5. Conclusion
The Eleventh Circuit affirmed dismissal because Lowery’s amended complaint did not plausibly allege (1) race discrimination—her comparator allegations did not show materially similar circumstances—and (2) retaliation—her allegations did not support an inference that the decisionmaker knew of protected discrimination complaints when acting. The court also deemed any failure-to-accommodate issue abandoned due to inadequate briefing on appeal.
In practical terms, the opinion reinforces that even liberally construed pro se pleadings must include specific factual content: comparator similarity for disparate treatment, and decisionmaker knowledge for retaliation causation—while appellate courts will enforce briefing rules that can forfeit undeveloped claims.
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