“Plausibility over Formalism” – Burgess v. Palm Tran and the Eleventh Circuit’s Blueprint for Pro Se Employment-Discrimination Pleadings

1. Introduction

Thomas Burgess, an African-American applicant for a bus-operator position at Palm Tran (the public transportation agency for Palm Beach County, Florida), filed suit pro se alleging he was denied employment because of his race and prior criminal convictions. His amended complaint raised four counts under:

Title VII of the Civil Rights Act of 1964,
the Florida Civil Rights Act (FCRA),
Florida Statute § 112.011(1)(a) (state ban-the-box analogue), and
the Palm Beach County Equal Employment Ordinance.

The district court dismissed the action under Fed. R. Civ. P. 12(b)(6). Burgess appealed. In an unpublished opinion the Eleventh Circuit affirmed, crystallising three inter-related issues that frequently bedevil employment-discrimination pleadings—particularly by pro se litigants:

The continued vitality, but non-exclusivity, of the McDonnell Douglas prima-facie framework at the motion-to-dismiss stage;
The “plausibility” requirement of Twombly/Iqbal as applied to Title VII disparate-treatment and disparate-impact theories; and
The exhaustion and factual-specificity prerequisites for state-law collateral claims (Fla. Stat. § 112.011 and local ordinances).

Although designated “DO NOT PUBLISH”, the decision supplies an important roadmap for pleading discrimination in the Eleventh Circuit and clarifies that even pro se plaintiffs must allege concrete, non-conclusory facts that make intentional discrimination or disparate impact plausible—mere reliance on statistical generalities about conviction rates or broad invocations of race is insufficient.

2. Summary of the Judgment

The Court of Appeals, per curiam, held:

Counts 1 & 2 (Title VII & FCRA): The complaint lacked factual content that could plausibly link Palm Tran’s decision to Burgess’s race; allegations that African-Americans have higher conviction rates do not nudge a race-discrimination claim “across the line from conceivable to plausible.”
Disparate Impact Theory: Burgess failed to identify a specific neutral policy or present statistical evidence correlating that policy with a protected class; therefore no disparate-impact claim was pleaded.
Right to an Evidentiary Hearing: Haines v. Kerner does not guarantee a hearing; it only mandates that a pro se litigant be afforded an opportunity to present a legally sufficient complaint. Burgess received that opportunity when the district court allowed amendment.
Count 3 (§ 112.011): Burgess pleaded no facts regarding the nature of his convictions or their relation to the job, and he failed to allege exhaustion of the statutory administrative process.
Count 4 (County Ordinance): The pleading was a conclusory incorporation of Count 1 and therefore failed under Twombly/Iqbal.

Accordingly, the Eleventh Circuit affirmed dismissal of the entire action.

3. Analysis

3.1 Precedents Cited and Their Influence

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) – Classic burden-shifting test for circumstantial evidence of discrimination. The district court used this as an organising tool, and the appellate court reiterated that although not strictly required at the pleadings stage, its elements often mirror the facts a plaintiff must ultimately allege.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) & Ashcroft v. Iqbal, 556 U.S. 662 (2009) – Established the “plausibility” standard. The Eleventh Circuit applied these cases to hold that Burgess’s allegations were too speculative.
Surtain v. Hamlin Terrace Foundation, 789 F.3d 1239 (11th Cir. 2015) – Emphasised that Title VII and FCRA claims are analysed identically; served to collapse Counts 1 & 2 into the same pleading analysis.
Tynes v. Florida Department of Juvenile Justice, 88 F.4th 939 (11th Cir. 2023) – Cited for the proposition that comparator evidence, while helpful, is not indispensable at the motion-to-dismiss stage; nonetheless a plaintiff must allege facts giving rise to a plausible inference of discrimination.
Haines v. Kerner, 404 U.S. 519 (1972) – Burgess invoked this decision for a right to an evidentiary hearing. The Eleventh Circuit distinguished it, noting Haines concerned dismissal without affording an opportunity to amend.
EEOC v. Joe’s Crab Shack, Inc., 220 F.3d 1263 (11th Cir. 2000) – Articulates the prima facie elements for disparate-impact claims; the panel used it to show Burgess’s omissions.
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) – Clarifies that formal prima-facie pleading is unnecessary; however, factual plausibility is still required.

3.2 Court’s Legal Reasoning

The panel employed a layered approach:

Identify Protected Class Allegation – Burgess alleged race (African-American) but grounded his adverse action in his criminal history. The court emphasised that having a criminal record is not itself a protected characteristic under Title VII.
Assess Factual Nexus – Allegations that “African-Americans have higher conviction rates” require the court to draw an impermissible inferential chain (race ⇒ convictions ⇒ non-hire). Twombly/Iqbal prohibit judicial speculation.
Evaluate Prima Facie Indicators (Even if not strictly required) – No similarly-situated comparators; no factual allegations of differential treatment; no concrete timeline linking application, conviction disclosure, and rejection.
Disparate Impact Elements Missing – The complaint never pinned down a neutral policy (e.g., “no-felony” hiring rule) nor offered statistical data showing racial disparity.
Administrative Exhaustion and Statutory Specificity – For § 112.011, the court required (a) facts showing the conviction was not directly related to the job, and (b) that Burgess pursued or was excused from Chapter 120 administrative remedies.
Pro Se Latitude, not Immunity – Citing Pinson v. JPMorgan Chase, the court explained that leniency does not override the notice-pleading function; Burgess had already been granted one amendment.

3.3 Likely Impact of the Decision

Although unpublished, the opinion is a persuasive authority inside the Eleventh Circuit and will likely be cited for:

Clarifying the boundaries of pro se indulgence – Courts may dismiss after a single amendment where the plaintiff still fails to supply plausible factual matter.
Re-affirming that criminal-history discrimination is not race discrimination per se – Plaintiffs must tie the adverse action to a Title VII-protected trait, not to criminal status alone.
Providing a template for evaluating county “ban-the-box” statutes – Future litigants invoking § 112.011 must plead: the level of their conviction, job duties, relationship between the two, and administrative steps taken.
Guidance on disparate impact pleading – Without naming the specific practice and attaching rudimentary statistical or factual support, such claims will not survive Rule 12(b)(6).
Re-emphasising Twombly/Iqbal in employment suits – The “multi-step inference” critique is now part of Eleventh-Circuit vocabulary for dismissing speculative discrimination claims.

4. Complex Concepts Simplified

Plausibility Standard (Twombly/Iqbal): Think of court as a bouncer; to enter litigation, a complaint must show enough ID (facts) to make it more than a guess that the claimant belongs inside. Mere conclusions are like blank IDs – the bouncer turns you away.
Disparate Treatment vs. Disparate Impact:
- Disparate treatment = intentional bias (“We do not hire Blacks”).
- Disparate impact = facially neutral rule that happens to hurt a protected group disproportionately (e.g., height requirement adversely affecting women).
Comparator Evidence: Showing a similarly situated person outside the protected class who was treated better. It is illustrative, not mandatory, but very helpful at the pleading stage.
Administrative Exhaustion: Some laws require a party to first pursue an agency process (filing with the EEOC or a state commission) before suing. If skipped, the court lacks authority to hear the claim.
§ 112.011(1)(a) Exception: Florida allows rejection of applicants with felony or first-degree misdemeanour convictions if the crime “directly relates” to job duties—e.g., embezzlement conviction for a treasurer position.

5. Conclusion

Burgess v. Palm Tran reinforces that in the Eleventh Circuit:

Rule 8 requires concrete factual allegations showing a plausible connection between protected status and adverse action—even for pro se litigants.
The McDonnell Douglas framework remains influential but is not the exclusive route to survive dismissal; nonetheless, its elements often expose pleading gaps.
Criminal-history discrimination is not automatically race discrimination; plaintiffs must bridge the causal gap with facts, not demographic generalities.
Disparate-impact claims demand identification of a specific practice plus rudimentary statistical or other evidence at the pleading stage.
State and local collateral claims, such as Fla. Stat. § 112.011 and county ordinances, come with their own exhaustion and specificity hurdles.

Ultimately, the decision serves as a cautionary tale and instructional manual for future employment-discrimination litigants—especially those proceeding without counsel—on how to plead facts that transform speculation into legal plausibility.