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Court eases off ‘Twiqbal’ brake

When court-watchers talk about the changing reputation of the 4th U.S. Circuit Court of Appeals, they often point to high-profile political and criminal cases.

Lawyers in the trenches have noticed other changes too, especially in civil rights and employment cases. Nowadays, the court is a little less likely to endorse qualified immunity for a law enforcement officer, or uphold summary judgment for an employer in a Title VII case.

A new appellate decision has caused plaintiff’s lawyers hearts to beat a little faster. The court may have struck a blow for plaintiffs who have been disarmed by Twiqbal’s heightened pleading standard, which says a claim must be “plausible” to advance.

Sheila Davis, a Charlottesville School Board employee, alleged a male coworker made two attempts – the second one successful – to grab her breasts because he wanted to see if they were “real.” U.S. District Judge Norman Moon said she did not state a plausible claim for Title VII sexual harassment.

The 4th Circuit disagreed, saying on Nov. 29 that Davis’ claim deserved another hearing.

“The facts alleged by Davis, including the physical nature of the harassment, state a plausible claim that the assault was ‘sufficiently severe or pervasive’ to survive review at the pleading stage,” the court said in an unpublished per curiam opinion.

Davis also “plausibly alleged that the conduct was imputable to her employer,” the panel said, because she promptly reported the first incident and suffered additional harassment after that report.

Charlottesville lawyer John E. Davidson, who represents Davis, said in an email that the upshot of all this is that those facing Rule 12(b)(6) motions on Twiqbal in employment cases can use the example of this case right away.

Davidson said his research showed that in a number of district court cases in the 4th Circuit, “Twiqbal was being used harshly on severity as well as imputability in co-worker harassment cases. This should help clean up that problem.”

Whether a particular set of allegations is “plausible” may seem like an inherently subjective decision, as reasonable jurists can readily disagree about a given case.  Even unpublished opinions are helpful to lawyers trying to weigh their fact patterns against a court’s record on what meets the test..

David W. Thomas, also of Charlottesville, represented the coworker accused of assault, whose case was not affected by the Nov. 29 opinion. A commercial litigator, Thomas works both sides of the Twiqbal standard, and he said the “plaintiff’s lawyer” in him can take advantage of decisions that let a claim move forward.

Richard H. Milnor, who represented the school board, could not be reached for comment.

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