Colby v. Umbrella, Inc. (2006-088)
2008 VT 20
NOTICE: This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
2008 VT 20
Kerri L. Colby Supreme Court
On Appeal from
Umbrella, Inc., Jennifer (Townsend) Grant, February Term, 2007
Michelle Fay, and State of
Human Services, Department for Children and Families,
Child Development Division
Brian J. Grearson, J.
Deborah T. Bucknam and Jennifer Bucknam Black of Deborah Bucknam Associates,
St. Johnsbury, for Plaintiff-Appellant.
William H. Sorrell, Attorney
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
JOHNSON, J. In this suit for wrongful
termination, plaintiff Kerri Colby appeals the superior court order denying her
motion to amend the complaint and dismissing her claims against
Defendant Umbrella, Inc. is a
¶ 3. On May 6, 2005, plaintiff filed a complaint in Essex Superior Court naming the following as defendants: Umbrella, Inc.; Umbrella’s executive director, Michelle Fay; plaintiff’s direct supervisor, Jennifer Townsend; and the Department for Children and Families (DCF) Child Development Division. Plaintiff claimed that she was wrongfully terminated in violation of 42 U.S.C. § 1983, FEPA, and public policy. On May 9, 2005, the State moved to dismiss the claims against it pursuant to Vermont Rule of Civil Procedure 12(b)(6). In response, plaintiff filed a memorandum in opposition and a motion to amend the complaint. The amended complaint: (1) added Kimberly Keiser, Director of DCF’s Child Development Division as a defendant, (2) alleged Keiser’s personal involvement in plaintiff’s termination, (3) alleged the State was plaintiff’s employer for purposes of FEPA, and (4) added an intentional infliction of emotional distress (IIED) claim against all defendants. On January 19, 2006, the superior court denied plaintiff’s motion to amend and granted the 12(b)(6) motion dismissing all claims against the State. Plaintiff now appeals, claiming that the court abused its discretion in denying her motion to amend and in prematurely dismissing her § 1983, FEPA, and IIED claims against the State.
We begin with plaintiff’s argument that the court’s denial of her motion
to amend the complaint was an abuse of discretion. Under the rules of
civil procedure, leave to amend the complaint “shall be freely given when
justice so requires.” V.R.C.P. 15(a); Lillicrap
v. Martin, 156
The trial court denied plaintiff’s motion to amend the complaint,
reasoning that despite plaintiff’s amendments, the complaint failed to state
any claim against the State for which relief could be granted and was therefore
futile. See V.R.C.P. 12(b)(6). In
determining whether a complaint can survive a motion to dismiss under Rule 12(b)(6), courts must take the factual allegations in the
complaint as true, and consider whether “it appears beyond doubt that there
exist no facts or circumstances that would entitle the plaintiff to
relief.” Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12,
___ Vt. ___, 917 A.2d 508 (quotations omitted). Motions
to dismiss for failure to state a claim are disfavored and are rarely
granted. Gilman v.
Keeping in mind the generous standard governing Rule 15(a) motions to
amend, we first consider plaintiff’s addition of Keiser, director of the Child
Care Services Division, as a defendant in her proposed amended complaint.
As the trial court noted, under
We cannot agree with the court that plaintiff failed to allege
sufficient facts establishing state action to sustain a § 1983 claim. To
fulfill the state-actor requirement under § 1983, the claimant must demonstrate
“personal involvement” of the defendant in the alleged constitutional
violations. Moffitt v. Town of
¶ 8. In its order denying the motion to amend, the trial court failed to address plaintiff’s proposed amendments to her FEPA claim. Plaintiff argues that the amended complaint stated a legally cognizable claim under FEPA and thereby met notice-pleading requirements under Rule 8(a). Plaintiff alleged in her amended complaint that she had a “qualified disability” under FEPA at all times relevant to her claims, that the defendants failed to reasonably accomodate that disability, and that plaintiff’s termination was a “direct and proximate result of [her] disability.” Furthermore, she asserted that the State “is an employer under the definition of employer under 21 V.S.A. § 495,” and that it was therefore “liable for the wrongful actions of Defendants . . . in the termination of Plaintiff.” Again, in considering whether the court erred in denying plaintiff’s motion to amend for futility, we are mindful of the low threshold for withstanding a 12(b)(6) motion to dismiss. See Levinsky v. Diamond, 140 Vt. 595, 600-01, 442 A.2d 1277, 1280-81 (1982) (explaining that 12(b)(6) dismissal is inappropriate “unless it appears beyond doubt that there exist no circumstances or facts which the plaintiff could prove about the claim made in [her] complaint which would entitle [her] to relief”).
Under FEPA, it is unlawful for “any employer . . .
to discriminate . . . against a qualified disabled
individual.” 21 V.S.A. § 495(a)(1). While
plaintiff did not prove her “qualified disability,” in her amended complaint,
she was not required to at the pleading stage. Instead, she set out a
plain, generalized statement that she had a disability, requested accommodation
from her employer, and was fired as a result of the disability. Taking
these allegations and all reasonable inferences therefrom
as true, plaintiff adequately pleaded a FEPA claim. Although the court
ultimately dismissed plaintiff’s FEPA claim against the State, concluding that
the State was not plaintiff’s employer as defined by 21 V.S.A.§
495, it did so prematurely and with disregard for the amendments in plaintiff’s
proposed complaint. The standards for establishing a prima facie case
under FEPA are the same as those required by Title VII of the Civil Right
Act of 1964. Robertson v. Mylan
Labs., Inc., 2004 VT 15, ¶ 16, 176
Finally, the trial court rejected plaintiff’s amendment adding an
intentional infliction of emotional distress claim, reasoning that plaintiff
had failed to allege any facts that could support such a claim against the
State. An IIED claim can be sustained only where the plaintiff
demonstrates “outrageous conduct, done intentionally or with reckless disregard
of the probability of causing emotional distress, resulting in the suffering of
extreme emotional distress, actually or proximately caused by the outrageous
conduct.” Boulton v. CLD Consulting Eng’rs, Inc., 175 Vt. 413, 427, 834 A.2d 37, 49 (2003)
(citing Crump v. P & C Food Mkts., Inc.,
154 Vt. 284, 296, 576 A.2d 441, 448 (1990)). Termination of employment
alone cannot form the basis for an IIED claim. Crump, 154
¶ 11. Because we have analyzed the claims in plaintiff’s amended complaint under the 12(b)(6) standard for dismissal for failure to state a claim, we need not repeat that analysis with regard to the trial court’s decision to dismiss all claims against the State. The amended complaint adequately stated § 1983 and FEPA claims against the State, and therefore, we reverse the court’s decision with respect to those claims. As to any IIED claim against the State, it did not survive plaintiff’s motion to amend the complaint.
¶ 12. As a final matter, we respond to the dissent’s concerns. The dissent reasons that plaintiff’s statement regarding Keiser’s “personal involvement” in her termination is a legal conclusion, rather than a factual allegation, and is thereby insufficient to make out the elements of a § 1983 claim. This reasoning, however, is in direct conflict with Vermont Rule of Civil Procedure 84, which incorporates appended forms as “sufficient under the rules” and “intended to indicate the simplicity and brevity of statement which the rules contemplate.” Among the forms is a complaint for negligence which provides the following illustration:
June 1, 1970, in a public highway called
2. As a result plaintiff was thrown down and had plaintiff’s leg broken and was otherwise injured, was prevented from transacting plaintiff’s business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars.
Where plaintiff demands judgment against defendant in the sum of ten thousand dollars and costs.
V.R.C.P. Form 9. By the dissent’s reasoning, this complaint, incorporated into our rules of civil procedure, would be insufficient under our notice pleading rules because the term “negligently” is a legal conclusion, and the complaint includes no further factual allegations regarding the specific actions by the defendant that the plaintiff alleges amounted to negligence. Again, the rules expressly indicate that such complaints are sufficient and thus, the dissent’s reasoning is flawed.
Furthermore, the beauty of our rules of civil procedure is that they
strike a fair balance, at the early stages of litigation, between encouraging
valid, but as yet underdeveloped, causes of action and discouraging baseless or
legally insufficient ones. The complaint is a bare bones statement that
merely provides the defendant with notice of the claims against it. See Lane
v. Town of
¶ 14. Here, the State attempted to force a merits determination in the early stages of litigation. It used the wrong procedural vehicle for doing so. A motion to dismiss serves to identify an insufficient cause of action, like the IIED claim here, where essential elements are not alleged. There were other procedural tools at the State’s disposal, however, that it chose not to employ. In a motion for summary judgment, the defendant can present facts establishing that the plaintiff cannot prevail on its claims, so that the court may dismiss the case with confidence if the plaintiff fails to show that those facts are either disputed or have no force with respect to the legal claims. See V.R.C.P. 56. If, as the State alleges, plaintiffs’ claims are not supported by the facts, the State easily could have moved for summary judgment at little expense after conducting limited discovery—namely, taking plaintiff’s deposition. See V.R.C.P. 26(f) (authorizing court on its own motion or on motion by either party to set limitations on discovery); Iqbal, 490 F.3d at 158 (stating that court may in its discretion permit “some limited and tightly controlled reciprocal discovery so that a defendant may probe for amplification of a plaintiff’s claims and a plaintiff may probe such matters as a defendant’s knowledge of relevant facts and personal involvement in challenged conduct”). Alternatively, a motion for more definite statement under Rule 12(e) would have served the goal of providing the information that the State claims it needed to respond to plaintiff’s allegations. The dissent, like the State and court below, would decide the merits of the case at this early stage, rather than allow the civil pleading rules to serve their intended function.
Reversed and remanded.
¶ 15 BURGESS, J., dissenting in part. Surely plaintiff does not depend on pre-trial discovery to discover her own disability. Yet plaintiff fails, after two tries, to allege what disables her, why she should be entitled to a workplace accommodation for an affliction she does not identify, or why it was unreasonable not to accommodate her unknown disability. Nevertheless, the majority endorses this empty pleading, along with the rest of plaintiff’s FEPA and § 1983 complaints equally devoid of any alleged grounds for such claims, as exemplifying the “beauty” of “underdeveloped” pleading supposedly allowed under our rules of civil procedure. Ante, ¶ 13. Not so enraptured by plaintiff’s factless complaint, I respectfully dissent from the majority’s acceptance of claims based on labels in lieu of substance.
¶ 16 Plaintiff’s amended complaint on these counts is not just underdeveloped, but is so starved for substantive allegations that it barely amounts to a spectre. Plaintiff shrouds her complaint with litigation labels, or catch-phrases, such as “wrongful termination” and “qualified disability,” and a defendant’s “personal involvement” and failure to make “reasonable accommodation,” but sets forth no facts leading to her conclusions. Like plaintiff’s IIED complaint, correctly found here to lack a description of facts necessary to state the claim, ante, ¶ 10, her FEPA and civil rights complaints are nothing more than wishful thinking that fail to satisfy even the minimal requirement of Rule 8(a) to present “a statement of circumstances, occurrences, and events in support of the claim being presented.” 5 C. Wright & A. Miller, Federal Practice & Procedure § 1215, at 194 (3d ed. 2004).
¶ 17 The majority misperceives this criticism of the pleadings as a premature rush to summary judgment on lack of evidence, but the problem with plaintiff’s pleading is not evidentiary. Rather, plaintiff’s problem is her omission of any facts describing her own actual status or another’s actual conduct by which the State or its employee could be liable to her. As well explained by the trial court, plaintiff’s amended complaint failed to state a claim against Ms. Keiser under § 1983 and failed to state a claim against the State under FEPA. Plaintiff’s claims, as originally pled and as amended, were patently hollow and were properly dismissed.
¶ 18 Instead of plaintiff’s conclusions, our rules require “a short and plain statement of the claim showing that the pleader is entitled to relief.” V.R.C.P. 8(a) (emphasis added). While a party need not provide “a specific and detailed statement of the facts which constitute a cause of action,” he or she must provide “a statement clear enough ‘to give the defendant fair notice of what the plaintiff’s claim is and the grounds on which it rests.’ “ Reporter’s Notes, V.R.C.P. 8 (emphasis added) (citing the United States Supreme Court applying the same standard under Federal Rule of Civil Procedure 8(a) in Conley v. Gibson, 355 U.S. 41 (1957)); see also Lane v. Grafton, 166 Vt. 148, 152-53, 689 A.2d 455, 457 (1997) (“[A] pleading is sufficient as long as it gives fair notice of the claim and the grounds upon which it rests.” (emphasis added)). This Court, along with a number of other courts, also relies on Conley for the majority’s proposition that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 355 U.S. at 45-46 (emphasis added); see, e.g., Levinsky v. Diamond, 140 Vt. 595, 600-01, 422 A.2d 1277, 1280-81 (1982) (citing Conley, 355 U.S. at 45-46)); see also Alger v. Vt. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, __ Vt. __, 917 A.2d 508 (quoting Levinsky, 140 Vt. at 600-01, 422 A.2d at 1280-81).
Recognizing the degradation in the substance of complaints, the United
States Supreme Court recently “retired” this “no set of facts” language,
concluding that it had “been questioned, criticized, and explained away long
enough.” Bell Atl. Corp.
v. Twombly, 127
Just as an antitrust complaint in Twombly
was properly dismissed when it furnished “no clue” as to the participants in,
and the time and location of, an alleged “conspiracy” in restraint of trade,
127 S.Ct. at 1971, so too was plaintiff’s complaint
properly dismissed when it failed to allege any facts to show why she perceives
herself a state employee or how state actors were involved in any wrongful
action against her. Yet, as predicted and criticized in Twombly, the majority here relies on the “no set of
facts” passage in Conley to allow plaintiff’s wholly conclusory
statements—without any statement of grounds required by Rule 8(a)—to survive a
proper motion to dismiss. Rule 8(a) requires more. As the Supreme
Court reiterated in Twombly, to state a valid
claim a party must provide more than “labels and conclusions, and a formulaic
recitation of a cause of action’s elements will
not do.” 127
¶ 21 In Count I of her amended complaint, plaintiff alleged that Ms. Keiser, among others, maliciously and wrongfully terminated her employment in violation of 42 U.S.C. § 1983. In an apparent attempt to satisfy the “state action” requirement, plaintiff proposed to amend her complaint to include the following statement: “[u]pon information and belief, Defendant Ms. Keiser had personal involvement in the decision to wrongfully terminate [p]laintiff.” This cannot be enough, because we cannot know from the pleading what, if anything, this defendant is supposed to have done wrong. In any event, “[i]t is well established that a state official’s mere approval of or acquiescence to the conduct of a private party is insufficient to establish the nexus required for state action.” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1450 (10th Cir. 1995) (citing cases). As noted above, Rule 8(a) requires not only that a party provide “ ‘fair notice’ of the nature of the claim, but also [the] ‘grounds’ on which the claim rests.” Twombly, 127 S. Ct. at 1965 n.3 (emphasis added) (citing 5 C. Wright & A. Miller, supra, § 1202, at 94-95 (explaining that Rule 8(a) “contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented” and does not authorize a pleader’s ‘bare averment that he wants relief and is entitled to it”)).
¶ 22 The majority nevertheless finds this statement sufficient to state a claim against Ms. Keiser, reasoning that it must be taken as true for purposes of a motion to dismiss. The majority confuses unfounded conclusions with allegations of fact. While a plaintiff’s “facts must be accepted as alleged, this does not automatically extend to bald assertions, subjective characterizations and legal conclusions.” DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) (quotation and brackets omitted). Plaintiff’s assertion that Ms. Keiser “had personal involvement” in the decision to terminate her is nothing more than a bare recitation of a necessary legal element of any § 1983 claim. See, e.g., Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991) (to avoid summary judgment, plaintiff must show the “personal involvement of defendants in alleged constitutional deprivations” as a prerequisite to an award of damages under § 1983). Plaintiff alleges no facts or grounds whatsoever upon which to claim any actual personal involvement on Ms. Keiser’s part beyond plaintiff’s vague and speculative reference to some unattributed “information and belief.” What information, and what the basis is for plaintiff’s belief, remains a mystery. Plaintiff’s complaint offers not a single suggestion as to when, where, or how Ms. Keiser was allegedly involved in plaintiff’s termination. See DM Research, 170 F.3d at 56 (“[T]he factual allegations must be specific enough to justify drag[ging] a defendant past the pleading threshold.” (quotation and citation omitted)). Plaintiff’s claim stands as nothing but a bald conclusory assertion and it need not be accepted as true.
¶ 23 Indeed, we note that even in her brief, plaintiff cannot say how, or even if, Ms. Keiser was personally involved in her termination. According to plaintiff, there is “some indication that Ms. Keiser may have been involved,” and she believes that further discovery will show that Ms. Keiser was involved. Plaintiff contends that, on her beliefs alone, she is entitled to conduct discovery to determine if Ms. Keiser was properly named as a defendant.
Plaintiff misunderstands the requirements of Rule 8(a). “The need
at the pleading stage for allegations plausibly suggesting” that the elements
of a claim have been met “reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’ “ Twombly, 127
[the] concept of “the pleading threshold” is critical. The complaint should include “a short and plain statement” of the claim showing that the pleader is entitled to relief, so it need not include evidentiary detail. On the other hand, the price of entry, even to discovery, is for the plaintiff to allege a factual predicate concrete enough to warrant further proceedings, which may be costly and burdensome. Conclusory allegations in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing expedition.
DM Research, 170 F.3d at 55 (citation omitted). Plaintiff’s pleading lacks heft because it lacks facts. Plaintiff’s admission that she needs discovery because she does not know if Ms. Keiser was involved not only warns, but confirms, that she is purely on a fishing expedition.
The decision in DM Research is
instructive. In that case, the plaintiffs alleged in their complaint that
the two defendants had “conspired” with one another, and they argued that for
purposes of a motion to dismiss, the court must accept this allegation as true,
however implausible it might be.
¶ 26 This reasoning applies with equal force here. Plaintiff had several opportunities to allege sufficient facts to support her § 1983 claim. Put on notice about the factual shortcomings of her allegations by defendants’ motion to dismiss, plaintiff failed to remedy her pleading deficiencies, and her conclusory allegations simply do not suffice to state a claim under Rule 8(a). As recently reiterated in Twombly, Rule 8 “still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” 127 S.Ct. at 1965 n.3 (emphasis added). Plaintiff’s 42 U.S.C. § 1983 claim against Ms. Kesier was properly dismissed.
Plaintiff’s FEPA claim is equally deficient. To establish a claim
under FEPA, a plaintiff must allege that she was a qualified disabled
individual and that she was discharged because of her disability. See 21
V.S.A. § 495; Lowell v. Int’l Bus. Machs. Corp., 955 F. Supp. 300, 303 (D.
¶ 28 As with plaintiff’s proposed § 1983 claim, her FEPA claim consists of nothing but conclusions and labels. Such allegations do not provide defendant with notice as to the particular nature of plaintiff’s claim, they merely restate, or attempt to restate, legal elements required for any FEPA claim. Plaintiff does not, or cannot, identify the nature of her alleged disability. Plaintiff is not required to prove that she has a disability to get past a motion to dismiss, but Rule 8(a) still requires that she allege a disability so that the State can formulate a response to her allegation. See Twombly, 127 S. Ct. at 1965 n.3 (“Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.”); see also 21 V.S.A. § 495d(6) (defining term “qualified individual with a disability”); State v. G.S. Blodgett Co., 163 Vt. 175, 181, 656 A.2d 984, 988 (1995) (explaining that to be considered a “qualified handicapped individual,” a plaintiff must demonstrate the ability to perform the essential functions of the job with reasonable accommodation).
Indeed, plaintiff fails to allege any facts at
all. She does not describe the reasonable accommodation allegedly asked
for, nor does she describe the circumstances of the State’s alleged refusal to
accommodate her. Plaintiff similarly fails to state how, why, or when the
State allegedly used her disability as the basis—”pretextual”
or not—for terminating her. Seeking to respond to such allegations, a
defendant “would have little idea where to begin.” Twombly,
¶ 30 Plaintiff further fails to allege any grounds by which to claim that the State was her employer. Indeed, contrary to the majority’s contention, plaintiff does not even allege in a conclusory fashion in her amended complaint that the State was her employer. Cf. ante, ¶ 9. Instead, plaintiff asserted that “Defendant, Vermont Department of Social and Rehabilitation Services, is an employer under the definition of employer under 21 V.S.A. § 495 and is liable for the wrongful actions of Defendants Umbrella, Ms. Keiser, Ms. Fay and Ms. Grant in the termination of Plaintiff.” (Emphasis added.) Assuming the Department is “an employer” under § 495(d)(1), it hardly means that it is plaintiff’s employer. The latter half of this allegation—that the Department is “liable for the wrongful actions” of the other defendants—is nothing more than a legal conclusion, without a fact set forth as to why this could be so. It is not a factual allegation and it need not be accepted as true.
¶ 31 The only other allegations in plaintiff’s amended complaint relevant to her identification of an employer liable to her under FEPA might be her assertions that (1) “Defendant Umbrella claimed Plaintiff was an at-will employee and therefore could be terminated at will”; (2) plaintiff’s direct supervisor was an Umbrella employee; (3) Ms. Keiser “had supervisory and managerial control over Defendant Umbrella’s child care resource center;” and (4) “Defendant State of Vermont Agency of Human Services Department for Children and Families, Child Development Division (‘CDD’) is an agency of the State of Vermont with supervisory and managerial control over Umbrella’s child care resource center.” None of these allegations, taken separately or as a whole, provide a sufficient factual predicate of state employment to support plaintiff’s FEPA claim against the State.
¶ 32 It is unclear how the majority concludes that plaintiff sufficiently alleges that the State was her employer under 21 V.S.A. § 495. Ante, ¶ 9. Assuming, as claimed in the amended complaint, that DCF or its employee had supervisory and managerial control over plaintiff’s Umbrella worksite, those facts simply do not describe an employment relationship between the State and plaintiff. Clearly plaintiff does not allege any hiring or payment by the State, both factors recognized by the majority as threshold elements for establishing an employment relationship. Ante, ¶ 9 (citing United States v. City of New York, 359 F.3d 83, 90-91 (2d Cir. 2004)); see also O’Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir. 1997) (explaining that “[w]here no financial benefit is obtained by the purported employee from the employer, no ‘plausible’ employment relationship of any sort can be said to exist because although compensation by the putative employer to the putative employee in exchange for his services is not a sufficient condition, . . . it is an essential condition to the existence of an employer-employee relationship” (citation omitted)). Plaintiff never actually alleges that the State supervised or managed her. Although other tests exist to determine “employee” status under Title VII, plaintiff alleged no facts to support application of any of them. See, e.g., King v. Dalton, 895 F. Supp. 831, 837-38 (E.D. Va. 1995) (discussing various tests employed to determine “employee” status under Title VII); see also Brug v. Nat’l Coal. for the Homeless, 45 F. Supp. 2d 33, 36-37 (D.D.C. 1999) (stating that Title VII covers only those in a “direct employment relationship with a government employer,” and most important factor in determining if individual had sufficiently direct employment relationship with federal government is federal government’s right to control plaintiff’s work); Mares v. Marsh, 777 F.2d 1066, 1069 (5th Cir. 1985) (explaining that just because certain grocery baggers who worked on military base had to comply with certain Army regulations concerning dress and conduct, that was “not enough to make them employees of the Army”).
It is no answer to say that plaintiff’s claim
should survive, regardless of its lack of asserted facts, merely because it
does not appear beyond a doubt that there exist no facts or circumstances that
plaintiff could prove entitling her to relief under FEPA. Ante, ¶ 8. As pointed out above, this purported
standard, borrowed from Conley and since disavowed by its propounding
authority in Twombly, was never intended to be
a substitute for substantial pleadings. It was for empty pleadings
such as plaintiff’s that Twombly disowned the
“no possible facts” passage in Conley still mistakenly relied on by the
majority to sustain plaintiff’s complaint. Allowing such complaints,
explains Twombly, would simply settle for “Mr.
Micawber’s optimism” in place of substance, and
“would dispense with any showing of a ‘reasonably founded hope’ “ that a plaintiff would be able to make a case. 127
Contrary to the expectations of plaintiff and the majority, Rule 8(a)
does not purport to offer a passport to pretrial discovery in return for simply
claiming the possibility of a cause of action. That evidence exists or
might later be discovered from defendant to support plaintiff’s cause of action
is immaterial to the question of whether the factual allegations in her
complaint were sufficient to state a claim under the rule.
¶ 35 I would affirm the trial court’s dismissal of all counts, and am authorized to state that Justice Skoglund joins in this dissent.
The dissent argues that the United States Supreme Court’s recent decision in Bell
Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1959 (2007), overrules this language that
we originally adopted from its decision in Conley v. Gibson, 355 U.S.
41, 47 (1957), and thereby creates a new and heightened pleading
standard. Whether that is the case, and it is arguable in light of
conflicting interpretations of Twombly, see,
e.g., Iqbal v. Hasty, 490 F.3d 143,
155-59 (2d Cir. 2007), petition for cert. filed, 76 U.S.L.W. 3349 (U.S. Dec.
17, 2007), we have relied on the Conley standard for over twenty years,
and are in no way bound by federal jurisprudence in interpreting our state
pleading rules. See Levinsky v.
Diamond, 140 Vt. 595, 600-01, 442 A.2d 1277, 1280-81 (1982) (citing Conley,
 Having fully considered, and finding futile, the content of plaintiff’s amended allegations, the trial court’s refusal to formally accept the amended complaint as filed was immaterial.
Contrary to the majority’s assertion, Twombly
is not read to overrule Conley, or to impose a “new and heightened
pleading standard.” Cf. ante, ¶ 5 n.1. Nor must Twombly be read to interject a “flexible
‘plausibility standard’ ”of amplified factual pleadings for some complaints,
but not for others, as interpreted in Iqbal
v. Hasty, cited by the majority as an example of uncertainty in the meaning
of Twombly. See Iqbal,
490 F.3d 143,157-58 (2d Cir. 2007), petition for cert. filed, 76 U.S.L.W. 3349
 Plaintiff originally alleged that she was an at-will employee of Umbrella and that Umbrella was a “state actor” for purposes of 42 U.S.C. § 1983 by virtue of being subject to state regulation, but concedes in her brief that state regulation does not a state actor make. In her amended complaint, plaintiff no longer claimed to be an employee of Umbrella, although she did not identify any other employer.
 The majority’s reference to Rule of Civil Procedure Form 9, ante, ¶ 12, as a rule-sanctioned example of adequate notice pleading is facially inapposite to plaintiff’s pleadings. Form 9 expressly complains that a defendant carelessly drove a car into a pedestrian. No such clear declaration of wrongdoing appears in the instant complaint where plaintiff generally claims, but refuses to describe, “personal involvement” by Ms. Keiser in her termination. “Involvement” could suppose, among other inferences, that Ms. Keiser somehow ordered, or authoritatively advised or approved the firing, some of which conduct might, but not necessarily, be culpable. “Involvement” could just as easily be that Ms. Keiser was merely told about, was advised, or suggested or even agreed that plaintiff should be fired, none of which, without more, would necessarily render the defendant liable. Plaintiff fails to plead any wrongful act on Ms. Keiser’s part.
 To the extent that plaintiff seeks to challenge the dismissal of her § 1983 claim against the State or DCF’s Child Development Division (CDD), she waived such arguments by failing to raise them on appeal. We note, however, that it is well settled that the State is not a “person” subject to suit under § 1983, and that to the extent plaintiff sought damages from the CDD due to Ms. Keiser’s alleged actions, “respondeat superior cannot form the basis for a § 1983 claim.” Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998).
 The statute speaks of a “qualified disabled individual,” 21 V.S.A. § 495, and it appears that this is what plaintiff is referencing when she refers to her “qualified disability.”
 Exemplary of Wilkins Micawber’s manic optimism in Charles Dickens’ novel “David Copperfield,” he famously declares in Chapter 52: “Now, welcome poverty! . . . Welcome misery, welcome houselessness, welcome hunger, rags, tempest, and beggary! Mutual confidence will sustain us to the end!” Applying the actual pleading requirements of Rule 8(a), rather than the majority’s dilution, plaintiff’s factually impoverished complaint should require more to survive a motion to dismiss than optimistic confidence in her planned discovery expedition.
 It is also noteworthy that the majority’s view effectively undoes more than Rule 8(a). Since no informed answer can ever be filed in response to complaints like plaintiff’s FEPA and § 1983 claims, denials need be merely automatic. Automatic denial obviates the need for much of Rule 8(b) that promotes answers to “meet the substance of the averments” and particularly respond to particular averments, since the need for particularity in a complaint is read out of Rule 8(a) by the majority. No longer recognizing Rule 12(b)(6) motions to dismiss except for legal impossibility, and not for inadequate grounds, the majority justifies denials in all instances as “without knowledge or information sufficient to form a belief as to the truth of an averment . . . .” V.R.C.P. 8(b). What had expressly been a defendant’s option under Rule 12(e) to request a more definite statement in response to a vague complaint, the majority now mandates as a remedy instead of a motion to dismiss. The imagined remedy of a more definite statement is, of course, rendered a nullity by the majority’s holding that a vaporific complaint, like plaintiff’s, is already definite enough. Thus, the majority sends Rule 12(e) to join its companions 8(a), 8(b) and 12(b)(6) in the repository of written, but no longer observed, rules of civil procedure.