Ian Lamonte Cormier v. All American Asphalt

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IAN LAMONTE CORMIER,
Plaintiff - Appellant,
v.
ALL AMERICAN ASPHALT,
Defendant - Appellee.
No. 10-55114
D.C. No. 5:09-cv-00672-RHW-OP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted March 16, 2011
San Francisco, California
Before: HUG, W. FLETCHER, and M. SMITH, Circuit Judges.
Plaintiff Ian L. Cormier appeals the district court’s decision dismissing his
Title VII race discrimination lawsuit against his former employer, All American
Asphalt, for failure to state a claim. Cormier filed his complaint pro se. We
review the district court’s dismissal for failure to state a claim de novo. Miller v.
FILED
NOV 10 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Yokohama Tire Corp., 358 F.3d 616, 619 (9th Cir. 2004). A pro se complaint “is
to be liberally construed, and . . . must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam) (internal quotation marks and citation omitted). We reverse.
The district court concluded that it would have had “little trouble”
concluding that the allegations in Cormier’s complaint satisfy Federal Rule of Civil
Procedure 8(a) as interpreted by the Supreme Court in Swierkiewicz v. Sorema N.
A., 534 U.S. 506 (2002). It concluded, however, that under Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),
Cormier’s non-conclusory allegations did not plausibly suggest a right to relief.
However, as we recently made clear in Starr v. Baca, 652 F.3d 1202, 1213-16 (9th
Cir. 2011), Swierkiewicz is still good law after Twombly and Iqbal. This is
supported by the language of Twombly, which rejected the argument that its
analysis “runs counter to Swierkiewicz.” Twombly, 550 U.S. at 569-70.
Even without relying on Swierkiewicz, Cormier has alleged sufficient non-
conclusory facts, taken as true, to plausibly suggest an entitlement to relief.
Cormier alleged that while Shannon Garcia, his dispatcher, refused to give him and
at least one other African American forty-hour work weeks, a Mexican American
man was given more than forty-hour work weeks. He alleged that this Mexican

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American was hired during the time Cormier was receiving the minimum number
of hours per week he could be given while preventing him from claiming
unemployment benefits. Cormier further alleged that, although he had many
qualifications, he was placed under a Caucasian worker with a lower union level
who had drug problems and had recently had a driving accident. He alleged that he
was called the “N” word by foremen and leadmen while on the job. And he
alleged that he approached the owner of the company, Mr. Alderman, to discuss
what he perceived as racial discrimination, and that Mr. Alderman refused to speak
to him. These allegations are neither bare nor conclusory and, assumed true, more
than plausibly suggest an entitlement to relief.
REVERSED.

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