Adel Guirguis v. Movers Specialty Services, Inc.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-1104
_____________
ADEL GUIRGUIS,
Appellant
v.
MOVERS SPECIALTY SERVICES, INC.
Appellee.
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 08-cv-4154)
District Judge: Honorable Stewart Dalzell
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Submitted Under Third Circuit LAR 34.1(a)
September 24, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges.
Filed: September 24, 2009
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Adel Guirguis appeals from the order of the United States District Court for the
Eastern District of Pennsylvania dismissing his complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. For the reasons that follow, we will affirm.

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The legal analysis governing Guirguis’s PHRA claim is identical to that under1
Title VII, and the discussion that follows applies to both claims. See Goosby v. Johnson
& Johnson Med., Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000) (“The analysis required for
adjudicating [plaintiff’s] claim under PHRA is identical to a Title VII inquiry ... , and we
therefore do not need to separately address her claim under the PHRA.”).
The complaint alleges that Movers discriminated against Guirguis due to his “native2
origin,” which is not a defined class under Title VII. (App. at 11.) The District Court
construed this averment as a disparate treatment claim on the basis of national origin.
The parties do not contest that characterization.
2
I. Background
Guirguis brought suit against his former employer, Movers Specialty Services, Inc.
(“Movers”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17, and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.
Cons. Stat. §§ 951-63. Guirguis, who is of Arab descent and a native of Egypt, contends1
that Movers terminated his employment on the basis of his national origin.2
Paragraphs 7 through 9 of the complaint, which read as follows, contain the
entirety of Guirguis’s factual averments:
7. Plaintiff began working for the defendant in 2000 in the accounting
department. Plaintiff was employed by the defendant from that day
until February 14, 2006, when he was terminated by the defendant
in violation of his civil rights.
8. Plaintiff is foreign born, is an Arab, having been born in Egypt on
June 20, 1947.
9. On February 14, 2006, plaintiff was terminated by the defendant in
violation of his rights due to the fact he is Arab, due to his native
origin, having been born in Egypt.
(App. at 11.)

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In light of its disposition, the District Court did not discuss the exhaustion issue.3
Guirguis filed the first motion on December 15, 2008 and an amended motion on4
December 22.
The District Court exercised federal question jurisdiction over Guirguis’s Title VII5
claim under 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f) and supplemental jurisdiction
over his PHRA claim under 28 U.S.C. § 1367. We have appellate jurisdiction over the
final decision of the District Court under 28 U.S.C. § 1291.
3
Movers sought dismissal, charging that Guirguis had neglected to exhaust
administrative remedies and that his complaint failed to state a claim upon which relief
could be granted. Guirguis did not respond to the latter argument, and the District Court
held that he had conceded Movers’ challenge by failing to say how his complaint made
out a cognizable claim for relief. The Court nevertheless went on to review the substance
of Guirguis’s allegations, determining that the complaint indeed lacked sufficient factual
content to raise a plausible right to relief under the pleading standard established in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The District Court thus dismissed the
complaint and closed the case. Guirguis did not request an opportunity to file an3
amended complaint but filed two motions for reconsideration of the Court’s Rule4
12(b)(6) ruling. The District Court denied both motions. This timely appeal followed.
II. Discussion5
Guirguis argues that the District Court erred when it dismissed his complaint,
which he contends adequately stated a claim. He also claims that the Court committed

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We have applied Twombly and Iqbal’s pleading requirements to employment6
discrimination claims, see Fowler v. UPMC Shadyside, --- F.3d ---, 2009 WL 2501662, at
*5-6 (3d Cir. Aug. 18, 2009); Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d
315, 322 (3d Cir. 2008), but the quantum of facts that a discrimination complaint should
contain may bear further development. This case, though, provides a poor vehicle for that
task because Guirguis relies in large measure upon bare legal conclusions that would
likely have been insufficient even under the pre-Twombly pleading standard. See, e.g.,
Papasan, 478 U.S. at 286 (holding, prior to Twombly, that courts were not required to
accept the truth of legal conclusions contained in a plaintiff’s complaint). They are
certainly deficient in the post-Twombly era. Accordingly, we have no occasion in this
case to address the character or weight of the factual allegations that a Title VII complaint
must contain to survive a Rule 12(b)(6) motion to dismiss.
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error when it closed his case without sua sponte granting him leave to amend, which
effectively dismissed his claims with prejudice.
A. Failure to State a Claim
We conduct a de novo review of a Rule 12(b)(6) dismissal of a complaint. See
Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). The Federal Rules of
Civil Procedure require that a complaint contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To avoid dismissal,
a complaint must set forth facts that raise a plausible inference that the defendant inflicted
a legally cognizable harm upon the plaintiff. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009); Twombly, 550 U.S. at 556; Phillips, 515 F.3d at 234. Conclusory allegations of6
liability do not suffice. See Iqbal, 129 S. Ct. at 1950 (opining that the federal pleading
standard “marks a notable and generous departure from the hyper-technical, code-

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pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions”).
A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual
allegations in the complaint and must draw all reasonable inferences in favor of the non-
movant. Gross v. German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir. 2008).
Legal conclusions receive no such deference, and the court is “not bound to accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although a plaintiff may use
legal conclusions to provide the structure for the complaint, the pleading’s factual content
must independently “permit the court to infer more than the mere possibility of
misconduct.” Iqbal, 129 S. Ct. at 1950; Wilkerson, 522 F.3d at 321-22.
Guirguis’s complaint fails to cross the threshold established by Twombly and
Iqbal. It alleges that Guirguis is an Egyptian native of Arab descent, that Movers
discharged him, and that his termination occurred in violation of his civil rights. The
final allegation is precisely the type of factually unsupported legal conclusion that is
inadequate to surmount a Rule 12(b)(6) challenge. The remaining averments contain no
facts supporting an inference that Movers terminated Guirguis on the basis of his national
origin. Indeed, the complaint never intimates in any way why Guirguis believes that
national origin motivated Movers’ actions. In the absence of factual averments
supporting his discrimination claims, the District Court properly found that Guirguis

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Guirguis contends that Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), and our7
decision in Wilkerson compel a contrary result. Swierkiewicz was decided pursuant to the
pre-Twombly pleading standard of Conley v. Gibson, under which a complaint satisfied
Rule 8 unless “it appear[ed] beyond doubt that the plaintiff c[ould] prove no set of facts
in support of his claim which would entitle him to relief.” Conley, 355 U.S. 41, 45-46
(1975). We have re-assessed Swierkiewicz in the wake of Twombly, Iqbal, and Phillips
and have concluded “that because Conley has been specifically repudiated by both
Twombly and Iqbal, so too has Swierkiewicz, at least insofar as it concerns pleading
requirements and relies on Conley.” Fowler, --- F.3d at ---, 2009 WL 2501662, at *5.
Nevertheless, Swierkiewicz remains instructive because Guirguis’s complaint contains
significantly less factual content than the pleading at issue in that case. The Swierkiewicz
plaintiff “detailed the events leading to his termination, provided relevant dates, and
included the ages and nationalities of at least some of the relevant persons involved with
his termination.” 534 U.S. at 514. Guirguis’s complaint omits such information,
bolstering our conclusion that his claims would not have survived under the pre-Twombly
pleading regime. See supra note 6. Wilkerson also confirms the inadequacy of
Guirguis’s pleading. In Wilkerson, the plaintiff alleged that her employer instituted a
ceremony in which participants worshiped their ancestors, that she objected to this
ceremony due to her religious beliefs, and that her supervisor subsequently terminated her
without explanation. 522 F.3d at 318, 322. Guirguis’s complaint contains no similar
discussion supporting an inference that Movers acted with a forbidden motivation. The
District Court correctly decided that the absence of context from the complaint warranted
dismissal under Rule 12(b)(6).
6
failed to raise a plausible right to relief under the pleading standard established by
Twombly.7
B. Standing on the Complaint
Guirguis also contends that under Phillips the District Court should have granted
him leave to amend his complaint sua sponte, before closing his case. We review for
abuse of discretion the District Court’s failure to grant leave to amend. Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). In Phillips, which presented a
claim under 42 U.S.C. § 1983, we broadly instructed that “if a complaint is vulnerable to

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12(b)(6) dismissal, a district court must permit a curative amendment, unless an
amendment would be inequitable or futile.” Phillips, 515 F.3d at 236. Prior to Phillips,
however, we had limited this principle to cases arising under § 1983 and opined that
“it is hardly error for a district court to enter final judgment after granting a Rule 12(b)(6)
motion to dismiss when the plaintiff has not properly requested leave to amend its
complaint.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252
(3d Cir. 2007).
The interaction between Phillips and Fletcher-Harlee Corp. presents an interesting
question but one that we need not resolve on this appeal. Guirguis filed two motions for
reconsideration of the District Court’s Twombly holding, arguing that his complaint “is
not insufficient in its allegations.” (Appellee’s Supplemental App. at 4, 9.) These
motions never sought leave to amend and instead revealed an intent to stand on the
complaint. See Frederico v. Home Depot, 507 F.3d 188, 192-93 (3d Cir. 2007) (holding
that a plaintiff elected to stand on her complaint by repeatedly asserting the validity of her
averments and by failing to seek leave to amend following dismissal). Having expressed
a desire to adhere to his pleading, Guirguis cannot persuasively ascribe error to the
District Court for not providing him an unsolicited opportunity to amend his complaint.
III. Conclusion
Guirguis’s complaint contains only a factually unsupported averment of
discrimination, and he clung to that version of his pleading. The District Court was thus

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correct to grant dismissal and did not abuse its discretion by not sua sponte affording him
leave to amend. We will affirm the order dismissing his complaint, as well as the order
denying reconsideration of the dismissal.

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