Gary House v. Rexam Beverage Can Company

Filing

OPINION filed: AFFIRMED, decision not for publication. Eugene E. Siler , Jr., (authoring), Circuit Judge; Eric L. Clay, Circuit Judge; and Julia Smith Gibbons, Circuit Judge. *Pursuant to the opinion correction letter (R. 34), the opinion attached to this entry has been corrected.--[Edited 11/04/2015 by CL]

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0735n.06
Case No. 15-3069

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

GARY HOUSE,

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Plaintiff-Appellant,
v.
REXAM BEVERAGE CAN COMPANY,
Defendant-Appellee.

Nov 04, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

BEFORE: SILER, CLAY, and GIBBONS, Circuit Judges.
SILER, Circuit Judge. Gary House (“House”) appeals the district court’s dismissal of his
age discrimination claim brought against his former employer, Rexam Beverage Can Company
(“Rexam”). For the following reasons, we AFFIRM.
I.
At the age of forty-eight, House was hired by Rexam, which relocated him from
Tennessee to Ohio to begin working as an assistant plant manager. In June 2013, after House had
worked for Rexam for roughly sixteen months, House’s supervisor Rick Turner (“Turner”)
placed him on a ninety-day performance improvement plan (“PIP”). Midway through the PIP, in
August 2013, Rexam terminated House’s employment. He was then forty-nine years old.

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In June 2014, House filed a complaint alleging, among other things, a claim for age
discrimination under the Age Discrimination in Employment Act (“ADEA”) and Ohio law.
According to his complaint, House was over forty years of age––and a member of a protected
class––when he was first hired and subsequently fired by Rexam. House claims that Turner
placed him on an “unwarranted and purely subjective” ninety-day PIP. House complained that he
was placed on the PIP “for no legitimate cause,” and even though he was complying with the
PIP, he was terminated “without cause.” House also asserts that Rexam “treated [him] less
favorably than substantially younger employees,” and that “substantially younger employee/s
assumed [his] duties and responsibilities.” Although House argues that he was terminated
because of his age, he also states that Rexam “admits to terminating [him] for his refusal to take
actions against subordinates and union employees that would have exposed the company to
potential[] costly liability.”
The district court dismissed the complaint under Rule 12(b)(6). With respect to the age
discrimination claim, the district court found that House offered only conclusory allegations and
failed to plead facts sufficient to permit a reasonable inference that Rexam discriminated against
House on the basis of his age. House’s appeal challenges only the dismissal of his age
discrimination claim.
II.
“The district court’s grant of a motion to dismiss is reviewed de novo.” Strayhorn v.
Wyeth Pharms., Inc., 737 F.3d 378, 387 (6th Cir. 2013). To survive a 12(b)(6) motion, a
complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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“In order to establish a prima facie case under [the ADEA], [a plaintiff] must show that:
(1) she was over 40 years old; (2) she suffered an adverse employment action; (3) she was
qualified for the position she held; and (4) she was either replaced by a person outside the
protected class or treated differently than similarly-situated individuals.” Laws v. HealthSouth N.
Ky. Rehab. Hosp. Ltd. P’ship, 508 F. App’x 404, 410-11 (6th Cir. 2012) (citing Policastro v. Nw.
Airlines, Inc., 297 F.3d 535, 538-39 (6th Cir. 2002)).
On appeal, House argues that the district court erred in dismissing his age discrimination
claim.1 We conclude, however, that the district court properly dismissed House’s complaint
because it does not plausibly allege an age discrimination claim. See Keys v. Humana, Inc.,
684 F.3d 605, 610 (6th Cir. 2012).
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” “A complaint that
allows the court to infer only a ‘mere possibility of misconduct,’” however, “is insufficient to
‘show’ that the complainant is entitled to relief and fails to meet the pleading requirements of
Rule 8.” Han v. Univ. of Dayton, 541 F. App’x 622, 626 (6th Cir. 2013) (quoting Iqbal, 556 U.S.
at 679). The “plausibility” standard laid out in Twombly and Iqbal is used for assessing whether a
complaint’s factual allegations support its legal conclusions—and that standard applies to the
element of causation in discrimination claims. See, e.g., HDC, LLC v. City of Ann Arbor,
675 F.3d 608, 612-13 (6th Cir. 2012) (affirming dismissal of Fair Housing Act claim where
alleged facts did not support plausible inference of intentional discrimination); Pedreira v. Ky.
Baptist Homes for Children, Inc., 579 F.3d 722, 728 (6th Cir. 2009) (affirming dismissal of
1

Because age discrimination claims under the ADEA and Ohio law are generally
analyzed under the same framework, see Bullock v. Totes, Inc., No. C-000269, 2000 WL
1867400, at *3 (Ohio Ct. App. Dec. 22, 2010), and because House’s age discrimination claim
was pled as a single count, we will analyze the federal and state discrimination claims together.
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religious discrimination claim where plaintiff failed to allege facts plausibly linking her
termination to religious beliefs).
The ADEA prohibits an employer from discriminating against an employee over the age
of forty because of the employee’s age. 29 U.S.C. §§ 623(a), 631(a). Although House’s
complaint “need not present ‘detailed factual allegations,’ it must allege sufficient ‘factual
content’ from which a court, informed by its ‘judicial experience and common sense,’ could
‘draw the reasonable inference’” that Rexam discriminated against House with respect to his age.
Keys, 684 F.3d at 610 (quoting Iqbal, 556 U.S. at 678-79). However, House’s complaint is
devoid of facts that would support such an inference.
In his complaint, House pleads that he is a member of a protected class based on his age,
and he alleges that, as a result of his age, he was terminated. Although his complaint claims that
Rexam “treated [him] less favorably than substantially younger employees,” and that
“substantially younger employee/s assumed [his] duties and responsibilities,” House fails to offer
any facts to support these bare assertions.2 For instance, House does not allege that Rexam made
comments to him about his age or to any other employees about their age; he does not indicate
that Rexam engaged in a pattern of terminating any of his coworkers who were forty or older; he
does not assert that Rexam placed any of his coworkers on PIPs because of their age; and
significantly, he does not allege that Rexam placed him on the PIP because of his age. Instead, he
simply alleges that Rexam placed him on an “unwarranted and purely subjective” ninety-day
PIP.

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Rather, House merely states with circularity that Rexam “treated [him] less favorably
than substantially younger employees, in part by terminating his employment on account of his
age” (emphasis added).
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By contrast, in Rhodes v. R&L Carriers, Inc., 491 F. App’x 579, 584 (6th Cir. 2012), we
reversed the district court’s dismissal of an age discrimination claim because the plaintiff pled
sufficient facts to plausibly link his termination to his age. In Rhodes, the plaintiff was
terminated after he expressed his objections to the company’s practices and procedures. Id. at
581. Among the concerns he expressed to the company was the company’s policy for
considering the age, gender, and disabilities of applicants. Id. With respect to his age
discrimination claim, the plaintiff alleged that the employer “reviewed the ages of applicants for
employment and specifically rejected applicants based on their age and also set a maximum age
limit for certain positions, including drivers.” Id. The plaintiff also alleged that “an Executive
Vice President discussed at a meeting the need to lower the average age of the workforce to
thirty-two years of age.” Id.
In Rhodes, the plaintiff’s allegation that executives of the company made express
statements about the unlawful use of age in the hiring process was sufficient to satisfy the
plausibility requirement. Id. at 584. Accordingly, the plaintiff stated “a plausible claim in which
the court [could] draw from the pleaded facts a ‘reasonable inference that the defendant is liable
for the misconduct alleged’”––that the employer terminated plaintiff because of his age. Id.
(quoting Keys, 684 F.3d at 608).
Here, House failed to provide “sufficient factual matter”—as required by Twombly and
Iqbal—to establish an inference of age discrimination. See Iqbal, 556 U.S. at 678. While House
claims he was “subjectively” placed on a PIP, he includes no facts to indicate why Rexam’s
placement of him on a PIP was subjective or unwarranted. He provides no facts regarding the
names, relative ages, or qualifications of the “substantially-younger” employees who allegedly
assumed his job duties. And as we have previously noted, “[a] person is not replaced when . . .

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the work is redistributed among other existing employees already performing related work.”
Blizzard v. Marion Technical Coll., 698 F.3d 275, 284 (6th Cir. 2012) (quoting Grosjean v. First
Energy Corp., 349 F.3d 332, 336 (6th Cir. 2003)). Finally, House fails to provide any examples
of how Rexam treated those substantially younger employees more favorably, or any facts
regarding how those employees are similarly situated. Without additional factual detail, House’s
allegations are essentially recitations of the elements of an age discrimination claim. See Laws,
508 F. App’x at 410-11 (“In order to establish a prima facie case under [the ADEA], [a plaintiff]
must show that: (1) she was over 40 years old; (2) she suffered an adverse employment action;
(3) she was qualified for the position she held; and (4) she was either replaced by a person
outside the protected class or treated differently than similarly-situated individuals.” (citing
Policastro, 297 F.3d at 538-39)).
Like the plaintiffs in HDC and Pedreira, House failed to allege facts sufficient to support
a plausible inference of discrimination.3 Because House’s complaint patently lacks facts that
connect the dots between House’s termination and his age, we affirm the district court’s
dismissal of his age discrimination claim.
AFFIRMED

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Moreover, the fact that Rexam hired and went to the expense of relocating House when
he was already forty-eight renders the possibility of age discrimination even more remote.
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