Thomas v. Kamtek Inc

Filing 29

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 10/28/15. (SAC )

FILED
2015 Oct-28 PM 03:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ARTHUR C. THOMAS,

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Plaintiff,
v.
KAMTEK, INC.,
Defendant.

CIVIL ACTION NO.
2:14-CV-0844-WMA

MEMORANDUM OPINION
On May 12, 2015, the court ordered plaintiff Arthur C. Thomas,
in light of its recent opinion in Savage v. Secure First Credit
Union,

–––– F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8,

2015), to show cause “why the court should not require him either
to

dismiss

all

his

claims

except

that

in

Count

One

[race

discrimination], or to pursue only one of the claims contained in
Counts Two [age discrimination], Three [disability discrimination],
and Four [retaliation], as the ‘but-for’ cause and dismiss all
other claims.” (Doc. 16). After granting Thomas an extension (Doc.
17 and Doc. 19), he filed his response on June 9, 2015 (Doc. 19).
Rather than amend his complaint, Thomas took the position that he
was not required to elect only one theory under “but for” causation
and that “[p]laintiff can legally prevail on each–or all–of her
[sic] claims.” (Doc. 19 at 5).
With discovery almost complete and the dispositive motions
deadline nearing on August 3, 2015, the court entered an order

1

extending the deadline for any response by defendant Kamtek Inc.
(“Kamtek”)

to

run

concurrently

deadline. (Doc. 20).

with

the

dispositive

motions

On August 3, 2015, Kamtek filed a motion for

summary judgment on all four of Thomas’ claims. (Doc. 21).

Thomas

filed his response to Kamtek’s motion on September 8, 2015 (Doc.
26), and Kamtek filed a reply on September 21, 2015 (Doc. 28).
Kamtek’s motion is now under submission.
For the reasons stated below, Kamtek’s motion for summary
judgment will be denied as to Count I and granted as to all other
counts.
“[C]onsidering all of the evidence and the inferences it may
yield in the light most favorable to the nonmoving party . . .
[s]ummary judgment is appropriate where the evidence shows ‘that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’” Ellis
v. England, 432 F.3d 1321, 1325 (11th Cir. 2005) (quoting Fed. R.
Civ. Proc. 56(c)) (citation omitted). “For factual issues to be
considered genuine, they must have a real basis in the record . .
. mere conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.” Id. at 1326
(citations omitted).
Count I
“Where,

as

discrimination,

here,
a

there

plaintiff

is

may

2

no

prove

direct

evidence

discrimination

of

through

circumstantial

evidence,

using

the

burden-shifting

framework

established in McDonnell Douglas.” McCann v. Tillman, 526 F.3d
1370, 1373 (11th Cir. 2008).
A. Prima facie case
“Under the McDonnell Douglas framework, [a plaintiff] must
first make a prima facie case, which generally requires a showing
that: 1) he belongs to a protected class; 2) he was qualified to do
the job; 3) he was subjected to adverse employment action; and 4)
and his employer treated similarly-situated employees outside his
class more favorably.” Humphrey v. Napolitano, 517 F. App'x 705,
708 (11th Cir. 2013) (citing Crawford v. Carroll, 529 F.3d 961, 970
(11th Cir.2008)).

It is undisputed that (1) Thomas is black and

therefore in a protected class (Doc. 1 at 2; Doc. 7 at 2) and (2)
was reasonably qualified for his position (Doc. 21 at 3; Doc. 26 at
3).

However, Kamtek says that Thomas fails to meet the third and

fourth prongs of a prima facie case (Doc. 21 at 21-24).
i.

Adverse action

“[T]o prove adverse employment action in a case under Title
VII's anti-discrimination clause, an employee must show a serious
and material change in the terms, conditions, or privileges of
employment . . . [m]oreover, the employee's subjective view of the
significance

and

adversity

of

the

employer's

action

is

not

controlling; the employment action must be materially adverse as
viewed by a reasonable person in the circumstances.” Davis v. Town

3

of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001).
While Kamtek argues at length that selection for a workplace
drug test is not an adverse action,1 it overlooks the reality that
Thomas was terminated as a result of the drug test episode.
“Termination is an adverse employment action.” McCray v. Wal-Mart
Stores, Inc., 377 F. App'x 921, 923 (11th Cir. 2010).

Therefore,

Thomas satisfies the third prong of a prima facie case for racial
discrimination.
ii. Similarly situated individuals
“In determining whether employees are similarly situated for
purposes of establishing a prima facie case, it is necessary to
consider whether the employees are involved in or accused of the
same or similar conduct and are disciplined in different ways.”
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).

“Exact

correlation is neither likely nor necessary, but the cases must be
fair congeners . . . [i]n other words, apples should be compared to
apples.” Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259
(11th Cir. 2001) (quotes omitted)).

“The relevant inquiry is not

whether the employees hold the same job titles, but whether the
employer subjected them to different employment policies.” Lathem

1

Nowhere in Thomas’ complaint (Doc. 1), deposition (Doc,
22-2), or briefing (Doc. 27) does he assert that his selection
for a drug test was an adverse action. In fact, when asked in
his deposition if “what [he] wanted . . . was [for Kamtek] to let
[him] not have to take the test that morning”, Thomas responded
“I never said that . . . I just wanted to be treated fair . . . I
took the test.” (Doc. 22-2 at 31).
4

v. Dep't of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir.
1999).
Thomas provides William Phillips, Charles McBride, and Robin
Embry as similarly situated white Kamtek employees who were treated
differently than he in respect to their drug tests. (Doc. 26 at 912).

While it is undisputed by the parties that Phillips received

more than two hours to produce urine during his drug test (Doc. 21
at 28-29; Doc. 26 at 9-10), Phillips is not a fair congener because
Kamtek offers undisputed testimony that Phillips was a different
situation under Kamtek policy being tested following treatment
after he came forward and requested treatment for a drug problem.
(Doc. 22-1 at 7; Doc. 27-2 at 6, 55).
Yet, while Phillips is dissimilar, McBride and Embry were both
drug tested under the same two hour policy as Thomas (Doc. 28 at
11-12; Doc.
testimony

on

26

at

10-11),

whether

that

and

the

two

hour

parties
time

offer
limit

conflicting
was

applied

preferentially. First, Shannon Hendon, an employee of PSI, the
temporary staffing company providing drug screening services for
Kamtek, administered the drug test to McBride and testified that
when McBride “still couldn’t provide enough urine [][a]fter about
an hour,” he phoned Kamtek HR manager Charman Meador who then told
Hendon to give McBride three hours. (Doc. 22-4 at 9-10).

While

Hendon testified “I don’t know the exact amount of time [it took
McBride to provide his urine sample]”, she also testified that
after the phone call with Meador, McBride did not produce the
5

sample “pretty quickly” but instead he had to drink more water and
they both “had to sit in the cafeteria for a while.” (Doc. 22-4 at
10).

In fact, Kamtek admits that “Meador agreed that additional

time could be given if necessary.” (Doc. 21 at 15).

Arguing in the

alternative, Kamtek tries to distinguish McBride on the basis that
he asked for more time during his drug test whereas Thomas did not.
(Doc. 21 at 30).

Aside from the disputed fact that Thomas did

implicitly request more time when being escorted off the Kamtek
premises (Doc. 22-2 at 31-32), Kamtek’s distinction is irrelevant
given the undisputed testimony that Kamtek’s two-hour policy was
inflexible
(Doc. 21 at 7, 11, Doc. 22-1 at 5; Doc. 22-2 at 18, 25; Doc. 22-4
at 6-7; Doc. 27-1 at 54-59; Doc. 27-3 at 32, 82-85).

Next, Nancy

Crowder-Deed, an employee of PSI who administered the drug test to
Embry, testified that when Embry got upset in the course of the
drug test, HR manager Meador got involved, reprimanded Crowder-Deed
for not having the “right attitude,” and then Embry was allowed
“two and a half hours” to produce her urine sample. (Doc. 27-3 at
83-84).
Therefore, when viewed in the light most favorable to Thomas,
there is more than enough evidence for a prima facie case that
during his drug test Thomas was not treated similarly to McBride
and Embry.
B.

Pretext

“When a plaintiff has established a prima facie case of
6

discrimination, the burden of production then shifts to the
defendant to offer a legitimate, nondiscriminatory reason for the
adverse employment action . . . [and] [i]f the defendant is able to
do so, the burden shifts back to the plaintiff to show that this
reason is really a pretext for unlawful discrimination” Winborn v.
Supreme Beverage Co. Inc., 572 F. App'x 672, 674-75 (11th Cir.
2014) (citing E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265,
1272 (11th Cir. 2002)).

To show pretext, the plaintiff must “come

forward with evidence, including the previously produced evidence
establishing

the

prima

facie

case,

sufficient

to

permit

a

reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse employment
decision.” Floyd v. Fed. Exp. Corp., 423 F. App'x 924, 931 (11th
Cir. 2011).

Specifically, “in cases involving alleged racial bias

in the application of discipline for violation of work rules, the
plaintiff . . . must show either (a) that he did not violate the
work rule, or (b) that he engaged in misconduct similar to that of
a person outside the protected class, and that the disciplinary
measures enforced against him were more severe than those enforced
against the other persons who engaged in similar misconduct.” Jones
v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989).
While Kamtek offers Thomas’ work-rule violation of failing to
produce a urine sample during his drug test as its legitimate,
nondiscriminatory reason for terminating him (Doc 21 at 6-9, 31-

7

33), the record contains sufficient evidence to create a genuine
issue of material fact as to whether Kamtek’s reason is pretextual.
A.

No work rule violation

The “defense that [an] employee was fired for violation of
work rules is arguably pretextual when a plaintiff submits evidence
that [he] did not violate the cited work rule.” Rojas v. Florida,
285 F.3d 1339, 1343 (11th Cir. 2002) (quotes omitted).
Neither party disputes that as an employee of Kamtek, Thomas
was subject to Kamtek’s written Drug/Alcohol Testing Policy, which
states in part:
3. An employee who test [sic] positive for drugs or alcohol
will be subject to discipline up to and including
discharge.
4. An employee who fails to appear for a drug test, or provide
a sample for such test, will be considered to have incurred
a positive test result and will be subject to disciplinary
action.
(Doc. 22-2 at 93) (emphasis added).

It was also Kamtek’s policy to

allow an employee two hours to provide a urine sample,2 whereby
failure to provide a sample in the time limit was viewed as a

2

The record only contains a summary of Kamtek’s written
Drug/Alcohol Testing Policy, which states “[a] complete copy of
the Drug and Alcohol Testing Policy may be obtained in the Human
Resources Office.” (Doc. 22-2 at 93). While the complete policy
is absent from the record and the written summary is silent on
the amount of time an employee is given for testing, both parties
agree that it was Kamtek’s policy to give employees two hours to
produce a urine sample. (Doc. 21 at 8; Doc. 26 at 5). Kamtek’s
HR manager, Charman Meador, stated in her declaration that “it
was Kamtek’s policy to allow employees two hours to produce a
sample.” (Doc. 22-1 at 5). In his deposition, Thomas similarly
acknowledged it was Kamtek’s policy to give employees a two hour
time limit to produce the urine sample. (Doc. 22-2 at 18).
8

refusal to comply or refusal to provide a sample. (Doc. 21 at 8).
Despite Kamtek’s assertion that Thomas was given the full two
hours (Doc. 21 at 24-25), the record contains conflicting testimony
and a genuine issue of material fact as to whether Thomas received
the full two hours. First, Thomas testified that contrary to Kamtek
policy, he was given “nowhere near two hours.” (Doc. 22-2 at 18,
41).3

Next, Crowder-Deed, who was present during Thomas’ drug

test,

testified

that

Thomas’

drug

screening

began

at

“6:35

approximately” (Doc. 27-3 at 44-45) but that Thomas was escorted
off the Kamtek property “before 8:30” (Doc. 27-3 at 60).
3

Crowder-

Kamtek’s focuses on certain “inconsistencies” in Thomas’
statements (Doc. 21 at 3, 23, 27), however these
“inconsistencies” are not blatant contradictions and at most
relate to Thomas’ credibility, which is assessed by the factfinder and not on summary judgment. Cf. White v. Georgia, 380
Fed. Appx. 796, 798 (11th Cir. 2010) (“[w]hen opposing parties
tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment”). While
Thomas did testify that he is “not sure” how much time he got
(Doc. 22-2 at 39), when he was asked “[y]ou did get the two hours
though, didn’t you?”, Thomas replied “No, sir.” (Doc. 22-2 at
39). When asked again later in his deposition “you really had
about two hours to take the test; right?”, Thomas again replied
“No, I didn’t.” (Doc. 22-2 at 41). Additionally, in Thomas’ EEOC
charge he stated that he was discharged from Kamtek because he
“could not produce enough urine sample for a random drug test
during a 45 minute period.” (Doc. 1-1 at 3; Doc. 22-2 at 98,
187). When asked about the “45 minute period” during his
deposition, Thomas acknowledged that “[i]t could be [inaccurate]
. . . [i]t could be right,” but that even though he was not able
to say how long he did have “[i]t was -- it was -- it might have
been right around 45 minutes, but it was nowhere near two
hours.”(Doc. 22-2 at 41). Further, Crowder-Deed testified that
she and Thomas were in the bathroom and locker room area for
testing “[a]pproximately . . . thirty, thirty-five minutes.”
(Doc. 27-3 at 58).
9

Deed further stated that she recalled Thomas stating “he needed two
hours, and he's not been given the two hours to produce the urine
. . . [a]nd that white employees get two hours, and black employees
do not get two hours.” (Doc. 27-3 at 55-56).

Finally, Hendon, not

physically present during Thomas’ drug screening, testified that
she received a phone call from Thomas the morning of the drug
screen where he told her that “[h]e wasn't allotted enough time
[,two hours,] to give a urine sample.” (Doc. 22-4 at 6-7).

Hendon

further testified that she was not aware of any employee given less
than two hours “other than Arthur Thomas.” (Doc. 22-4 at 11).
Therefore, when viewed in the light most favorable to Thomas, this
testimony creates a genuine issue of material fact as to whether
Thomas was given the required two hours and therefore whether he
violated Kamtek’s drug policy.
B. Comparators and deviation from policy
“A typical means of establishing pretext is through comparator
evidence.” Walker v. St. Joseph's/Candler Health Sys., Inc., 506 F.
App'x 886, 889 (11th Cir. 2013). “Especially relevant to such a
showing

[of

pretext]

would

be

evidence

that

white

employees

involved in acts against petitioner of comparable seriousness . .
. were nevertheless retained or rehired.” McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 804 (1973); see Rioux v. City of Atlanta,
Ga., 520 F.3d 1269, 1277 (11th Cir. 2008) (“[w]e, too, address the
sufficiency of any comparator evidence in our examination of

10

pretext, rather than as an element of [plaintiff’s] prima facie
case . . .”)

“The bending of established rules may, of course, be

suggestive of discrimination.” Walker v. Prudential Prop. & Cas.
Ins. Co., 286 F.3d 1270, 1279 (11th Cir. 2002) (citation omitted);
see Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985)
(“[d]epartures

from

normal

procedures

may

be

suggestive

of

discrimination”).
Consistent with Thomas’ prima facie case, and viewing the
testimony of Thomas, Hendon, and Crowder-Deed in the light most
favorable to Thomas, comparators McBride and Embry were given the
full two hours or even longer to produce a urine sample whereas
Thomas was not even given the full two hours. See infra.
Furthermore, while according to Kamtek HR manager Meador “it
was Kamtek’s policy to allow employees two hours to produce a
sample” (Doc. 22-1 at 5), there is conflicting testimony that
Kamtek bent the rules for McBride and Embry while inflexibly
applying it to Thomas.

First, Hendon testified that when she

administered the drug test to McBride, Kamtek’s HR manager Meador
told her that she “needed to go by the DOT guidelines with the drug
screening [which were] . . . three hours.” (Doc 22-4 at 9).

When

Hendon called Crowder-Deed “about Department of Transportation
regulations per Charman's request . . . [Crowder-Deed] informed her
that we don't follow DOT regulations . . . [w]e follow the two-hour
rule.” (Doc. 27-3 at 78-80).

Hendon was not asking Crowder-Deed

11

whether it was two hours or three, but rather the oddity of “why
would Charman ask her to refer to Department of Transportation
three-hour rule as it relates to this Kamtek employee . . . why is
Charman referring to Department of Transportation urine collection
rules, regs, and policies?” (Doc. 27-3 at 79-80).

After verifying

that McBride was given three hours as documented in the “[s]hift
exchange

e-mail,”

Crowder-Deed

testified

that

she

asked

Mike

Echols, a PSI employee she reported to, to “verify with [Meador]
that the policy is two hours and not DOT regulations . . . for
three hours.” (Doc. 27-3 at 82-83).

Crowder-Deed testified that

subsequently Echols informed PSI employees in one of their meetings
“that we do not adhere to DOT regulations, and I don’t know what
[Meador] is talking about.” (Doc. 27-3 at 82-83).

Next, Crowder-

Deed testified that when administering Embry’s drug test, Embry
became upset, Meador became involved and reprimanded Crowder-Deed,
and then Embry was given “[t]wo and a half hours.” (Doc. 27-3 at
84).
the

After this situation, Crowder-Deed emailed Echols “[a]bout
fact

that

we’re

not

following

the

DOT

or

three-hour

accommodation as it relates to our drug policy,” to which Echols
responded, “[t]wo hours is our policy.” (Doc. 27-3 at 84-85).
Therefore, taking these statements as true for purposes of summary
judgment, the dissimilar treatment and the bending of the rules for
McBride and Embry suggests pretext by Kamtek.
Because there is more than enough evidence to establish a
prima facie case and to create a genuine issue of material fact as
12

to

whether

Kamtek’s

legitimate,

non-discriminatory

reason

is

pretextual, summary judgment on Count I in favor of Kamtek is
inappropriate .
Counts II, III, and IV
On May 12, 2015, the court ordered Thomas, in light of its
recent opinion in Savage v. Secure First Credit Union,

––––

F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8, 2015), to show
cause why it ought not dismiss his multiple simultaneous “but-for”
claims. (Doc. 16).

Rather than amend his complaint, Thomas took

the position that he was not required to elect only one theory
under “but for” causation and that “[p]laintiff can legally prevail
on each–or all–of her [sic] claims.” (Doc. 19 at 5).
Thomas does not respond to Kamtek’s motion as to Counts II,
III, and IV, and he effectively concedes that these counts are not
viable

by

narrowly

praying

that

Kamtek’s

motion

for

summary

judgment only be “denied with regard to his race case.” (Doc. 26 at
19).

Where a party fails “to properly address another party’s

assertion of fact as required by Rule 56(c), the court may . . .
grant

summary

judgment

if

the

motion

and

supporting

materials--including the facts considered undisputed--show that the
movant is entitled to it.” Fed. R. Civ. Proc. 56.
Despite Thomas’ allegation in Count II of discrimination on
the basis age, Thomas admitted in his deposition that he had no
basis for his ADEA claim. (Doc. 22-2 at 37).

Furthermore, since

Thomas alleges he was terminated based on his race in violation of
13

Title VII (Doc. 1 at 5-6; Doc 22-2 at 34-35; Doc. 26), age cannot
be the “but-for” cause of his termination. See Hendon v. Kamtek,
Inc., 2015 WL 4507990 (N.D. Ala. July 24, 2015) (Title VII and
ADEA).

Therefore Kamtek is entitled to summary judgment on Count

II.
Despite Thomas’ allegation in Count III of discrimination on
the basis of a disability, Thomas admitted in his deposition that
he had no basis for his ADA claim. (Doc. 22-2 at 37). Furthermore,
since Thomas alleges he was terminated based on race in violation
of Title VII (Doc. 1 at 5-6; Doc 22-2 at 34-35; Doc. 26), a
disability cannot be the “but-for” cause of his termination. See
Savage, 2015 WL 2169135 (retaliation, ADEA, and ADA).

Therefore

Kamtek is entitled to summary judgment on Count III.
Finally, despite Thomas’ allegation in Count IV that Kamtek
retaliated against him in violation of Title VII for reporting
discrimination, Thomas admitted in his deposition that he had no
basis for his retaliation claim. (Doc. 22-2 at 37).

Furthermore,

since Thomas alleges he was terminated based on race in violation
of

Title

VII

(Doc.

1

at

5-6;

Doc

22-2

at

34-35;

Doc.

26),

retaliation cannot be the “but-for” cause of his termination. See
Donald v. UAB Hosp. Mgmt., LLC, 2015 WL 3952307 (N.D. Ala. June 29,
2015) (quote omitted). Therefore, Kamtek is entitled to summary
judgment on Count IV.
In contrast to Thomas’ response to the court’s May 12, 2015

14

show cause order, his pleading was deficient as to “all claims
except that in Count One.” (Doc. 16).

The disposition of this case

on a Rule 56 motion for summary judgment rather than a Rule
12(b)(6) motion to dismiss illustrates the importance of requiring
plaintiffs

to

elect

between

multiple

“but-for”

employment

discrimination claims at the motion to dismiss stage of litigation.
See e.g. Culver v. Birmingham Bd. of Educ., 646 F.Supp.2d 1270
(N.D. Ala. 2009).
The necessity of resolving multiple “but-for” claims at the
motion to dismiss stage is rooted in the pleading standard of Rule
8(a) itself, which requires "a short and plain statement of the
claim showing that the pleader is entitled to relief." Fed. R. Civ.
Proc. 8(a)(2).

In the bygone era of the “no set of facts” approach

in Conley v. Gibson, 355 U.S. 41, 45 (1957), “a complaint in an
employment discrimination lawsuit [need] not contain specific facts
establishing a prima facie case of discrimination.” Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 508 (2002).

Yet, since Twombly and

Iqbal, a complaint must contain more; it must contain sufficient
factual matter, accepted as true, to “state a claim to relief that
is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. V. Twombly, 550 U.S. 544, 570
(2007)) (emphasis added). Pleading facts “'merely consistent with'
a defendant's liability . . . stops short of the line between
possibility and plausibility of 'entitlement to relief.'" Id.

15

(quoting Twombly at 557).
When pleading "but-for" causation consistent with Univ. of
Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) and Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167 (2009), multiple "but-for"
claims may be conceivable but they are not plausible on their face.
Twombly, 550 U.S. at 570 (“[b]ecause the plaintiffs here have not
nudged their claims across the line from conceivable to plausible,
their

complaint

must

be

dismissed”).

“A

claim

has

facial

plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 663.

Quite plainly, under

Rule 8(a) a claim for employment discrimination requires pleading
facts

that

provide

plausible

“proof

that

the

[employer’s

discrimination] was the but-for cause of the challenged employment
action.” Nassar, 133 S. Ct. at 2528 (2013) (emphasis added).
Specifically in Iqbal, the general pleading of discriminatory
intent was conclusory and “respondent's complaint d[id] not contain
any factual allegation sufficient to plausibly suggest petitioners'
discriminatory state of mind.” Iqbal, 556 U.S. at 683.

Similarly,

in a “but-for” employment discrimination claim, mere conclusory
allegations are insufficient; the complaint must contain facts that
plausibly suggest the employer’s discriminatory state of mind
necessary for “but-for” causation. See Twombly, 550 U.S. at 557-58
(quotes omitted)(“we explained that something beyond the mere

16

possibility of loss causation must be alleged, lest a plaintiff
with a largely groundless claim be allowed to take up the time of
a number of other people, with the right to do so representing an
in terrorem increment of the settlement value”).
complaint

alleging

an

ADEA

violation

cannot

For example, a
contain

factual

allegations sufficient to plausibly suggest “that age is a motive
for the employer's adverse conduct and simultaneously claim that
there

was

any

other

proscribed

motive

involved.”

Culver

v.

Birmingham Bd. of Educ., 646 F. Supp. 2d 1270, 1271-72 (N.D. Ala.
2009).
This gatekeeper function of Rule 8(a) per Iqbal and Twombly
practically ensures that deficient claims are “exposed at the point
of minimum expenditure of time and money by the parties and the
court.” Twombly, 550 U.S. at 557-58 (quoting 5 Wright & Miller §
1216, at 233–234).

While “Rule 8 marks a notable and generous

departure from the hyper-technical, code-pleading regime of a prior
era, [] it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.” Iqbal, 556 U.S. at
678-79 (2009).
Rather than waiting until summary judgment whence discovery
has been already fully conducted, Rule 8(a) stands as an efficient
and practical gatekeeper at the motion to dismiss stage.

As the

Supreme Court explained in Twombly:
It is no answer to say that a claim just shy of a plausible
entitlement to relief can, if groundless, be weeded out early
17

in the discovery process through careful case management . .
. given the common lament that the success of judicial
supervision in checking discovery abuse has been on the modest
side. See, e.g., Easterbrook, Discovery as Abuse, 69
B.U.L.REV. 635, 638 (1989) ("Judges can do little about
impositional discovery when parties control the legal claims
to be presented and conduct the discovery themselves"). And it
is self-evident that the problem of discovery abuse cannot be
solved by careful scrutiny of evidence at the summary judgment
stage, much less lucid instructions to juries; the threat of
discovery expense will push cost-conscious defendants to
settle even anemic cases before reaching those proceedings.
Probably, then, it is only by taking care to require
allegations that reach the level suggesting conspiracy that we
can hope to avoid the potentially enormous expense of
discovery in cases with no reasonably founded hope that the
discovery process will reveal relevant evidence to support a
§ 1 claim.
Twombly, 550 U.S. at 559-60 (quotes omitted).
where

Rule

8(a)

insulated

high-ranking

Just as in Iqbal

government

officials

responding to national security emergencies from “the burdens of
discovery on the basis of a [nonspecific] complaint” Iqbal, 556
U.S. at 670, so too in employment discrimination cases does Rule
8(a) insulate employers from the burdens of discovery where “butfor” causation is lacking. See

Alvarez v. Royal Atl. Developers,

Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (“[w]e do not sit as a
“super-personnel

department,”

and

it

is

not

our

role

to

second-guess the wisdom of an employer's business decisions—indeed
the wisdom of them is irrelevant—as long as those decisions were
not made with a discriminatory motive”).
Finally, while a party may plead alternative or inconsistent
claims or defenses under the federal rules, Fed. R. Civ. Proc.
8(d), alternative pleading does not relieve a plaintiff of its
18

obligation under Rule 8(a) to state “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 547.
Contrary
“factual

to

alternative

assertions

in

or

inconsistent

pleadings

are

claims

or

judicial

defenses,
admissions

conclusively binding on the party that made them.” Davis v. A.G.
Edwards & Sons, Inc., 823 F.2d 105, 108 (5th Cir. 1987) (quotes
omitted). In the employment discrimination context, pleading facts
sufficient for plausible “but-for” causation is incompatible with
the facts necessary for other alternative theories requiring “butfor” causation. See Brian S. Clarke, Grossly Restricted Pleading:
Twombly/iqbal,

Gross,

and

Cannibalistic

Facts

in

Compound

Employment Discrimination Claims, 2010 UTAH L. REV. 1101, 1141
(2010).

In an analogous situation, the Supreme Court rejected

using Rule 8 alternative pleading to allow inconsistent facts
stating that “an ADA plaintiff cannot simply ignore the apparent
contradiction that arises out of the earlier [Social Security
Disability Insurance] total disability claim [but] [r]ather, she
must proffer a sufficient explanation.” Cleveland v. Policy Mgmt.
Sys.

Corp.,

526

U.S.

795,

806

(1999)

(emphasis

added).4

Alternative pleading does not permit a plaintiff to make factual

4

Specifically, a Social Security Disability Insurance claim
requires a plaintiff assert “total disability” whereas an ADA
claim requires the essential element that a plaintiff “is a
qualified individual with a disability . . . who, with or without
reasonable accommodation, can perform the essential functions of
her job.” Cleveland, 526 U.S. at 806.
19

contradictions that conflict with legal conclusions on essential
elements

of

explanation

the
of

claim;

any

instead

apparent

a

“court

inconsistency

should
with

require

the

an

necessary

elements of [the] claim.” Cleveland, 526 U.S. at 807.
If plaintiffs like Thomas were allowed to continue inclusion
of claims similar to Counts II, III, and IV in their complaint, it
would unlock the doors of discovery on these claims armed with
nothing more than irreconcilable conclusions.

Resolving these

irreconcilable claims on summary judgment, rather than a motion to
dismiss, wastes the time and money of the parties and the court.
A review of the discovery materials attached to the parties’
summary judgment briefing demonstrates the futility of allowing
multiple “but-for” employment discrimination claims beyond the
motion to dismiss stage. (Doc. 22-1; Doc. 22-2; Doc. 22-4; Doc. 271; Doc. 27-2; Doc. 27-3).

Additionally, Thomas fails to explain

how alternative pleading alleviates the factual inconsistencies of
his complaint.5 “[A] district court must retain the power to insist
upon some specificity in pleading before allowing a potentially
massive factual controversy to proceed.” Twombly, 550 U.S. at 558
(quoting Associated Gen. Contractors of Cal., Inc. v. Carpenters,
459 U.S. 519, 528, n. 17 (1983)).

5

Similar to the approach in Cleveland v. Policy Mgmt. Sys.
Corp., 526 U.S. 795 (1999), this court entered a show cause order
on May 12, 2015 (Doc. 16) ordering Thomas to explain why it
should not dismiss his multiple “but-for” claims.
20

CONCLUSION
For the reasons stated above, this court by separate order
will deny Kamtek’s motion for summary judgment on Count I and
grant the motion on Counts II, III, and IV.

DONE this 28th day of October, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

21