Hendon v. Kamtek Inc et al

Filing 22

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 7/24/15. (SAC )

FILED
2015 Jul-24 PM 03:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHANNON HENDON,

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Plaintiff,
v.
KAMTEK, Inc., et al.,
Defendants.

CIVIL ACTION NO.
2:14-cv-2255-WMA

MEMORANDUM OPINION
Before the court is the joint motion of defendant Kamtek, Inc.
(“Kamtek”) for summary judgment under Fed. R. Civ. P. 56 and for
dismissal under Fed. R. Civ. P. 12(b)(6) (Doc. 11). For the reasons
explained below, the motion to dismiss will be granted, mooting the
motion for summary judgment.
BACKGROUND1
Plaintiff Shannon Hendon is an African-American female over
the age of 40. (Doc. 1 at 3, ¶ 9). She was employed by defendant
Personnel Staffing, Inc. (“PSI”) from April 2013 to December 2013.
(Docs. 1 at 3-4, ¶¶ 9 & 13, 11 at 4, ¶ 7). PSI provides temporary
personnel, known as PSI Associates, to Kamtek. (Docs. 1 at 3, ¶ 9,
11 at 3, ¶ 2). PSI also provides Kamtek with on-site management

1

Because of the dual nature of Kamtek’s motion, the facts
are taken both from Hendon’s complaint and from Kamtek’s motion
for summary judgment. To the extent factual inferences are drawn,
they are drawn in favor of Hendon. See M.T.V. v. DeKalb Cty. Sch.
Dist., 446 F.3d 1153, 1156 (11th Cir. 2006); Earl v. Mervyns,
Inc., 207 F.3d 1361, 1365 (11th Cir. 2000).
1

personnel, known as On-Site Supervisors or Human Resource Managers,
who are responsible for coordinating the operations of PSI’s
associates and administering drug screenings. (Docs. 1 at 3, ¶ 9,
11 at 4, ¶ 5). Hendon was an On-Site Supervisor. (Docs. 1 at 3, ¶
9, 11 at 4, ¶ 6).
As an On-Site Supervisor, Hendon worked on Kamtek’s premises,
but her office was located in a trailer designated specifically for
PSI use. (Doc. 11 at 4-5, ¶ 10). Although there was obviously
interaction with Kamtek employees, Hendon was not supervised by any
Kamtek employees. (Doc. 11 at 5, ¶ 12). Her personnel file was
maintained only by PSI, and PSI was entirely responsible for her
compensation. (Doc. 11 at 5-6, ¶¶ 14, 16).
In September 2013, Hendon was contacted by Arthur Thomas, an
African-American Kamtek employee. (Doc. 1 at 4, ¶ 10). Thomas
complained to Hendon that he had been discriminated against when
taking a drug test. Id. Whether he was complaining against PSI, or
against Kamtek, or against both, is unclear. According to Thomas,
he was only given 45 minutes to produce a urine sample but could
not do so, while white employees had been given up to two hours to
produce a sample. (Doc. 1 at 4, ¶¶ 10-11). Thomas was terminated by
Kamtek and was orally given his failure to provide a urine sample
as the reason for his termination. At his termination hearing, he
mentioned that Hendon had knowledge of white employees who were not
terminated after having failed a drug test or after being unable to

2

produce a timely urine sample. (Doc. 1 at 4, ¶ 12).
On December 5, 2013, PSI fired Hendon. (Docs. 11 at 6, ¶ 20,
19-2 at 2). The reason given on the written termination notice was:
“Client requested restructure of on-site personnel.” (Doc. 19-2 at
2). Kamtek is unquestionably the client to which this notice
referred.

Hendon

was

thereafter

replaced

by

a

younger

male

employee. (Doc. 1 at 5, ¶ 15). Kamtek contends that it was not
involved in PSI’s decision to terminate Hendon and was not even
aware of the decision until after the termination had taken place.
(Doc. 11 at 6-7, ¶¶ 21-23). Kamtek also had nothing to do with
PSI’s choice of a replacement for Hendon.
On December 11, 2013, Hendon filed a charge of discrimination
with the EEOC against Kamtek and PSI. (Doc. 1-1 at 6). She received
right-to-sue letters on August 22 and 26, 2014. (Doc. 1-1 at 2, 4).
She filed this lawsuit on November 20, 2014. In her complaint, she
alleges that she was discriminated against based on her race (in
violation of Title VII and 42 U.S.C. § 1981), on her sex (in
violation of Title VII), and on her age (in violation of the ADEA).
PSI

and

Kamtek

filed

motions

in

response

to

Hendon’s

complaint. PSI moved to compel arbitration. The court granted its
said motion on March 2, 2015, and the above entitled action as to
PSI is currently stayed pending arbitration. (Doc. 14). Kamtek
moved for summary judgment under Fed. R. Civ. P. 56, or, in the
alternative, for a dismissal under Fed. R. Civ. P. 12(b)(6). In its

3

summary judgment motion, Kamtek contends, inter alia, that it
cannot

be

liable

because

it

was

not

Hendon’s

employer.

The

employment discrimination statutes relied upon by Hendon do not
give this court jurisdiction over the conduct of non-employers. In
its motion to dismiss, Kamtek also argues that Hendon’s complaint
does not allege facts to show that Kamtek discriminated against her
based on her race, or based on her sex, or based on her age, and
that her complaint fails to state a viable claim based on her
association with Arthur Thomas. She does not even attempt to mount
a claim of retaliation.
On May 12, 2015, the court ordered Hendon to show cause why
her ADEA claim should not be dismissed for her failure to allege
that her age was the “but-for” cause of her termination, as is
required by Gross v. FBL Financial Services, Inc., 557 U.S. 167
(2009). (Doc. 18). Hendon has responded to Kamtek’s motion and to
the court’s show cause order.
DISCUSSION
Because Kamtek’s motion for summary judgment, inter alia, is
a challenge to this court’s subject-matter jurisdiction, the court
will address that motion first. See OFS Fitel, LLC v. Epstein,
Becker and Green, P.C., 549 F.3d 1344, 1352-53 (11th Cir. 2008).
A. Motion for Summary Judgment
Summary judgment is appropriate only when “there is no genuine
dispute as to any material fact and the movant is entitled to
4

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must
“examine the evidence in the light most favorable to the non-moving
party,” drawing all inferences in favor of that party. Earl v.
Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). “[A] ‘judge’s
function’ at summary judgment is not ‘to weigh the evidence and
determine the truth of the matter but to determine whether there is
a genuine issue for trial.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam) (quoting Anderson v Liberty Lobby, Inc., 477
U.S. 242, 249 (1986)).
Kamtek claims that because it was not Hendon’s employer it
cannot be held liable under any of Hendon’s theories. A defendant
must be an employer to be liable under Title VII, § 1981, or the
ADEA. See Virgo v. Riviera Beach Assocs., Ltd., 39 F.3d 1350, 1359
(11th Cir. 1994); Fountain v. Metcalf, Zima & Co., P.A., 925 F.2d
1398 (11th Cir. 1991); see also 29 U.S.C. § 630(f); 42 U.S.C. §
2000e(f).

In

other

words,

the

court

lacks

subject-matter

jurisdiction over a non-employer defendant under the statutes being
invoked by Hendon. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d
1236, 1242 (11th Cir. 1998).
The

Eleventh

Circuit

“interpret[s]

the

term

‘employer’

liberally.” Virgo, 39 F.3d at 1359. Hendon contends that, while
Kamtek was not her direct employer, sufficient evidence exists to
demonstrate

that

Kamtek

was

joint-employer

a

with

PSI,

thus

precluding summary judgment. If “one employer while contracting in
5

good faith with an otherwise independent company, has retained for
itself sufficient control of the terms and conditions of employment
of the employees who are employed by the other employer,” that
defendant may be liable as a joint-employer. Id. at 1360 (quoting
Nat’l Labor Relations Bd. v. Browning-Ferris Indus., 691 F.2d 1117,
1123 (3d Cir. 1982)). The most important consideration is “the
degree of

control

an

entity

has

over

the

adverse

employment

decision.” Llampallas, 163 F.3d at 1244-45.
Kamtek presents very substantial evidence in support of its
contention that it was not Hendon’s joint-employer. PSI, not
Kamtek,

was

solely

responsible

for

supervising

Hendon,

for

maintaining her personnel file, and for paying her salary and
benefits. Kamtek also claims that it had no involvement in the
decision to terminate Hendon and was only made aware of the
decision after-the-fact. This assertion, however, runs into the
words of the termination notice delivered to Hendon by her admitted
employer,

PSI.

The

notice

says:

“Client

[Kamtek]

requested

restructure of on-site personnel.” (Doc. 19-2 at 2). These words
could have several meanings. Kamtek itself refers to the notice as
“nebulous.” (Doc. 21 at 8). Possible meanings can support Kamtek’s
position that it was not involved in the termination decision, but,
importantly, the statement could be construed as “corporate-speak”
for Kamtek’s instructing or pressuring PSI to fire Hendon.
Kamtek argues that the court should not read the termination

6

notice in the way suggested by Hendon, and instead should look to
a Kamtek employee’s affidavit to ascertain the meaning of the
ambiguous notice. But such is not the standard to be applied at
summary judgment. The court is required to “examine the evidence in
the light most favorable to the non-moving party.” Earl, 207 F.3d
at 1365. When evaluated under this strict standard, the termination
notice lends support to Hendon’s position that Kamtek exercised
control

over

the

terms

and

conditions

of

her

employment,

particularly over her termination. The court, therefore, cannot
find at the summary judgment stage that Kamtek was not Hendon’s
joint-employer, an entity over which this court has jurisdiction.
Accordingly, at this stage the court will exercise jurisdiction
over the action against Kamtek as Hendon’s joint-employer.
B. Motion to Dismiss
When reviewing a motion to dismiss under Fed. R. Civ. P.
12(b)(6),

the

court

must

“‘accep[t]

the

allegations

in

the

complaint as true and constru[e] them in the light most favorable
to the plaintiff.’” M.T.V. v. DeKalb Cty. Sch. Dist., 446 F.3d
1153, 1156 (11th Cir. 2006) (quoting Hill v. White, 321 F.3d 1334,
1335 (11th Cir. 2003)). A complaint must, however, “state a claim
to relief that is plausible on its face” if it is to survive such
a motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
Supreme Court has identified two working principles for district
courts to follow in ruling on motions to dismiss. “First, the tenet

7

that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “Second, only a complaint that states a plausible
claim

for

(emphasis

relief
added).

survives
“A

claim

a

motion
has

to

facial

dismiss.”

Id.

plausibility

at

679

when

the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

the

misconduct alleged.” Id. at 678. “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id.
Hendon’s complaint begins with a general statement of facts,
followed by three specific counts. Each count, however, contains
only an incorporation of the prefatory statement of facts, after
which Hendon uses entirely conclusory language upon which she seeks
relief. Under Twombly and Iqbal, the court is required to disregard
this

conclusory

language.

This

leaves

the

court

with

the

unenviable, if not impossible, task of discerning on its own
exactly how Hendon’s alleged facts provide plausibility for each of
her three causes of action. The mere fact that an employee is
African-American does not open the courthouse door for a Title VII
race claim. The mere facts that a person is female and was replaced
by a male do not open the door to a Title VII sex claim. The mere
8

facts that a person was over 40 and was replaced by a younger
person do not open the door to an ADEA claim.
The court agrees with Kamtek that Hendon’s allegations do not
support

her

claims

of

race,

sex,

and/or

age

discrimination.

Instead, Hendon’s complaint tells a story of how she was allegedly
retaliated against for her association with Arthur Thomas during
his disciplinary proceedings and termination. She does not allege
facts to demonstrate a plausible claim of how she was discriminated
against because of her race, her sex, or her age. Hendon would have
this court proceed on a too hopeful inferential “fact”: “Because
Thomas and Hendon are African-American, one could infer that Kamtek
ordered the termination of Hendon in fear that she would lend
support to Thomas . . . who was claiming, inter alia, race
discrimination in employment.” (Doc. 19 at 8). Hendon offers no
argument but this, and it is not enough.
While the court is required to draw all plausible inferences
in favor of the non-movant, it is not permitted to save a complaint
by writing entirely new factual allegations into it and drawing
favorable inferences from the judicially divined allegations. If
Hendon had wished the court to make such a tenuous connection in
order to detect race discrimination, she should have alleged that
such a connection existed as a fact and not merely suggested the
possibility in her response to the motion to dismiss using the
words “one could infer.” See Bruhl v. Price Waterhousecoopers

9

Int’l, No. 03-23044-Civ-MARRA, 2007 WL 997362, at *4 (S.D. Fla.
Mar. 27, 2007) (“The Plaintiffs cannot supplant the allegations of
the [complaint] with new arguments set forth in their response to
a motion to dismiss.”). Accordingly, Hendon’s race claim fails,
just as her sex and age claims fail.
Hendon’s invocation of Thompson v. North American Stainless,
LP, 562 U.S. 170 (2011), is unavailing. That case dealt only with
a

retaliation

claim.

Hendon’s

complaint

does

not

contain

a

retaliation claim, and such a claim was not included in her EEOC
charge.
C. Order to Show Cause
The court would be remiss if it did not address a separate
dispositive

deficiency

that

overlappingly

eliminates

the

ADEA

aspect of Hendon’s complaint. She alleges that she was fired for
three separate reasons: her race, her sex, and her age. But, in
Gross, the Supreme Court held that, to prevail on a claim of age
discrimination under the ADEA, “a plaintiff must prove that age was
the ‘but-for’ cause of the employer’s adverse decision.” 557 U.S.
at 176. “Thus, the ordinary meaning of the ADEA’s requirement that
an employer took adverse action ‘because of’ age is that age was
the ‘reason’ that the employer decided to act.” Id. (emphasis
added). This court has consistently found this requirement to mean
that “an employee cannot claim that age is a motive for the
employer’s adverse conduct and simultaneously claim that there was
10

any other proscribed motive involved.” Culver v. Birmingham Bd. of
Educ., 646 F. Supp. 2d 1270, 1271-72 (N.D. Ala. 2009) (emphasis
added); see also Donald v. UAB Hosp. Mgmt., Inc., No. 2:14-cv-727WMA,

2015

WL

3952307

(N.D.

Ala.

June

29,

2015)

(Title

VII

retaliation); Holley v. Gibco Constr., LLC, No. 2:14-cv-2277-WMA,
2015 WL 2365580 (N.D. Ala. May 18, 2015) (same); Savage v. Secure
First Credit Union, No. 2:14-cv-2468-WMA, 2015 WL 2169135 (N.D.
Ala. May 8, 2015) (retaliation, ADEA, and ADA); Montgomery v. Bd.
of Trs. of the Univ. of Ala., No. 2:12-cv-2148-WMA, 2015 WL
1893471, at *5 (N.D. Ala. Apr. 27, 2015) (retaliation); Dixon v.
Birmingham, Ala., No. 2:13-cv-404-WMA, 2015 WL 353162, at *1 (N.D.
Ala. Jan. 27, 2015) (ADA); Ephraim v. Pantry, Inc., 899 F. Supp. 2d
1205, 1207-08 (N.D. Ala. 2012) (ADEA); Gwin v. BFI Waste Servs.,
LLC, 718 F. Supp. 2d 1326, 1327 (N.D. Ala. 2010) (ADEA). This court
sees no reason to back away from what it has repeatedly said in
this line of cases. It shared its “up front” position with Hendon,
but Hendon has failed and refused to tailor her complaint to meet
Gross.
The court is fully aware that other courts have refused to
apply Gross and its progeny the way this court applies them. The
cases cited by Hendon reveal three basic arguments for skirting
Gross and Nassar.
1.

“But-for” causation is “sole” causation.

First, Hendon argues, and some courts have held, that “‘but11

for’ causation does not require proof that retaliation was the only
cause of the employer’s action, but only that the adverse action
would not have occurred in the absence of the retaliatory motive.”
Zann Kwan v. Andalex Group, LLC, 737 F.3d 834, 846 (2d Cir. 2013).
This court, however, finds that the contrary conclusion is the
natural and, indeed, the only logical conclusion to be drawn from
the Supreme Court’s language in Gross, in University of Texas
Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), and
in Burrage v. United States, 134 S. Ct. 881 (2014).2
As the Supreme Court said in Gross, in order to qualify as the
“but-for” cause, the alleged cause must be “the ‘reason’ that the
employer decided to act.” 557 U.S. at 176 (emphasis added). To
impose a lesser “but-for” standard would require an entirely
incorrect reading of Gross, Nassar, and Burrage. In discussing the
but-for standard in Burrage, the Supreme Court gave the following
examples:
Thus, “where A shoots B, who is hit and dies, we can say
that A [actually] caused B's death, since but for A's
conduct B would not have died.” LaFave 467–468 (italics
omitted). The same conclusion follows if the predicate

2

The court is by no means alone in this finding. See, e.g.,
Conner v. Ass’n of Flight Attendants-CWA, No. 13-2464, 2014 WL
6973298, at *5 (E.D. Penn. Dec. 10, 2014); Ramos v. Molina
Healthcare, Inc., 963 F. Supp. 2d 511, 531 (E.D. Va. 2013);
Austin v. Wal-Mart Stores, Inc., No. 1:10-CV-3556-TWT, 2012 WL
6194233, at *3 (N.D. Ga. Dec. 11, 2012); Foust v. Metro. Sec.
Servs., Inc., 829 F. Supp. 2d 614, 622-23 (E.D. Tenn. 2011);
Whitaker v. Tenn. Valley Auth. Bd. of Dirs., No. 3:08-1225, 2010
WL 1493899, at *9 (M.D. Tenn. Apr. 14, 2010).
12

act combines with other factors to produce the result, so
long as the other factors alone would not have done
so—if, so to speak, it was the straw that broke the
camel's back. Thus, if poison is administered to a man
debilitated by multiple diseases, it is a but-for cause
of his death even if those diseases played a part in his
demise, so long as, without the incremental effect of the
poison, he would have lived. See, e.g., State v. Frazier,
339 Mo. 966, 974–975, 98 S.W.2d 707, 712–713 (1936).
This but-for requirement is part of the common
understanding of cause. Consider a baseball game in which
the visiting team's leadoff batter hits a home run in the
top of the first inning. If the visiting team goes on to
win by a score of 1 to 0, every person competent in the
English language and familiar with the American pastime
would agree that the victory resulted from the home run.
This is so because it is natural to say that one event is
the outcome or consequence of another when the former
would not have occurred but for the latter. It is beside
the point that the victory also resulted from a host of
other necessary causes, such as skillful pitching, the
coach's decision to put the leadoff batter in the lineup,
and the league's decision to schedule the game. By
contrast, it makes little sense to say that an event
resulted from or was the outcome of some earlier action
if the action merely played a nonessential contributing
role in producing the event. If the visiting team wound
up winning 5 to 2 rather than 1 to 0, one would be
surprised to read in the sports page that the victory
resulted from the leadoff batter's early, non-dispositive
home run.
134

S.

Ct.

at

888.

In

each

of

these

situations,

the

Court

demonstrated that there was only one “but-for” cause. Take, for
example, the proverbial straw that broke the camel’s back. The last
straw only broke the camel’s back because it added its slight
weight to the weight of all the preceding straws. Thus, under a
loose interpretation of “but-for,” each and all of the straws could
be considered but-for causes, since without each and all of them
the camel’s back would not have been broken. But the Court pointed
13

to the last straw as the sole or but-for cause. The same is true in
the Court’s baseball example. The Court explicitly recognized that
because of “skillful pitching, the coach's decision to put the
leadoff batter in the lineup, and the league's decision to schedule
the game,” etc., the home team won the game. But the Court was not
distracted by these other contributing causes such as the “big
bang.” Instead, it determined that the home run was the only and
the but-for cause of victory.
The Court further clarified the issue when in Burrage it
rejected the Government’s formulation of causation that “would
treat as a cause-in-fact every act or omission that makes a
positive incremental contribution, however small, to a particular
result.” Id. at 891. While some courts have continued to label
their post-Gross, Nassar, and Burrage causation standard as “butfor,” in reality they are requiring nothing more than a “positive
incremental contribution,” since without each contribution, who can
say that the result being examined would have been reached. This is
no more than what was required by the now-rejected “motivating
factor” standard. A standard that the Supreme Court has explicitly
rejected can no longer be employed. This court can well understand
why ADEA and retaliation plaintiffs do not like Gross and Nassar,
but their criticism of these decisions cannot wish them away. If
the Supreme Court has misread the language chosen by Congress,
Congress can act to make its intent clear.
14

Dissenting and concurring opinions in these cases confirm this
court’s understanding that “sole” and “but-for” causation are
synonymous. In Burrage, Justices Ginsburg and Sotomayor declined to
join the majority precisely because they “do not read ‘because of’
in the context of antidiscrimination laws to mean ‘solely because
of.’” Id. at 892 (Ginsburg, J., concurring in the judgment). See
also Gross, 557 U.S. at 183 n.4; Nassar, 133 S. Ct. at 2546-47.
Justices

Ginsburg

and

Sotomayor

understood

that

the

majority

opinions that they refused to join equated “sole” and “but-for.”
They wouldn’t follow the majority because they read the majority
opinions exactly like this court reads them.
The same conclusion follows from the Supreme Court’s dealing
with situations in which multiple proscribed acts are alleged, each
of which is independently sufficient to produce the complained of
result. Importantly, there are two things that the Supreme Court
did in these seminal cases. First, instead of trying to resolve the
question of

causal

sufficiency

in

all

cases

under

the

Gross

umbrella, the Court referred to some instances as “rare” and as
“exceptions” and refused either to “accept or reject the special
rule developed for these cases.” Nassar, 133 S. Ct. at 2525;
Burrage, 134 S. Ct. at 890. Second, the Court explicitly found that
concurrent causes do not qualify as but-for causes. Burrage, 134 S.
Ct. at 890.
Some courts have relied on a footnote in McDonald v. Santa Fe
15

Transportation Co., 427 U.S. 273 (1976), for the proposition that
but-for causation does not equate to sole causation. See, e.g.,
Howell v. Morrison Mgmt. Specialists, Inc., No. 4:10-cv-1587-RDP,
2013 WL 6568935, at *6 (N.D. Ala. Dec. 13, 2013). The McDonald
footnote says:
The use of the term “pretext” in this context does not
mean, of course, that the Title VII plaintiff must show
that he would have in any event been rejected or
discharged solely on the basis of his race, without
regard to the alleged deficiencies; as the closing
sentence to the quoted passage makes clear, no more is
required to be shown than that race was a “but for”
cause.
Id. at 282 n.10. This footnote of 39 years ago was discussed and
distinguished by the plurality in Price Waterhouse v. Hopkins, 490
U.S. 228, 240 n.6 (1989), in the context of the Supreme Court’s
conclusion in that case that the phrase “because of” does not
require but-for causation. In arriving at its said conclusion, the
Price Waterhouse plurality actually equated “sole” causation with
“but-for” causation, thus contradicting the McDonald footnote. Id.
at 241; see also id. at 284 (Kennedy, J., dissenting). Following
Price Waterhouse, the Court’s view of the interplay between sole
and but-for causation was murky, that is, until Gross, Nassar, and
Burrage came along. Luckily, more clarification of the question
came from Congress’s passage of the Civil Rights Act of 1991, which
effectively abrogated Price Waterhouse. See Nassar, 133 S. Ct. at
2526. Given the intervening unequivocal change in the law, this

16

court certainly cannot give controlling weight to the McDonald
footnote.
Finally, Hendon points to McNely v. Ocala Star-Banner Corp.,
99 F.3d 1068 (11th Cir. 1996), for the proposition that but-for
causation does not require sole causation. This court held in
Savage that McNely has been “undermined to the point of abrogation
by the Supreme Court.” 2015 WL 2169135, at *4 (quoting SantiagoLugo v. Warden, — F.3d —, 2015 WL 1936707, at *3 (11th Cir. Apr.
30, 2015)). The court reiterates its Savage holding today. In
McNely, the court held that the ADA’s but-for causation requirement
was “not to mean ‘solely because of’ . . . [but rather] liability
whenever the prohibited motivation makes the difference in the
employer’s decision.” Id. at 1076. The Eleventh Circuit later
elaborated, finding that “McNely’s ‘but-for’ liability standard is
perfectly consonant with the ‘motivating factor’ language of the
[challenged jury] instruction.” Farley v. Nationwide Mut. Ins. Co.,
197 F.3d 1322, 1334 (11th Cir. 1999). Under Gross, Nassar, and
Burrage, however, this standard did not survive. In Nassar, the
Supreme Court reversed the Fifth Circuit precisely because it had
applied the then-traditional motivating factor standard to a Title
VII retaliation claim. Because the Eleventh Circuit in McNely
equated the concept of “but-for” with the now-rejected “motivating
factor” standard, McNely is no longer the law of the Eleventh
Circuit.
17

2.

The plaintiff cannot escape her burden by claiming her
right to plead alternatively.

Hendon argues, and some courts have held, that regardless of
whether but-for causation is synonymous with sole causation, a
plaintiff need not elect between claims at the motion stage because
she can plead alternatively. See, e.g., Pearson v. Lawrence Med.
Ctr., No. 5:12-cv-1064-CLS, 2012 WL 5265774, at *5-*7 (N.D. Ala.
Oct. 24, 2012). It is true that “[a] party may state as many
separate claims or defenses as it has, regardless of consistency.”
Fed. R. Civ. P. 8(d)(3). But Rule 8(d) does not excuse a plaintiff
from pleading facts to support each of the alternative legal
theories she is pressing. Johns v. Blue Cross Blue Shield, No.
2:08-cv-12272, 2009 WL 646636, at *5 (E.D. Mich. Mar. 10, 2009).
As

this

distinction

court

said

between

the

in

Savage: “[T]here

pleading

of

is

alternative

a

recognized

theories

of

liability and irreconcilable contradictions and concessions as to
an essential element of a particular claim.” 2015 WL 2169135, at
*5. Particularly, in light of Twombly and Iqbal, in order to
satisfy but-for causation, a plaintiff must allege as fact that
“there are no proscribed motivations other than [the one alleged].”
Montgomery, 2015 WL 1893471, at *5. By alleging as fact the
existence of a separate proscribed contributing motivation, Hendon
concedes that age was not the but-for reason for her termination.
Despite Rule 8(d), this failure to allege the but-for fact mandates

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dismissal. See Whitaker, 2010 WL 1493899, at *9 (“Post-Gross, it is
incongruous to posit such alternate theories because the very
presentation of different reasons for an action suggest [sic] that
age was not the sole reason for the action.”); see also Selby v.
Goodman Mfg. Co., LP, 2014 WL 2740317, at *6 (N.D. Ala. June 17,
2014) (Proctor, J.), and Selman v. CitiMortgage, Inc., 2013 WL
838193, at *13 n.19 (S.D. Ala. Mar. 5, 2013) (Steele, J.). Both
cases distinguish between permissible pleading in the alternative
and impermissibly conceding the existence of a contract by suing
for its breach while simultaneously making an unjust enrichment
claim that cannot proceed where there is a contract.
3.

But-for causation applies from the outset.

Some courts have taken the position that the but-for causation
standard only applies at trial and is inapplicable to motions to
dismiss and/or for summary judgment. See, e.g., Woldetadik v. 7Eleven, Inc., 881 F. Supp. 2d 738, 741-42 (N.D. Tex. 2012).3 This
argument cannot be squared with Nassar. The Supreme Court in Nassar
made known its concern that “claims of retaliation are being made
with ever-increasing frequency.” 133 S. Ct. at 2531. The Court
applied but-for causation, in part, for the purpose of discouraging

3

The Fourth Circuit has made a separate but related argument
that Nassar is inapplicable to the McDonnell-Douglas framework.
See Foster v. Univ. of Md.-E. Shore, — F.3d —, 2015 WL 2405266
(4th Cir. May 21, 2015). This court addressed that contention in
Donald, 2015 WL 3952307, at *4-*5.
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the filing of frivolous claims “which would siphon resources from
efforts by employer, administrative agencies, and courts to combat
workplace discrimination.” Id. at 2531-32. The Court expressed its
belief that the absence of but-for causation exposes such claims to
dismissal at the pre-trial stage. Id. at 2532 (“Even if the
employer could escape judgment after trial, the lessened causation
standard would make it far more difficult to dismiss dubious claims
at the summary judgment stage.”). Because of the Supreme Court’s
requirement of a showing of but-for causation before trial, the
position that but-for causation does not apply until trial is
untenable.
Further, an assertion that but-for causation does not apply at
the pleading stage is contrary to the very purpose of pleading,
which is to put defendants on notice of the plaintiff’s claims and
to determine whether the allegations, if true, support a finding of
liability. If no liability would result, dismissal, even at the
earliest pleading stage, is the proper recourse. As this court said
in Donald: “There is nothing incongruous or illogical . . . in
requiring plaintiffs to meet the causation requirement either at
the outset . . . or not at all.” 2015 WL 3952307, at *4. Hendon’s
ADEA discrimination claim, to the extent it can be discerned from
her complaint, is so contrary to Gross that it cannot be allowed to
proceed. She cannot insist upon her age as a cause and at the same
time insist that her termination was the product of her race and/or

20

sex.
CONCLUSION
For the reasons stated above, Kamtek’s motion to dismiss will
be granted. This will moot Kamtek’s motion for summary judgment. A
separate order will be entered.+
DONE this 24th day of July, 2015.

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

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