Pearson v. Lawrence Medical Center

Filing 17

MEMORANDUM OPINION AND ORDER that the defendant's Motion to Dismiss is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/23/2012. (AHI)

FILED
2012 Oct-24 AM 08:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TERRY PEARSON,
Plaintiff,
vs.
LAWRENCE
CENTER,

MEDICAL

Defendant.

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Civil Action No. 5:12-cv-1064-CLS

MEMORANDUM OPINION AND ORDER
Plaintiff, Terry Pearson, alleges that defendant, Lawrence Medical Center,
terminated his employment on the basis of his age and disability, and in retaliation for
his act of requesting medical leave, in violation of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. 621 et seq. (“ADEA”); the Americans with
Disabilities Act on 1990, 42 U.S.C. § 12111 et seq. (“ADA”); and the Family and
Medical Leave Act of 1993, 29 U.S.C. § 2611 et seq. (“FMLA”).1
Defendant argues that plaintiff “cannot, as a matter of law, simultaneously
allege that he was discriminated against because of his age and his disability or in
retaliation for allegedly engaging in protected activity under the FMLA.”2 This case
is before the court on Lawrence’s partial motion to dismiss “to require Plaintiff to

1

Doc. no. 1 (Complaint) ¶ 1.

2

Doc. no. 6 (Partial Motion to Dismiss), at 1.

amend his Complaint to eliminate either his ADEA claim or his ADA and FMLA
claims.”3 Upon consideration, this court will deny the motion.
I. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
complaint for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that
pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp.
v. Twombly, 544 U.S. 544, 550 (2007), it does demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that
is plausible on its face.” [Bell Atlantic Corp., 550 U.S.] at 570. A claim
has facial plausibility 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 556. 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. Ibid. Where a
complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id., at 557 (brackets omitted).
Iqbal, 556 U.S. at 678 (alteration supplied).
3

Id.
2

II. FACTS AS ALLEGED4
The plaintiff, Terry Pearson, is a fifty-nine-year-old man with diabetes and high
blood pressure who worked for Lawrence Medical Center (“Lawrence”) for nearly
eighteen years, until his termination on February 2, 2011.5 Plaintiff began working
for Lawrence in 1993 as a Dietary Manager.6 On the date of his termination, he was
the Director of Plant Operations, Housekeeping, and Dietary Services.7
In 2010, Lawrence hired Greg Moore, a forty-two-year-old man, as interim
CEO; and, within two months, promoted him to CEO.8 As a result, Moore became
plaintiff’s direct supervisor.9 In the early part of the following year, plaintiff needed
to visit his doctor more frequently because he was having difficulty regulating his
4

As always is the case in the context of ruling upon a motion to dismiss, the district court
is required to assume that
the facts set forth in the plaintiff’s complaint are true. See Anza [v. Ideal Steel
Supply Corp.], 547 U.S. 451, [453,] 126 S. Ct.[1991,] 1994 [(2006)] (stating that on
a motion to dismiss, the court must “accept as true the factual allegations in the
amended complaint”); Marsh v. Butler County, 268 F.3d 1014, 1023 (11th Cir. 2001)
(en banc) (setting forth the facts in the case by “[a]ccepting all well-pleaded factual
allegations (with reasonable inferences drawn favorably to Plaintiffs) in the
complaint as true”). Because we must accept the allegations of plaintiff’s complaint
as true, what we set out in this opinion as “the facts” for Rule 12(b)(6) purposes may
not be the actual facts.
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006) (alterations
supplied).
5

Doc. no. 1 (Complaint) ¶ 7.

6

Id. ¶ 8.

7

Id.

8

Id. ¶ 9.

9

Id.
3

insulin pump, and because he required a stress test to determine the efficacy of a stent
implanted in his heart.10 Accordingly, plaintiff asked Moore about taking intermittent
FMLA leave to attend his upcoming doctor’s appointments.11 Moore told plaintiff that
he (Moore) did not like the fact that plaintiff was missing work to attend doctor’s
appointments, and that plaintiff was taking too many days off work for those
appointments.12
After his conversation with Moore about taking intermittent FMLA leave,
plaintiff obtained the necessary FMLA paperwork, and submitted it to his physician
for completion.13 On or around January 27, 2011, Moore told plaintiff that he needed
somebody twenty years younger than plaintiff to perform the duties of plaintiff’s job.14
That same day, Moore placed plaintiff on a ninety-day Performance Improvement
Plan (“PIP”), allegedly for failing to fulfill certain new paperwork requirements.15
Plaintiff subsequently followed those requirements.16 Even so, and instead of
giving him three months in accordance with the terms of his PIP, Moore fired plaintiff
10

Id. ¶ 10.

11

Doc. no. 1 (Complaint) ¶ 11. Without taking intermittent FMLA leave, plaintiff was
required to take two days of Earned Time Off (“ETO”) before taking sick leave. By going onto
intermittent FMLA leave, he would have been able to avoid taking ETO before taking sick leave.
Id.
12
Id. ¶ 12.
13

Id. ¶ 13.

14

Id. ¶ 14.

15

Id. ¶ 15.

16

Id. ¶ 16.
4

within one week, on February 2, 2011.17 During their final meeting on February 2,
Moore told plaintiff that he (Moore) had decided to change all three areas of plaintiff’s
responsibilities (i.e., Plant Operations, Housekeeping, and Dietary Services), but did
not otherwise explain the termination decision.18
III. DISCUSSION
Lawrence’s partial motion to dismiss only presents one issue: i.e., can plaintiff
simultaneously allege: that Lawrence discriminated against him on the basis of his
age; that Lawrence discriminated against him on the basis of his disability; and that
Lawrence retaliated against him for requesting leave under the FMLA?
A.

Simultaneous Claims Under the ADEA and Other Anti-Discrimination
Statutes
As the Eleventh Circuit observed in Mora v. Jackson Memorial Foundation,

Inc., 597 F.3d 1201 (11th Cir. 2010),
the Supreme Court [has] ruled out the idea of a “mixed motive” ADEA
claim, instead requiring plaintiffs to show that age was the “but for”
cause of an employment action. [Gross v. FBL Financial Services, Inc.,
557 U.S. 167, 175 (2009)]. The ADEA requires that “age [be] the
‘reason’ that the employer decided to act.” Id. Because an ADEA
plaintiff must establish “but for” causality, no “same decision”
affirmative defense can exist: the employer either acted “because of” the
plaintiff’s age or it did not. Id. at 2352 (“The burden of persuasion does
not shift to the employer to show that it would have taken the action
regardless of age, even when a plaintiff has produced some evidence that
age was one motivating factor in that decision.”).
17

Doc. no. 1 (Complaint) ¶ 16.

18

Id. ¶ 17.
5

Mora, 597 F.3d at 1204 (alterations supplied).
As a result of the Supreme Court’s decision in Gross v. FBL Financial Services,
Inc., 557 U.S. 167 (2009), “[t]here is some argument among the courts about whether
the necessary implication of Gross is that a plaintiff cannot simultaneously pursue
claims under the ADEA and [some other anti-discrimination statute] regarding the
same employment decision and must therefore elect between the two theories.”
Moore v. Jefferson County Board of Education, Case No. 10-3272, 2012 U.S. Dist.
LEXIS 101787 (N.D. Ala. June 11, 2012) (Kallon, J.) (alterations supplied) (citing
Culver v. Birmingham Board of Education, 646 F. Supp. 2d 1270, 1271-72 (N.D. Ala.
2009) (Acker, J.)).
In the Culver case that arose in this District, for example, the plaintiff accused
his former employer of discriminating against him on the basis of both his age and his
race in violation of the ADEA and Title VII. Culver, 646 F. Supp. 2d at 1271. In the
wake of the Supreme Court’s decision in Gross, supra, Judge Acker held that the
plaintiff in Culver could not pursue both theories of recovery, and ordered him to
“either abandon his claim of age discrimination, or abandon his claim of race
discrimination.” Id. Judge Acker explained his rationale for forcing the plaintiff to
choose the remedy that he would pursue as follows:
Gross holds for the first time that a plaintiff who invokes the ADEA has
6

the burden of proving that the fact he is over 40 years old was the only
or the “but for” reason for the alleged adverse employment action. The
only logical inference to be drawn from Gross is that an employee cannot
claim that age is a motive for the employer’s adverse conduct and
simultaneously claim that there was any other proscribed motive
involved. For this reason, the court required [the plaintiff] to choose
between his ADEA alternative, which would require him to prove age as
the only reason for the adverse employment action, and his Title VII
claim.
Culver, 646 F. Supp. 2d at 1271-72 (emphasis in original, alteration supplied).
Likewise, in Gwin v. BFI Waste Services, LLC, 718 F. Supp. 2d 1326 (N.D.
Ala. 2010) (Acker, J.), the plaintiff accused his former employer of age- and racebased employment discrimination in violation of the ADEA and Title VII. Id. at 1327.
The employer moved to dismiss the complaint because, in Culver, the court had
interpreted the Gross opinion “to prevent an employee who complains under ADEA
for an adverse employer action from claiming any other basis for the adverse action.”
Id. In lieu of dismissal, however, Judge Acker ordered the plaintiff in Gwin to amend
his complaint “to eliminate either his ADEA claim or his Title VII claim.” Id. at
1333.
In Freeman v. Koch Foods of Alabama, Case No. 09-270, 2010 U.S. Dist.
LEXIS 59502 (M.D. Ala. June 15, 2010) (Fuller, J.), however, the court explicitly
held the reasoning in Culver to be “illogical.”19
19

In that case, the plaintiff employee did not assert a claim for discrimination on the basis
of her age, but did assert claims for discrimination and retaliation under three other theories: i.e.,
race, disability, and medical-leave status. Freeman, 2010 U.S. Dist. LEXIS 59502, at *1-2.
7

A sole-causation standard (which requires a plaintiff to prove that the
defendant’s consideration of a protected category is the only cause of a
challenged employment decision) is not the same as a but-for, or
necessary, causation standard (which requires a plaintiff to prove that a
challenged employment decision would not have occurred but for the
defendant’s consideration of a protected category). See McDonald v.
Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10, 96 S. Ct. 2574, 49
L. Ed. 2d 493 (1976) (distinguishing sole causation from but-for
causation); Michael C. Harper, The Causation Standard in Federal
Employment Law: Gross v. FBL Financial Services, Inc., and the
Unfulfilled Promise of the Civil Rights Act of 1991, 58 Buff. L. Rev. 69,
75 (2010) (explaining the difference between various types of
employment-discrimination causation standards). Even though a sole
cause is also a necessary cause, a necessary cause need not be a sole
cause. Rather, a particular result may have two or more necessary
causes, and the majority opinion in Gross does not hold otherwise.
Thus, logic dictates that [the plaintiff] need not be required to choose
between her three theories of discrimination and retaliation.
Freeman, 2010 U.S. Dist. LEXIS 59502, at *4-5 (emphasis and alteration supplied).
Similarly, in Archie v. Home-Towne Suites, LLC, 749 F. Supp. 2d 1308 (M.D.
Ala. 2010) (Albritton, J.), the court rejected the argument that a plaintiff could not
proceed with both an age and a gender discrimination claim.
The court recognizes that there are courts which have interpreted Gross
to require an election of remedies by plaintiffs. See, e.g., Culver v.
Birmingham Bd. of Educ., 646 F. Supp. 2d 1270 (N.D. Ala. 2009)
(Acker, J.). Other courts have declined to so. See, e.g., DeAngelo v.
Dentalez, Inc., No. 09-535, 738 F. Supp. 2d 572, 2010 U.S. Dist. LEXIS
91378, 2010 WL 3488609 at *5 (E.D. Pa. Sep. 2, 2010) (collecting
cases).
Accordingly, the Freeman defendant urged the court to extend the Culver holding requiring the
plaintiff to elect between his age and other discrimination claims, to require the plaintiff to elect
between her disability and other discrimination claims. Thus, with regard to age discrimination, the
Freeman holding is mere dicta.
8

As stated above, Gross requires “but for” causation. It has long
been the law that there is a difference between “but for” causation and
“sole” causation. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S.
273, 282 n.10, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976) (distinguishing
sole causation from but for causation); see also McNely v. Ocala
Star-Banner Corp., 99 F.3d 1068, 1076 (11th Cir. 1996) (same). Gross
refers only to “but for” causation. Gross, 129 S. Ct. at 2350.
It appears to the court, therefore, that even after Gross, a plaintiff
might prove that gender discrimination was a substantial or motivating
factor in an adverse employment action, satisfying the standard for the
Title VII claim, but also show that if it had not been for her age, she
would not have been terminated, satisfying the ADEA standard, so that
no election of remedies is required.
Archie, 749 F. Supp. 2d at 1315 (emphasis supplied).
In sum, and because neither the United States Supreme Court nor the Eleventh
Circuit have yet resolved the split between Culver and its progeny, on the one hand,
and Freeman and its progeny, on the other hand, it does not appear that there is
binding authority on the basis of which this court must force plaintiff in the present
action to elect between his claims under the ADEA and his claims under the ADA and
FMLA. See Camreta v. Greene, ___U.S. ___, 131 S. Ct. 2020, 2033 n.7 (2011) (“A
decision of a federal district court judge is not binding precedent in either a different
judicial district, the same judicial district, or even upon the same judge in a different
case.”).
B.

Inconsistent Claims Under Federal Rules of Civil Procedure 8(d)(2) and
(3)
9

When the issue of pleading simultaneous discrimination claims under the
ADEA and other federal anti-discrimination statute arises at the stage of a motion to
dismiss, several courts have turned to the standards for pleading inconsistent claims
under the Federal Rules of Civil Procedure. Rules 8(d)(2) and (3) provide as follows:
(2)

A party may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or defense
or in separate ones. If a party makes alternative statements, the
pleading is sufficient if any one of them is sufficient.

(3)

A party may state as many separate claims or defenses as it has,
regardless of consistency.

Fed. R. Civ. P. 8(d)(2)-(3).
In Goodridge v. Siemens Energy, Inc., 276 F.R.D. 540, 542 (N.D. Ala. 2011)
(Hopkins, J.), the court held that a plaintiff could, “at the initial pleadings stage of
her case, before any discovery has occurred, allege disparate treatment claims under
both Title VII and the ADEA.” Id. at 542 (emphasis supplied).
Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S. Ct. 2343, 174 L. Ed. 2d
119 (2009), . . . was tried to a jury verdict on plaintiff’s sole claim,
demotion based on age in violation of the ADEA. The trial judge gave
the jury a “mixed-motives” instruction. The Supreme Court held that a
mixed-motives instruction is never appropriate in an ADEA case. We
hold that a plaintiff bringing a disparate-treatment claim pursuant to the
ADEA must prove, by a preponderance of the evidence, that age was the
“but-for” cause of the challenged adverse employment action. The
burden of persuasion does not shift to the employer to show that it would
have taken the action regardless of age, even when a plaintiff has
produced some evidence that age was one motivating factor in that
decision. Gross v. FBL Financial Services, Inc., 129 S.Ct. at 2352.
10

Thus, although, after Gross (and Twombly and Iqbal), a plaintiff
who brings claim under the ADEA must allege facts sufficient to support
a reasonable inference that age was the “but for” cause of the adverse
employment action challenged under that claim, Gross does not in any
way limit a plaintiff’s ability to plead alternative facts and alternative
theories.20
Goodridge, 276 F.R.D. at 542.
Likewise, in Bailey v. City of Huntsville, Case No. 11-0156, 2012 U.S. Dist.
LEXIS 77807 (N.D. Ala. May 25, 2012) (Greene, J.), Chief Magistrate Judge Pual
Greene held that a plaintiff is not required to elect, at the motion to dismiss stage,
between her age discrimination claim and her other discrimination claims. Id. at *26.
Plaintiff argues that she was discriminated against based on gender
when she was denied the 2007 promotion; she argues that she was
discriminated against based on age for both the 2007 and 2008 denials
of promotion.
As an initial matter, defendant argues that plaintiff must show that
her age was the “but for” reason for any adverse employment action.
Defendant cites to Horn v. United Parcel Services, Inc., 433 Fed. Appx.
788, 793 (11th Cir. 2007) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009)). In Gross, the Supreme
Court held that:
[A] plaintiff bringing a disparate-treatment claim pursuant
to the ADEA must prove, by a preponderance of the
evidence, that age was the “but for” cause of the challenged
employer action. The burden of persuasion does not shift
to the employer to show that it would have taken the action
regardless of age, even when a plaintiff has produced some
20

In a footnote, the Goodridge court noted that it “is aware of the holding of Culver v.
Birmingham Bd. Of Educ., 646 F. Supp. 2d 1272 (N.D. Ala. 2009) but is not persuaded by it.”
Goodridge, 276 F.R.D. at 542 n.1.
11

evidence that age was one motivating factor in that
decision.
Gross, 129 S.Ct. at 2352. One judge of this court has taken the position
that the necessary implication of Gross is that a plaintiff cannot
simultaneously pursue claims under the ADEA and Title VII regarding
the same employment decision and must therefore elect between the two
theories. See Culver v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1270,
1271-72 (N.D. Ala. 2009) (Acker, J.). Other judges of this court are not
bound by that decision. Fishman & Tobin, Inc. v. Tropical Shipping &
Const. Co., 240 F.3d 956, 965 (11th Cir. 2001); see also Goodridge v.
Siemens Energy, Inc., 276 F.R.D. 540, 2011 WL 4552504, *2 & n.1
(N.D. Ala. 2011) (Hopkins, J., disagreeing with Culver). Indeed, even
Judge Acker could reverse course on the same issue in another case if he
saw fit.
This argument does not entitle defendant to summary judgment on
any claim nor is the plaintiff required to elect between her claims. Gross
did not consider whether a plaintiff might pursue both an ADEA claim
and a claim under Title VII or § 1981 based on the same adverse job
action. Nor did that case hold that there can be only one “but-for” cause
of an employment decision. It is a long-recognized tenet of tort law that
a plaintiff’s injury can have multiple “but-for” causes, each one of which
may be sufficient to support liability.21 Requiring proof that a prohibited
21

In a footnote, the Bailey court reasoned:

It is not difficult to conceive of a scenario where this principle could apply
to an employment decision alleged to violate both the ADEA and Title VII or §
1981. Consider the example of a qualified, 50 year-old female job applicant who is
rejected for a vacant position that is later filled by a 30 year-old male. She sues the
employer for age discrimination under the ADEA and sex discrimination under Title
VII. During discovery, it is shown that, around the time he rejected the plaintiff, the
decision-maker had said, “Old people and women are all terrible workers. I’ll never
hire either one, and old women are the absolute worst.” It seems inconceivable that
Congress or the Gross Court would have contemplated the decision-maker’s
misogyny as exculpating the employer from liability under the ADEA. See
Restatement (2d) of Torts, § 432(2); Restatement (3d) of Torts: Liability for Physical
and Emotional Harm §§ 26, 27.
Bailey, 2012 U.S. Dist. LEXIS 77807 at *26-27 n.5.
12

consideration was the “but-for” cause of an adverse job action does not
equate to a burden to show that such consideration was the “sole” cause.
See McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1076 (11th Cir.
1996). This remains so even after Gross. Moreover, a plaintiff is
authorized to plead and pursue alternative theories of recovery, even if
they are inconsistent. See Fed. R. Civ. P. 8(d)(3); Cleveland v. Policy
Management Systems Corp., 526 U.S. 795, 805, 119 S. Ct. 1597, 143 L.
Ed. 2d 966 (1999); United Technologies Corp. v. Mazer, 556 F.3d 1260,
1273-74 (11th Cir. 2009). Therefore, if there is sufficient evidence to
support a reasonable inference that age was a “but-for” cause of her
termination, as required by Gross, plaintiff would be entitled to present
her ADEA claim to a jury. That would be so notwithstanding that there
might also be sufficient evidence to support an inference that race, sex,
or any other reason, played “a motivating part” in the discharge decision,
either by itself or in conjunction with age or some other factor, as
required to support liability under Title VII. At this stage,22 n6 plaintiff
is not required to elect between her age discrimination claim and her
other claims.
Bailey, 2012 U.S. Dist. LEXIS 77807 at *23-26 (alterations in original, emphasis
supplied).23
22

In a footnote, the Bailey court held:

It would seem at the very most, Gross might imply that a court could have
to instruct the jury that it can find in plaintiff’s favor only on her claims alleging age
discrimination or on her claims alleging retaliation and race discrimination, but not
both. See Belcher v. Service Corp. Intern., 2009 U.S. Dist. LEXIS 102611, 2009 WL
3747176, *3 (E.D. Tenn. Nov. 4, 2009) (“Gross arguably makes it impossible for a
plaintiff to ultimately recover on an age and gender discrimination claim in the same
case.”). Even that proposition, however, is doubtful if one accepts that age can be
a “but for” cause and that race can simultaneously play even “a motivating part” in
an employment decision. Gross simply does not hold or imply that a plaintiff is
foreclosed from simultaneously seeking to prove liability under the ADEA and Title
VII or section 1981. While Culver holds otherwise, the case is unconvincing.
Bailey, 2012 U.S. Dist. LEXIS 77807 at *27-28 n.6.
23

To this court’s knowledge, the most recent case from an Alabama district court on
simultaneous claims for ADEA and other types of discrimination is Ephraim v. Pantry, Inc., Case.
No. 11-01604, 2012 U.S. Dist. LEXIS 136055 (N.D. Ala. Sept. 24, 2012) (Acker, J.). Like Judge
13

Because Federal Rules of Civil Procedure 8(d)(2) and (3) permit alternative and
inconsistent claims, this court concludes that plaintiffs may plead age discrimination
in combination with other proscribed motives for adverse employment actions. Thus,
the plaintiff in this action correctly argues that “Rule 8 clearly allows a plaintiff to
plead incompatible claims, so long as the pleading standards of the Federal Rules are
satisfied independently as to each of those claims.”24 Further, plaintiff correctly notes
that neither Culver nor Gwin mention Federal Rules of Civil Procedure 8(d)(2) and
(3) when holding that the plaintiffs in those actions could not simultaneously plead
discrimination claims under the ADEA and other anti-discrimination statutes.25
In response, Lawrence asserts that, “[w]hile it is true that Plaintiff may pursue
alternative and inconsistent legal theories in a single complaint, Rule 8(d) does not
Hopkins in Goodridge and Judge Greene in Bailey, Judge Acker in Ephraim used a procedural
vehicle to permit the plaintiff to plead both age- and religion-based discrimination, but did so at the
summary judgment stage of the litigation. Id. at *3.
It is still theoretically possible to prove by using McDonnell Douglas that
“age” was the “but-for” reason for an adverse action, but is not possible to allege
that both “age” and some other proscribed motive was a reason for the adverse
action. In Mora, the Eleventh Circuit recognized the irreconcilability of such a
pleading with Gross. The [defendant] has not forced [the plaintiff] to elect between
her two theories. In order to prevent her from transgressing the lessons in Gross and
Mora, the court will not make her elect between theories at this late stage in the
proceeding, but will interpret [the plaintiff’s] complaint as two separate consolidated
cases, one for hostile work environment based on her Christianity, and another for
termination based on her age. This is the only way to treat [the plaintiff’s] complaint
to prevent it from violating Gross and Mora.
Ephraim, 2012 U.S. Dist. LEXIS 136055, at *6-7 (alterations and emphasis supplied).
24

Doc. no. 9, at 10.

25

Id.
14

permit Plaintiff to plead inconsistent facts.”26
Accepting all of Plaintiff’s pleaded facts as true — including those that
support his disability discrimination and FMLA retaliation claims —
Plaintiff’s complaint asserts that Defendant terminated his employment
“because of” both his age and disability, as well as in retaliation for
allegedly requesting leave protected under the FMLA (Compl. ¶ 19.)
Because Plaintiff’s disability and protected conduct allegedly motivated
Defendant to terminate his employment, Plaintiff’s age could not be “the
reason” his employment was terminated. Thus, Plaintiff’s assertion that
his employment was terminated “because of” his age is not facially
plausible in light of all of the facts alleged in his Complaint.27
Upon examining the allegations in the present complaint, this court finds that
they are consistent with both the theory that the “but-for” cause of his termination was
discrimination on the basis of his age, and, the theory that a substantial factor in his
termination was discrimination on the basis of his disability, and/or retaliation for his
act of requesting medical leave. Ultimately, the evidence may show that the present
plaintiff was terminated due to his age, his disability, his act of requesting medical
leave, his poor job performance, a combination of the above, or none of the above.
Because the only person who knows Greg Moore’s true motives is Moore himself, it
would not make sense to force plaintiff to guess those motives without the benefit of
discovery by requiring him to amend his complaint to eliminate either his ADEA
claim or his ADA and FMLA claims at the motion to dismiss stage of the litigation.
26

Doc. no. 10, at 6 (citing Brian S. Clarke, Grossly Restricted Pleading: Twombly/Iqbal,
Gross, and Cannibalistic Facts in Compound Employment Discrimination Claims, 2010 UTAH L.
REV., 1101, 1120 (2010)) (emphasis in original, alteration supplied).
27

Id.
15

IV. CONCLUSION
For the reasons explained above, Lawrence’s motion to dismiss is due to be,
and it hereby is, DENIED.
DONE and ORDERED this 23rd day of October, 2012.

______________________________
United States District Judge

16