Bargeron v. Schleicher et al

Filing 16

ORDER denying 14 Motion for Reconsideration. Signed by Judge B. Avant Edenfield on 5/30/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
GEORGE BARGERON,
Plaintiff,
v.

4:12-cv-71

DIANE SCHLEICHER, ROBERT
BRYSON, and THE CITY OF TYBEE
ISLAND, GEORGIA,
Defendants.
ORDER
I. INTRODUCTION
Plaintiff George Bargeron moves the
Court to reconsider its dismissal of his
ADEA discriminatory termination claim.
See Doc. 14.
II. STANDARD OF REVIEW
“Reconsideration of a previous order is
an extraordinary remedy to be employed
sparingly.” Groover v. Michelin N. Am.,
Inc., 90 F. Supp. 2d 1236, 1256 (M.D. Ala.
2000). It is appropriate “only if the movant
demonstrates that there has been an
intervening change in the law, that new
evidence has been discovered which was not
previously available to the parties in the
exercise of due diligence, or that the court
made a clear error of law.” McCoy v.
Macon Water Auth., 966 F. Supp. 1209,
1222-23 (M.D. Ga. 1997).
III. ANALYSIS
Bargeron’ s motion for reconsideration
focuses on his discriminatory termination
claim.
Bargeron cites Swierkiewicz v.

Sorema N.A. and argues both that he need
not prove but-for causation at the motion to
dismiss stage and that he has alleged facts
that make a potential finding of but-for
causation and age discriminatory
termination plausible. See Doc. 14 at 2-4;
see also 534 U.S. 506, 508 (2002).
The Court agrees with Bargeron that he
need not prove but-for causation at this
stage. Despite imprecise language in this
Court’s May 2, 2012 Order indicating
otherwise, the Court ultimately dismissed
Bargeron’ s disparate treatment claims
because he failed to allege facts satisfying
the plausibility standard. See Doc. 13 at 7
(analyzing the factual allegations in the
complaint).
“[A]n employment discrimination
plaintiff need not plead a prima facie case of
discrimination.” Swierkiewicz, 534 U.S. at
515. “But complaints alleging
discrimination still must meet the
‘plausibility standard’ of Twombly and
Iqbal.” Henderson v. JP Morgan Chase
Bank, N.A., 436 F. App’x 935, 937 (11th
Cir. 2011); see also Edwards v. Prime, Inc.,
602 F.3d 1276, 1300-01 (11th Cir. 2010)
(requiring a post-Iqbal hostile work
environment claim to allege prima facie
elements in order to survive a motion to
dismiss).
[W]hile Swierkiewicz made clear that
pleading a McDonnell Douglas
prima facie case was not necessary
to survive a motion to dismiss, it did
not even remotely suggest that a
pleading could survive dismissal
when it consisted of only the barest
of conclusory allegations without

notice of the factual grounds on
which they purport to be based.

substantially younger employee.” Pinkney,
2011 WL 2433505, at *2. Substantially
younger does not necessarily mean that the
replacement is under the age of forty. See
O’Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308, 313 (1996).

Jackson v. BellSouth Telecomms., 372 F.3d
1250, 1270-71 (11th Cir. 2004).
“[A] plaintiff bringing a disparatetreatment 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.”
Gross v. FBL Fin. Servs., Inc., 129 S. Ct.
2343, 2352 (2009).

Bargeron’s complaint alleges that
Bargeron was fifty-nine at the time he was
fired. See Doc. 6 at 4. The complaint also
alleges that he was replaced by someone
who was “substantially younger.” See id. at
6. The allegation that Bargeron was
replaced by someone “ substantially
younger” is a mere legal conclusion. Thus,
Bargeron has failed to plead a plausible case
for disparate treatment with regards to his
termination.

Accordingly,
although
Bargeron’s
complaint need not have contained specific
facts establishing a prima facie
discrimination case, the complaint still
needed factual matter sufficient to support a
reasonable inference that Defendants
discriminated against Bargeron because of
his age. See Goodridge v. Siemens Energy,
Inc., 276 F.R.D. 540, 542 (N.D. Ala. 2011)
(“[A]fter Gross (and Twombly and Iqbal), a
plaintiff who brings a 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 . . . .”); Pinkney
v. Maverick Condo. Ass’n, Inc., 2011 WL
2433505, at *2 (M.D. Fla. June 14, 2011)
(“To sufficiently plead an ADEA claim,
Plaintiff must allege facts plausibly
establishing that her age was a “but-for”
cause of her termination . . . .”).

IV. CONCLUSION

Accordingly, Bargeron’s motion for
reconsideration, see Doc. 14, is DENIED.
Bargeron may, however, amend his
complaint within thirty (30) days to allege
the age of the individual who replaced him.
The Court will reconsider his discriminatory
termination claim upon the filing of
Bargeron’s amended complaint.

This 30th day of May 2012.

' ,S 9 6L L 4 ^ ^

R AVANT EDENFIELØ, RIDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

“The requisite causal connection
between age and termination may be
sufficiently pled by, inter alia, factual
allegations indicating that the plaintiff was
replaced by a substantially younger
individual or that the plaintiff was treated
differently than a similarly situated,
2