Griffin et al v. Home Depot USA, Inc.

Filing 15

MEMORANDUM AND ORDER granting in part and denying in part 7 Motion to Dismiss for Lack of Jurisdiction/ Motion to Dismiss for Failure to State a Claim. The court shall grant defendant's motion to dismiss as to plaintiff's disparate impac t claim. This caim shall be dismissed without prejudice. The court shall also dismiss the claims of plaintiff Panichello without prejudice. Otherwise, defendant's mtion to dismiss shall be denied. Signed by District Judge Richard D. Rogers on 1/9/2012. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KAREN GRIFFIN, SHYLA CASE,
BARBARA HINDMAN, MARGARET
MOORE, VICKY STEVANS and
MARK PANICHELLO,
Plaintiffs,
vs.

Case No. 11-2366-RDR

HOME DEPOT USA, INC.,
Defendant.
MEMORANDUM AND ORDER
This case proceeds upon a class action complaint alleging age
discrimination in employment by defendant Home Depot USA, Inc.
This case is before the court upon defendant’s motion to dismiss
for failure to state a claim and for lack of jurisdiction under
FED.R.CIV.P. 12(b)(6) and FED.R.CIV.P. 12(b)(1).
I.

Allegations in the complaint

The complaint lists six plaintiffs with ages ranging from 46
to 61.

These plaintiffs are:

Karen Griffin; Shyla Case; Barbara

Hindman; Margaret Moore; Vicky Stevans; and Mark Panichello.
plaintiff worked in a different Home Depot store.

Each

Four plaintiffs

(Griffin, Case, Hindman and Moore) are from Kansas and worked in
different Kansas Home Depot stores, one (Stevans) is from New York
and worked in a Home Depot store there, and one (Panichello) is
from Oregon and, during his career, worked in two Home Depot stores
in Oregon.

Each plaintiff was terminated on a different date in

2010.
Three plaintiffs (Griffin, Case and Moore), each from Kansas,
worked as “associate coordinators.” Their positions were eliminated
and defendant did not rehire them for new positions labeled
“associate

support

department

supervisors”

even

though

those

positions were virtually the same job as “associate coordinator”
and the plaintiffs were excellent employees.
allege

that

younger,

less

qualified

These plaintiffs

employees

received

the

“associate support” jobs.
Three plaintiffs (Hindman, Stevans, and Panichello) worked as
sales

managers

or

sales

associates.

These

plaintiffs

were

terminated based on allegations relating to tardiness, customer
service, or violations of policies regarding store purchases.
These plaintiffs claim, however, that they were treated less
favorably than younger employees, particularly with regard to job
discipline for similar alleged infractions and with regard to
scheduling.
The complaint generally alleges that defendant has “companywide policies and practices which have targeted older employees for
discharge and disproportionately discharged older employees” and
that

defendant

has

discrimination.
complaint
methodology

further
for

engaged

in

intentional

and

willful

Doc. No. 1, ¶¶ 15-16; also ¶¶ 73-75.
alleges
making

that

defendant

discharge

2

has

decisions

a

age
The

“subjective

regarding

older

employees [which] has had an unjustified disparate impact on older
employees.”
II.

Doc. No. 1, ¶ 17.

Legal standards

Under the standards governing Rule 12(b)(6) motions alleging
a

failure

to

allegations

state

in

the

a

claim,

the

complaint

as

inferences in favor of plaintiff.
1092

(10th

Cir.

2008).

The

court
true

accepts
and

draws

the

factual

reasonable

Gann v. Cline, 519 F.3d 1090,

complaint

must

contain

enough

allegations of fact “to state a claim to relief that is plausible
on its face.”
(2007).

Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 570

“‘[P]lausibility’ in this context must refer to the scope

of the allegations in a complaint:

if they are so general that

they encompass a wide swath of conduct, much of it innocent, then
the plaintiffs ‘have not nudged their claims across the line from
conceivable to plausible.’”

Robbins v. Oklahoma, 519 F.3d 1242,

1247 (10th Cir. 2008) (quoting Twombly, 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.”

Ashcroft v.

Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). “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. (quoting Twombly, 550 U.S. at 556). Thus, “where
the well-pleaded facts do not permit the court to infer more than

3

the mere possibility of misconduct, the complaint has alleged — but
it has not ‘show[n]’ — ‘that the pleader is entitled to relief’”
within the meaning of FED.R.CIV.P. 8(a)(2).
FED.R.CIV.P. 8(a)(2)).

Id. at 1950 (quoting

It is not necessary, however, “for the

complaint to contain factual allegations so detailed that all
possible defenses would be obviated.

Even after Twombley, the

factual allegations need only contain enough allegations of fact
‘to state a claim to relief that is plausible on its face.’”
Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1276 (10th Cir.
2009) (quoting Twombley, 550 U.S. at 570).
Defendant’s Rule 12(b)(1) argument is based upon a factual
attack relating to the exhaustion of administrative remedies.
such,

the

court

may

consider

allegations of the complaint.

evidence

beyond

the

As

factual

See Stuart v. Colorado Interstate

Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001).
III.

Arguments and analysis
A.

Disparate impact

Defendant’s

first

argument

is

undisputed

by

plaintiffs.

Plaintiffs agree that the complaint does not state a claim for
liability under a disparate impact theory.

In defendant’s reply

brief, defendant argues that the disparate impact claim should be
dismissed with prejudice and that plaintiffs should not be allowed
to conduct discovery with respect to the claim.

The court has not

reached the merits of a disparate impact claim.

4

Therefore, the

court

shall

dismiss

the

claim

without

prejudice.

Part

of

defendant’s argument supports this action. If, as defendant argues,
the court does not have jurisdiction over a disparate impact claim
because of a failure to exhaust administrative remedies, the claim
should be dismissed without prejudice.

See McDonald-Cuba v. Santa

Fe Protective Services, Inc., 644 F.3d 1096, 1101 (10th Cir. 2011)
(remanding case for dismissal of a Title VII retaliation claim
without prejudice for failure to exhaust administrative remedies).
The court agrees with defendant that plaintiffs should not be
permitted

to

conduct

discovery

upon

a

claim

which

has

been

dismissed from the case. If the claim is later added by amendment,
then discovery may be warranted.
B. Disparate treatment claims of Griffin, Case and Moore
Defendant contends that these claims should be dismissed
because the complaint does not contain any factual content that
would plausibly suggest that “but for” their age, these employees
would have maintained their employment.1
who

worked

as

“associate

These are the plaintiffs

coordinators,”

had

their

positions

eliminated, and then were not rehired for the virtually identical
job of “associate support department supervisor.”
The complaint alleges that plaintiff Griffin was not given the
“associate

support”

position

despite

1

being

an

award-winning,

Defendant’s initial brief appears to confine this argument to
the disparate treatment claims of Griffin, Case and Moore. Doc.
No. 8 at pp. 6-7. So, the court has done the same.
5

excellent employee and scoring higher on the interview than the
younger individual who was selected.

Doc. No. 1, ¶¶ 27 and 31.

The complaint alleges that Case was also an excellent employee and
that older employees holding “associate coordinator” positions were
replaced with younger employees.

Doc. No. 1, ¶¶ 33 and 37.

The

complaint alleges that plaintiff Moore was not chosen for an
“associate support” position, but instead younger, less qualified
individuals were selected.”

Doc. No.1, ¶ 50.

Although it is a somewhat close call, the court finds that
these allegations together with the other asserted facts in the
complaint are sufficient to allege a plausible claim of disparate
treatment on the basis of age.

Other cases in this district have

made this finding in comparable situations.
Management

Co.,

Deffenbaugh

2011

WL

Industries,

4452526
Inc.,

*4

2011

See Snyder v. Embarq

(9/26/2011);

Stenger

WL

*2

1212241

v.

(D.Kan.

3/29/2011); see also, Blakely v. Big Lots Stores, Inc., 2011 WL
2600754 *8 (N.D.Ind. 6/29/2011). Therefore, the court shall reject
defendant’s argument to the contrary.
C.

Pattern and practice allegations

Defendant’s next argument is that the complaint fails to state
a “claim” for “pattern or practice” discrimination and that this
“claim” must be dismissed under Rule 12(b)(6) and the Twombly/Iqbal
standards.

Defendant contends that the complaint fails to allege

facts plausibly suggesting a discriminatory “standard operating

6

procedure” or that plaintiffs are “similarly situated.”
The Tenth Circuit, agreeing “with the strong majority of our
sister circuits,” has held, albeit in an unpublished decision, that
the pattern or practice method “should be reserved for government
actions or plaintiffs in class actions to establish the presence of
a discriminatory policy, rather than to prove an individual claim.”
Semsroth v. City of Wichita, 304 Fed.Appx. 707, 717-18, 2008 WL
5328466 (10th Cir. 12/22/2008). Hence, defendant’s argument invites
the court to apply Twombly/Iqbal analysis to a method of proving a
class action claim.
The court shall decline to do so.

Twombly and Iqbal address

the standard of pleading set forth in Rule 8(a).

The rule

governing class actions, FED.R.CIV.P. 23, “does not set forth a
mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct.
2541, 2551 (2011).

“‘In determining the propriety of a class

action, the question is not whether the plaintiff or plaintiffs
have stated a cause of action or will prevail on the merits, but
rather whether the requirements of Rule 23 are met.’”

Eisen v.

Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (quoting Miller v.
Mackey International, 452 F.2d 424, 427 (5th Cir. 1971)). The court
does not believe plaintiffs must allege facts showing a plausible
pattern and practice of discrimination in order to satisfy the Rule
12(b)(6) and Rule 8 requirements for stating a claim upon which
relief may be granted.

See EEOC v. Scrub, Inc., 2009 WL 3458530

7

(N.D.Ill.

10/26/2009)

(citing

Twombly,

550

U.S.

at

570;

Swierkiewiez v. Sorema N.A., 534 U.S. 506, 514-15 (2002)); see
also, Mooney v. Aramco Services Co., 54 F.3d 1207, 1219 (5th Cir.
1995) (“A ‘pattern or practice’ claim is not a separate cause of
action, but merely another method by which disparate treatment may
be shown.”); but see, Nicholas v. CMRE Financial Services, Inc.,
2009 WL 1652275 *8-9 (D.N.J. 6/11/2009) (class allegations must
comply with Rule 8(a) to proceed to class discovery).
D.

Failure to exhaust administrative remedies

Defendant has argued under FED.R.CIV.P. 12(b)(1) that the
claims of plaintiffs Stevans and Panichello should be dismissed for
lack of jurisdiction because these plaintiffs have not satisfied
the jurisdictional prerequisite of exhaustion of administrative
remedies.

See Shikles v. Sprint/United Management Co., 426 F.3d

1304, 1317 (10th Cir. 2005) (exhaustion of administrative remedies
is a jurisdictional prerequisite to sue under the ADEA). Defendant
has asserted that neither Stevans nor Panichello filed a charge of
discrimination with the EEOC.
Panichello

failed

to

file

Plaintiffs do not dispute that
an

administrative

charge.

An

administrative charge by plaintiff Stevans, however, has been
attached

to

plaintiffs’

response

to

the

motion

to

dismiss.

Defendant has replied that it will accept for the moment that
Stevans has exhausted her administrative remedies, although it has
no record of receiving her charge of discrimination.

8

Therefore,

defendant’s

argument

is

limited

to

the

claim

of

plaintiff

Panichello.
As for plaintiff Panichello, plaintiffs contend that his
failure to file an administrative charge is excused under the
operation of the “single filing rule.”

The “single filing rule”

permits a plaintiff who has not filed an individual EEOC charge to
piggyback on the timely filing of such a charge by another party
who faced similar discriminatory treatment in the same time frame.
Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1197 (10th Cir. 2004).
The Tenth Circuit stated in Foster that “[t]he act of filing a
charge is deemed ‘useless’ in situations in which the employer is
already on notice that plaintiffs may file discrimination claims,
thus negating the need for additional filings.”
Plaintiffs

contend

that

Panichello

may

Id.
piggyback

on

the

administrative charge filed by plaintiff Stevans on March 18, 2011.
In that charge, Stevans alleged that she was a sales associate at
a Home Depot store in Patchogue, New York and that she was
discriminated and retaliated against by Home Depot in the terms and
conditions of her employment because of her age and her complaints
of unfair treatment.

She further alleged that she saw older

employees being terminated while younger employees who violated
rules or engaged in inappropriate behavior were not terminated.
She also alleged that she saw Home Depot consistently hire young
employees as older employees left their employment.

9

Her EEOC

charge also states:

that she was terminated because of her age;

that Home Depot has engaged in a pattern and practice of age
discrimination; that other similarly situated employees have been
discriminated against by Home Depot; and that she was filing the
charge on her behalf and on behalf of other similarly situated
employees.
In Foster, the court stated that several different tests have
been employed to determine when the single filing rule should
apply.

365 F.3d at 1197.

The broadest test asked only whether the

claims of the administrative claimant and the subsequent plaintiff
arose out of the same circumstances and occurred within the same
general

time

frame.

A

narrower

test

required

that

the

administrative claim give notice that class-based discrimination
was being alleged and that the subsequent plaintiff was a member of
the class.

A still narrower test required that class-based

discrimination be alleged and that the administrative claimant
purported to represent that class or others similarly situated.
365 F.3d at 1197-98 (quoting Howlett v. Holiday Inns, Inc., 49 F.3d
189, 195 (6th Cir. 1995)).

The court in Foster stated that the

Tenth Circuit had referred to the first two tests in Thiessen v.
General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001) to
decide whether the single filing rule applied.

365 F.3d at 1198-

99.
The court finds that plaintiff Panichello’s termination from

10

employment did not arise from the same circumstances as plaintiff
Stevans.

They worked in Home Depot stores across the country from

each other.
September

They were discharged a few months apart - Stevans in

2010

(according

to

her

administrative

charge)

Panichello in December 2010 (according to the complaint).

and
The

complaint describes different grounds for their termination, and
Stevans’ administrative charge describes only a very broad claim of
disparate treatment and retaliation.

There is no allegation that

the same superior officers made the decision to terminate Stevans
and Panichello.

Nor does the complaint describe a viable class to

which

and

Stevans

Panichello

belong.

Although

Stevans’

administrative charge alleges that she was filing it on behalf of
similarly situated employees, the court does not believe that the
EEOC or Home Depot would be aware that such “similarly situated”
employees would include plaintiff Panichello or that Stevans’
charge would render an administrative charge by Panichello useless.
Consequently, at this stage the court finds that plaintiff
Panichello should not be excused from the administrative exhaustion
requirement

by

the

filing

Therefore,

plaintiff

of

Stevans’

Panichello

shall

administrative

charge.

be

without

dismissed

prejudice from this action.
IV.

Conclusion

To summarize, the court shall grant defendant’s motion to
dismiss as to plaintiff’s disparate impact claim. This claim shall

11

be dismissed without prejudice.

The court shall also dismiss the

claims of plaintiff Panichello without prejudice.

Otherwise,

defendant’s motion to dismiss shall be denied.
IT IS SO ORDERED.
Dated this 9th day of January, 2012 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge

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