Downs v. Brennan et al

Filing 12

MEMORANDUM OPINION AND ORDER Signed by Judge Rebecca Grady Jennings on 8/20/2019 granting in part and denying in part 9 Motion to Dismiss for Failure to State a Claim. cc: Counsel (RLJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

ELMER DOWNS

Plaintiff

v.

Civil Action No. 3:19-cv-00057-RGJ

UNITED STATES POSTAL SERVICE

Defendant

MEMORANDUM OPINION AND ORDER
Plaintiff Elmer Downs (“Downs”) brings this action against Defendant United States Postal
Service (“USPS”) alleging violations of the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000d et seq. [DE 1, Compl. at 4, ¶¶ 18–25]. USPS now moves to dismiss all claims
pursuant to Federal Rules of Civil Procedure 12(b)(6). [DE 9 at 27]. Briefing is complete, and
the matter is ripe. [See DE 9-1, Mem. to Mot. to Dismiss; DE 10, Pl.’s Resp. to Def.’s Mot. to
Dismiss; DE 11, Reply]. For the reasons below, the Motion is GRANTED IN PART and
DENIED IN PART. [DE 9].
BACKGROUND1
In 1966, USPS hired Downs as a Distribution Clerk. [DE 1 at 2, ¶ 10]. During his thirtythree years with USPS, Downs filed several complaints of race or gender discrimination. Id. In

Unless otherwise noted, the factual allegations are from the plaintiff’s complaint and assumed to be true
for the present motion. See Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)
(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)).
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1999, Downs retired from USPS. Id. Ten years later, Downs applied to be a mediator for USPS
to preside over informal Equal Employment Opportunity (“EEO”) complaints. Id. at ¶ 11. Downs
alleges that he “was informed that he could not be considered for a position because he had
previously filed an EEO complaint against the Postal Service.” Id. Downs then filed an EEO
claim of reprisal. Id.
In 2011, USPS solicitated applications to fill investigator positions with the National Equal
Employment Opportunity Investigative Services Office (“NEEOISO”). Id. at ¶ 12. Downs applied
to attend the Skills Enhancement Training session (“training session”). Id. After no response,
Downs asked about the status of his application and USPS informed him he was not selected. Id.
In August 2012, Downs filed an EEO complaint against NEEOISO, which the parties settled in
March 2014. Id. As part of the settlement agreement, USPS invited Downs to participate in a
future training session. Id.
In 2015, Downs participated in the training session that ran from June 8 to June 12. Id. at
¶ 13. Downs alleges that on June 10 he was informed he could not complete the training session
based on the failing grade from his last homework assignment. Id. at ¶ 14. Downs also alleges he
received no prior warnings of his poor performance and that he was unaware he needed to improve
his performance to remain in the training session. Id. at ¶ 14. USPS contends that Downs could
not successfully pass the course because it was mathematically impossible when combined with
his other scores. [DE 9-1, Mem. to MTD].
Downs filed this lawsuit against USPS alleging the reason given by USPS for not allowing
him to complete the training course was a pretext for age discrimination and retaliation under the
ADEA and Title VII. [DE 1]. USPS moves to dismiss these claims arguing that (i) Downs has no
right to relief under the ADEA or Title VII because he sought a position as an independent

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contractor, not as an employee [DE 9-1 at 31]; and that (ii) Downs failed to adequately plead a
retaliation claim as the Complaint contains no facts causally connecting Downs’ EEO activity with
his expulsion from the training program.

Id. at 30, n.3. In response, Downs argues that, as a

former USPS employee who engaged in protected activity, he is protected from retaliation
“regardless of whether the later position he sought was an employee or independent contractor.”
[DE 10 at 38]. Alternatively, Downs argues that whether the position was for an employee or
independent contractor requires factual analysis not appropriate on a motion to dismiss. Id.
DISCUSSION
A. Standard of Review.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must dismiss a
complaint if it “fail[s] to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6).
To state a claim, a complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). When considering a motion to dismiss,
courts must presume all factual allegations in the complaint to be true and make all reasonable
inferences in favor of the non-moving party. Total Benefits Plan. Agency, Inc. v. Anthem Blue
Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citation omitted).

The court must

determine whether “the claimant is entitled to offer evidence to support the claims,” not whether
the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506,
511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated by Harlow v.
Fitzgerald, 457 U.S. 800 (1982)). “But the district court need not accept a bare assertion of legal
conclusions.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citation
omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid

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of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation and
quotation omitted).
To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege “enough facts
to state a claim to relief that is plausible on its face.” Traverse Bay Area Intermediate Sch. Dist.
v. Mich. Dep't of Educ., 615 F.3d 622, 627 (6th Cir. 2010) (internal quotation marks omitted)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim becomes plausible “when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.
at 556). “A complaint will be dismissed pursuant to Rule 12(b)(6) if no law supports the claims
made, if the facts alleged are insufficient to state a claim, or if the face of the complaint presents
an insurmountable bar to relief.” Southfield Educ. Ass’n v. Southfield Bd. of Educ., 570 F. App’x
485, 487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 561–64). To summarize, the Court may
grant a motion to dismiss “only if, after drawing all reasonable inferences from the allegations in
the complaint in favor of the plaintiff, the complaint still fails to allege a plausible theory of relief.”
Morris v. Murray St. Univ., No. CIV.A. 5:18-CV-156-TBR, 2019 U.S. Dist. LEXIS 104235, at *6
(W.D. Ky. June 21, 2019).
B. Count I: Age Discrimination.
Downs brings a claim of age discrimination under the ADEA alleging that USPS
“discriminated against Downs based on his age when it refused to allow him to complete training
to be certified as an EEO Investigator.” [DE 1, ¶ 19]. Under the ADEA, “employers are prohibited
from discharging or otherwise discriminating against any employee with respect to compensation,
terms, conditions, or privileges of employment because of that individual’s age.” Allen v.
Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir. 2008). Plaintiffs alleging age discrimination

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have the initial burden of showing that age was a determinative factor in the adverse employment
action taken against them. Colter v. Bowling Green-Warren Cty. Reg’l Airport Bd., No. CIV.A.
1:17-CV-00118-JHM, 2017 WL 5490920, at *11 (W.D. Ky. Nov. 15, 2017) (citing Allen, 545
F.3d at 394). To state a plausible age discrimination claim, a plaintiff may present direct or
circumstantial evidence. Allen, 545 F.3d at 394. “Direct evidence of discrimination is that
evidence which, if believed, requires the conclusion that unlawful discrimination was at least a
motivating factor in the employer’s actions.” Id. at 393. “Circumstantial evidence, on the other
hand, is proof that does not on its face establish discriminatory animus but does allow a factfinder
to draw a reasonable inference that discrimination occurred.” Id.
When a plaintiff seeks to prove discrimination through indirect or circumstantial evidence,
courts apply the McDonnell Douglas burden shifting framework. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973), holding modified by Hazen Paper Co. v. Biggins, 507 U.S.
604 (1993).

Under this framework, a plaintiff must first establish a prima facie case of

discrimination. Allen, 545 F.3d at 394. To establish a prima facie case of age discrimination,
Downs must show that: (1) he is a member of a protected class, (i.e., he is over 40-years-old); (2)
he was subjected to an adverse employment action; (3) he was qualified for the position; and (4)
he was treated differently from similarly situated applicants outside the protected class. Mitchell
v. Vand. Univ., 389 F.3d 177, 181 (6th Cir. 2004).
While some courts require plaintiffs to plead a prima facie case of discrimination under the
McDonnell Douglas framework, the Sixth Circuit has explicitly rejected this heightened pleading
requirement. Keys v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012). Rather, the Sixth Circuit
follows the Supreme Court’s precedent created in Swierkiewicz. Id. In Swierkiewicz, the Supreme
Court unanimously held that the McDonnell Douglas framework is an evidentiary standard, not a

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pleading requirement. Id. (citing 534 U.S. at 510). The Supreme Court reasoned that since the
McDonnell Douglas framework does not apply to all employment discrimination lawsuits, courts
should instead review employment discrimination claims under the ordinary pleading rules of
Federal Rule of Civil Procedure 8(a). Swierkiewicz, 534 U.S. at 510–11.
Under the ordinary pleading rules a complaint must still contain either direct or indirect
allegations of the material elements of the alleged causes of action to show that a defendant is
liable for the alleged misconduct. Ali v. Univ. of Louisville, No. CIV. A. 3:17-cv-00638-RCJ, 2019
WL 539098, at *15 (W.D. Ky. Feb. 11, 2019). Thus, courts use the prima facie elements as
guideposts to navigate through a plaintiff’s plausible claims of relief. Id. (citing Khalik v. United
Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)); see also Morgan v. St. Francis Hosp., No. 18cv-2042-TLP-tmp, 2018 WL 7348028, at *7 (W.D. Tenn. June 26, 2018) (collecting cases).
For example, in Bargo v. Goodwill Industries of Kentucky, the court held that the plaintiff
failed to plead a viable age discrimination claim because plaintiff offered no factual allegations to
show she was terminated because of her age. 969 F. Supp. 2d 819, 823 (E.D. Ky. Jan. 17, 2013).
The court ruled that even though the plaintiff alleged she was over 40 years old and thus a part of
a protected class, and that her employer’s offered reasons for her termination were pre-textual, the
plaintiff omitted specific facts from which the court could draw a reasonable inference that
defendant was liable for the alleged misconduct. Id. The court determined that “[w]ithout
providing any factual allegations about a pattern of age discrimination, this allegation is nothing
but a legal conclusion that will not be accepted as true.” Id. (citing Iqbal, 556 U.S. at 679).
Similarly, in Gutterman v. SourceHOV Healthcare, Inc., the court held that plaintiffs must
plead more than mere recitations of the elements of an age discrimination claim to survive a motion
to dismiss. No. CIV.A. 3:15-CV-00093-JHM, 2016 WL 427921, at *9 (W.D. Ky. Feb. 2, 2016).

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In Gutterman, the court ruled that the plaintiff failed to include in his complaint a factual basis
which would permit the court to reasonably infer that the plaintiff’s age, as opposed to any other
nondiscriminatory reason, had factored into the employer’s decision to terminate the plaintiff. Id.,
at *8. In Gutterman, the plaintiff only alleged that he was older than 40 years old; that he was
qualified for the position; and that he believed a younger employee replaced him. Id. The court
found these allegations alone merely created speculation or suspicion and did not demonstrate a
plausible claim to relief for age discrimination. Id. Downs must therefore allege sufficient factual
content from which the Court can draw a reasonable inference that USPS discriminated against
him because of his age.
Downs fails to establish a plausible claim of age discrimination. His Complaint does not
allege facts from which the Court could draw a reasonable inference that USPS discriminated
against him and expelled him from the training program because he was over forty years old.
Much like Gutterman, Downs alleges that (1) he is older than forty years old, and thus a member
of a protected class; [see DE 1 at ¶ 9]; (2) “[t]he reasons given by NEEOISO are pretext for
discrimination based on Downs’ age” [Id. at ¶ 16]; and (3) “[s]imilarly situated younger attendees
. . . were treated more favorably by NEEOISO.” Id. at ¶ 17. Without providing any factual
allegations of discriminatory animus towards older people or the ages of the “similarly situated
younger attendees,” these allegations are legal conclusions and formulaic recitations of the
elements of an age discrimination claim which will not be accepted. The Court cannot reasonably
infer from these allegations that Downs’ age, as opposed to another nondiscriminatory reason (e.g.,
poor performance), was a determinative factor in USPS’s decision to dismiss him from the training
session. As a result, Downs has not sufficiently pled a claim of age discrimination and the Court
GRANTS the motion to dismiss as to Downs’ age discrimination claim under the ADEA.

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C. Count II: Retaliation.

Downs also asserts claims of retaliation under the ADEA and Title VII. He alleges USPS
dismissed him from the skills training program because he had engaged in EEO activity. USPS
argues that even if Downs completed the training program, the ADEA and Title VII do not apply
to independent contractors, and thus, because Downs was applying to be an independent
contractor, his claims fail as a matter of law.
In Robinson v. Shell Oil Co., the Supreme Court held that Title VII’s anti-retaliation
provisions include former employees suing for retaliatory, post-employment actions, such as a
negative reference to a potential employer. 519 U.S. 337, 339 (1997). In Robinson, a former
employee sued his former employer claiming his employer retaliated against him by unlawfully
disparaging his name to a prospective employer after he filed a charge of race discrimination. Id.
The Supreme Court ruled that the district court improperly dismissed the former employee’s
retaliation claim because the plaintiff employee was not protected under the Act as a former
employee. Id.
The Sixth Circuit recognizes also that former employees are protected under Title VII. See
EEOC v. Ohio Edison Co., 7 F.3d 541, 544 (6th Cir. 1992) (collecting cases which hold former
employees have protection under several anti-retaliation provisions); see also White v. Burlington
N. & Santa Fe Ry., 364 F.3d 789, 811 (6th Cir. 2004) (concurring opinion). While the Sixth Circuit
has not yet extended Robinson to the ADEA’s anti-retaliation provision, the Sixth Circuit has
acknowledged that the “majority of courts, including the Supreme Court, have been willing to
construe Title VII and companion provisions under . . . the Age Discrimination Employment Act,
29 U.S.C. § 623(d), broadly in order not to frustrate the purpose of these Acts, which is to prevent
fear of economic retaliation from inducing employees quietly to accept unlawful conditions.”

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Ohio Edison Co., 7 F.3d at 544 (citing Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288,
292 (1960)). Although Downs’ sought “contract work,” this fact does not preclude him from
pursuing claims of retaliation under the ADEA and Title VII because he is a former employee and
the protections of Title VII and ADEA apply former employees.
The ADEA’s anti-retaliation provision declares it “unlawful for an employer to
discriminate against any of his employees or applicants for employment . . . because such
individual . . . has opposed any practice made unlawful by this section, or . . . made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under
this Act.” 29 U.S.C. § 623(d). Similarly, the anti-retaliation provision of Title VII states it is
“unlawful for an employer to discriminate against an employee because the employee opposed an
unlawful employment practice, or made a charge, or participated in an investigation, proceeding,
or hearing related to Title VII.” Ohio Edison Co., 7 F.3d at 543 (citing 42 U.S.C. § 2000e-3(a)).
“A plaintiff in a Title VII or ADEA action may establish retaliation either by introducing direct
evidence of retaliation or by proffering circumstantial evidence that would support an inference of
retaliation.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 543 (6th Cir. 2008). Direct
evidence “requires no inference to conclude that unlawful retaliation was a motivating factor in
the employer’s action.” Id. at 544. Without direct evidence, the Court will apply the McDonnel
Douglas framework. McDonnell Douglas Corp., 411 U.S. at 802. Thus, the Court views Downs’
retaliation claims alongside the prima facie elements to determine if Downs stated plausible claims
to relief.
a. Retaliation under the ADEA.
To state a claim of retaliation under the ADEA, Downs must show that: (1) he engaged in
protected activity by the ADEA; (2) USPS knew about his protected conduct; (3) USPS took an

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adverse employment action towards him; and (4) there was a causal connection between the
protected activity and the adverse employment action. See Fox v. Eagle Distributing Co., Inc.,
510 F.3d 587, 591 (6th Cir. 2007). Most importantly, to receive protection under the ADEA, a
plaintiff’s expression of opposition must concern a violation of the ADEA. Id. (citing Booker v.
Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989)).
In Fox, the Sixth Circuit concluded that the plaintiff’s vague and baseless threats to sue his
employer did not rise to the level of opposition to age discrimination because the record lacked
any complaints made specifically about age discrimination. See 510 F.3d at 592. Similarly, in
Barber v. CSX Distribution Services, the court affirmed the dismissal of the plaintiff’s retaliation
claim because plaintiff’s internal complaint did not reference age discrimination and therefore did
not constitute protected activity under the ADEA. 68 F.3d 694, 701–702 (3d Cir. 1995).
Downs does not allege that he engaged in protected activity under the ADEA. Instead, he
alleges that he engaged in protected activity when he “filed several complaints of race or gender
discrimination related to his employment.” [DE 1 at ¶ 9] (emphasis added). This activity is
protected under Title VII, not the ADEA. For Downs’ complaints to be considered protected
activities under the ADEA, he must have complained about USPS’s alleged acts of age
discrimination. Because Downs only provides factual allegations of protected activity under Title
VII, Downs has failed to plead a plausible claim of retaliation under the ADEA. As a result,
USPS’s motion to dismiss Downs’ claim of retaliation under the ADEA is GRANTED.
b. Retaliation under Title VII.
To plead a claim of retaliation under Title VII, Downs must establish that: (1) he engaged
in activity protected by Title VII; (2) USPS knew about his protected activity; (3) USPS took
adverse employment action against him; and (4) there was a causal connection between the

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protected activity and the adverse employment action. Nguyen v. City of Clev., 229 F.3d 559, 563
(6th Cir. 2000). To sufficiently allege a causal connection in the complaint, a plaintiff must plead
factual content from which an inference could be drawn that the adverse action would not have
been taken had the plaintiff not filed a discrimination complaint. See Keys, 684 F.3d at 608;
Nguyen, 229 F.3d at 563.
As support for its argument, USPS cites Ali v. University of Louisville, No. CIV. A. 3:17cv-00638-RCJ, 2019 WL 539098, at *1 (W.D. Ky. Feb. 11, 2019). In Ali, the plaintiff failed to
allege a causal connection between his protected status and the University’s allegedly adverse
actions because Ali merely noted he belonged to a protected class but did not allege how similarly,
non-protected individuals were treated more favorably than him. Id., at *15. Unlike Ali, who
claimed discrimination on the basis of ethnicity, Downs claims he was retaliated against because
of his EEO protected activity. Under a claim of retaliation, Downs must allege facts sufficient to
support a causal connection between his protected activity and USPS’s adverse employment
action.
Downs has sufficiently alleged that he engaged in protected activity through these
allegations: (i) he filed several complaints of race or gender discrimination during his employment
with USPS; (ii) he filed a EEO claim of reprisal after he was told he could not be considered for a
mediator position as he had filed EEO complaints against the Postal Service; and (iii) he filed an
EEO complaint against NEEOISO which was later settled. As part of the settlement agreement,
USPS invited Downs to a future training session. Downs then attended the Skills Enhancement
Training session in June 2015, about fourteen months after the settlement of his complaint against
NEEOISO.

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Downs also alleges that NEEOISO trainers neither notified him that he needed to improve
his scores to pass the course, nor did they give him any warnings about his poor performance.
Reading the Complaint as a whole, Downs has provided a factual basis from which the Court may
reasonably infer at this stage of the proceedings a causal connection between Downs’ protected
activity and his expulsion from the training program. Under the pleading requirements of Twombly
and Iqbal, Downs need not develop his case completely before discovery begins. Thus, USPS’s
motion to dismiss Downs’ claim of retaliation under Title VII is DENIED.
CONCLUSION
Having considered the parties filings and the applicable law, and being otherwise
sufficiently advised, the Court ORDERS that Defendant’s Motion to Dismiss [DE 9] is
GRANTED IN PART and DENIED IN PART.

August 20, 2019

Cc:

Counsel of record

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