Brown v. On-Site Fuel Service, Inc.

Filing 9

ORDER AND REASONS granting 4 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the Court GRANTS defendant's motion to dismiss. Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff has 21 days to amend his complaint. Failure to timely amend will result in dismissal of the complaint with prejudice. Signed by Judge Sarah S. Vance on 1/22/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANTHONY F. BROWN

CIVIL ACTION

VERSUS

NO. 17-10691

ON-SITE FUEL SERVICE, INC.

SECTION “R” (5)

ORDER AND REASONS
Before the Court is defendant’s motion to dismiss plaintiff’s
complaint. 1 For the following reasons, the Court grants the motion.
I.

BACKGROUND
This case arises out of allegations of employment discrimination on the

basis of race and age. 2 Plaintiff Anthony Brown is African-American.3 On
January 16, 2017, plaintiff began working for Defendant On-Site Fuel
Service, Inc. as a Route Manager.4 Defendant’s Operations Manager, Scott
Thompson, instructed plaintiff to report to training in Houston, Texas on
January 16, 2017.5 Thompson allegedly told plaintiff that the training would

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R. Doc. 4.
R. Doc. 1.
Id. at 1 ¶ 3.
Id.
Id. at 1 ¶¶ 3-4.

last one to two weeks. 6 Plaintiff asserts that he completed one full week of
training, but did not receive his schedule for the second week. 7 According to
the complaint, plaintiff made several inquiries regarding his schedule and
pay, but did not receive a response.8 On January 30, 2017, Thompson
allegedly called plaintiff. 9 The complaint does not specify what Thompson
said on this call. On October 16, 2017, plaintiff filed a pro se complaint
alleging that he was subjected to discrimination because of his race and age. 10
II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible when the plaintiff pleads facts that allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678. A court must accept all well-pleaded facts as true and must draw

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Id. at 2 ¶ 5.
Id. at 2 ¶¶ 5-6.
Id. at 2 ¶¶ 6-7.
Id. sat 2.
Id. at 1 ¶ 3.
2

all reasonable inferences in favor of the plaintiff. See Lormand v. US
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need
not contain detailed factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause of action. Id.
In other words, the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal relevant evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. The claim
must be dismissed if there are insufficient factual allegations to raise a right
to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is
apparent from the face of the complaint that there is an insuperable bar to
relief, Jones v. Bock, 549 U.S. 199, 215 (2007).

III. DISCUSSION
Plaintiff asserts claims of age and race discrimination in employment. 11
The Court liberally construes plaintiff’s pro se complaint. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). But, “regardless of whether the plaintiff is
proceeding pro se or is represented by counsel, conclusory allegations or

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R. Doc. 1.
3

legal conclusions masquerading as factual conclusions will not suffice to
prevent a motion to dismiss.” Taylor v. Books a Million, Inc., 296 F.3d 376,
378 (5th Cir. 2002) (internal citation and quotation marks omitted).
Racial discrimination in employment is prohibited by 42 U.S.C. § 1981
and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. Race
discrimination claims under both statutes are subject to the same
substantive legal standards and differ only in their statutes of limitations and
administrative exhaustion requirements. See Jones v. Robinson Prop. Grp.,
LP, 427 F.3d 987, 992 (5th Cir. 2005); see also Thompson v. City of Waco,
764 F.3d 500, 503 (5th Cir. 2014); Mendoza v. Helicopter, 548 F. App’x 127,
128 (5th Cir. 2013).
A complaint need not allege facts establishing each element of a prima
facie case of employment discrimination to survive a motion to dismiss. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). But the complaint
must allege sufficient facts to indicate that “defendant took the adverse
employment action against a plaintiff because of [his] protected status.” Raj
v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (internal citation and
quotation marks omitted). Here, the complaint does not state that plaintiff
was fired or suffered any other adverse employment action. Further, plaintiff

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alleges no facts to suggest that any adverse employment act was taken
because of his race.
Age discrimination in employment is prohibited by the Age
Discrimination in Employment Act (ADEA). The ADEA makes it unlawful
for an employer “to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA applies only to
individuals who are at least 40 years old. See 29 U.S.C. § 631; see also Gen.
Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 591 (2004). Plaintiff’s
complaint fails to allege that he is older than 40 or that he suffered an adverse
employment action. Nor does the complaint indicate that an adverse action
was taken because of plaintiff’s age.
Because plaintiff fails to state a plausible claim of race or age
discrimination, his complaint must be dismissed. Plaintiff’s opposition to
the motion to dismiss includes no legal arguments, and instead presents new
factual allegations.12

For instance, plaintiff’s opposition asserts that

Thompson stated “that he wants Thoroughbreds on his team, not any 40 and
50 year old. Thompson made it clear that he want[s] younger Managers on

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R. Doc. 5.
5

his team.” 13 The Court liberally construes plaintiff’s opposition as a request
to amend his complaint. See Riley v. Sch. Bd. Union Par., 379 F. App’x 335,
341 (5th Cir. 2010); Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989
n.2 (5th Cir. 2008); Cash v. Jefferson Assocs., Inc., 978 F.2d 217, 218 (5th
Cir. 1992).
The Court will “freely give leave [to amend] when justice so requires.”
Fed. R. Civ. P. 15(a). The Supreme Court has held that “[i]f the underlying
facts or circumstances relied upon by a plaintiff may be a proper subject of
relief, he ought to be afforded an opportunity to test his claim on the merits.”
Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend, however, “is by
no means automatic.” Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir.
1994). The Court considers multiple factors, including “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [and] futility of
amendment.” Foman, 371 U.S. at 182.
Here, plaintiff has not previously amended his complaint, and the
Court finds no evidence of undue delay, bad faith, or dilatory motive. Nor is

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Id. at 1.
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it clear that amendment would be futile. The Court therefore grants leave to
amend.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to

dismiss.

Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE.

Plaintiff has 21 days to amend his complaint. Failure to timely amend will
result in dismissal of the complaint with prejudice.

22nd
New Orleans, Louisiana, this _____ day of January, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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