Kilcrease v. United States Department of Agriculture et al
Filing
8
ORDER denying 6 Motion to Dismiss. Signed by Honorable David C. Bramlette, III on August 6, 2018 (JBR)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ORLANDO KILCREASE
PLAINTIFF
V.
NO. 5:18-CV-34-DCB-MTP
UNITED STATES DEPARTMENT OF AGRICULTURE,
SONNY PERDUE, and STEVEN PETERSON
DEFENDANTS
ORDER AND OPINION
The United States Department of Agriculture, Secretary of
Agriculture
Sonny
Perdue,
and
Farm
Service
Agency
Acting
Administrator Steven Peterson move the Court to dismiss Orlando
Kilcrease’s complaint for failure to state a claim. For the reasons
that follow, the motion is DENIED.
Background
This employment-discrimination dispute arises from the United
States Department of Agriculture’s decision not to hire Orlando
Kilcrease to fill a loan specialist position.
Kilcrease is a 51 year-old African-American male and a 17year veteran of the United States Department of Agriculture Farm
Service Agency. (Doc. 1, ¶¶ 3, 8). For a time, Kilcrease served as
the
chairman
of
the
Mississippi
Farm
Service
Agency
State
Committee. (Doc. 1, ¶ 8).
In March 2016, the United States Department of Agriculture
Farm Service Agency posted an opening for a loan specialist
position. (Doc. 1, ¶ 10). Kilcrease applied for the position. (Doc.
1, ¶ 10).
A five-member interview panel reviewed applications for the
position. (Doc. 1, ¶ 12). Each member of the panel was white and
between the ages of 43 and 62. (Doc. 1, ¶ 12). The panel recommended
four white applicants for the position, two of whom were less than
40 years old. (Doc. 1, ¶ 13). Kilcrease sued, alleging race and
age discrimination. (Doc. 1).
The United States Department of Agriculture, Perdue, and
Peterson now move the Court to dismiss Kilcrease’s complaint under
Federal Rule of Civil Procedure 12(b)(6). (Doc. 6). They argue
that Kilcrease’s complaint fails to allege plausible claims for
race- and age-based discrimination because the complaint lacks
factual allegations linking Kilcrease’s race or age to the United
States Department of Agriculture’s decision not to hire him. (Doc.
7, p. 3).
Defendants’ motion is untimely: Defendants moved to dismiss
seven days after answering Kilcrease’s complaint. (Docs. 3, 6). So
the Court construes the motion as a Federal Rule of Civil Procedure
2
12(c) motion for judgment on the pleadings. See, e.g., Yakovets v.
Bailin, Civ. A. No. JKB-13-3439, 2014 WL 279697, at *1 (D. Md.
Jan. 23, 2014); Jenkins v. Allied Interstate, Inc., Civ. A. No.
5:08-CV-125-DCK, 2009 WL 3157399, at *2 (W.D. N.C. Sept. 28, 2009);
Bennerson v. City of New York, Civ. A. No. 10182-RWS, 2004 WL
902166, at *3 (S.D.N.Y. Apr. 28, 2004). Defendants’ failure to
timely file a Rule 12(b) motion is inconsequential because the
Rule 12(c) and Rule 12(b)(6) standards are the same. Great Plains
Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 318
n.8 (5th Cir. 2002).
Kilcrease did not respond to Defendants’ motion. See L. U.
CIV. R. 7(b)(4).1
I
To
overcome
Defendants’
motion,
Kilcrease
must
allege
a
plausible claim for relief. Romero v. City of Grapevine, Tex., 888
F.3d 170, 176 (5th Cir. 2018) (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). A claim is plausible if it is pleaded with
factual content that allows the Court to reasonably infer that
Defendants are liable for the misconduct alleged. Edionwe v.
Local Uniform Civil Rule 7(b)(4) provides that “[c]ounsel for respondent
must, within fourteen days after service of movant’s motion and memorandum
brief, file a response and memorandum brief in support of the response.”
1
3
Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (citing Iqbal, 556 U.S.
at 678).
In
ruling
on
Defendants’
motion,
the
Court
accepts
the
complaint’s well-pleaded facts as true and views them in the light
most favorable to Kilcrease. Midwest Feeders, Inc. v. Bank of
Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
II
Kilcrease attempts to allege claims for race- and age-based
discrimination
Agriculture,
against
Secretary
the
of
United
Agriculture
States
Sonny
Department
Perdue,
and
of
Farm
Service Agency Acting Administrator Steven Peterson.2 The Court
addresses each claim in turn.
A
Title VII of the Civil Rights Act of 1964 prohibits a federal
agency from discriminating against a job applicant based on his
race. 42 U.S.C. § 2000e-16.
To plead a plausible racial-discrimination claim, Kilcrease
must allege facts that allow the Court to reasonably infer that
Defendants discriminated against him based on his race. 42 U.S.C.
§ 2000e-16; Edionwe, 860 F.3d at 291. But he need not plead each
2
Kilcrease sued Perdue and Peterson in their official capacities.
4
element of his prima facie case. Swierkiewicsz v. Sorema N.A., 534
U.S. 506, 511 (2002).3
Kilcrease
recommended
alleges
four
white
that
an
applicants
all-white
to
fill
interview
a
loan
panel
specialist
position for which Kilcrease had been rated “best qualified.”
Because Kilcrease was rated “best qualified,” it follows that the
white
applicants
the
interview
panel
recommended
were
either
equally or less qualified. Viewed in Kilcrease’s favor, these
allegations allow the Court to reasonably infer that the reason
the all-white interview panel recommended four white applicants of
equal or inferior qualifications was “based on” Kilcrease’s race.
See 42 U.S.C. § 2000e-16.
To be clear, the allegation that an all-white decision-making
body recommended four white applicants over Kilcrease is not,
standing
alone,
sufficient
to
state
a
plausible
racial-
discrimination claim. The salient allegation is that Kilcrease was
rated “best qualified” for the position. That allegation negates
a non-discriminatory inference the Court could otherwise draw from
the interview panel’s hiring decision: That Kilcrease was passed
over because he was less qualified than his white co-applicants.
Swierkiewicsz was decided before Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), but remains good
law. See, e.g., Gordon v. United States Capitol Police, 778 F.3d 158, 162 (D.C.
Cir. 2015) (observing that Twombly reaffirmed Swierkiewicsz); Rodriguez-Reyez
v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013) (collecting cases).
3
5
Because
discrimination
Kilcrease
claim,
has
the
pleaded
Court
a
DENIES
plausible
Defendants’
racialmotion
to
dismiss the claim.
B
The federal-sector provision of the Age Discrimination in
Employment Act
prohibits federal agencies from discriminating
against a job applicant who is at least 40 years old based on his
age. 29 U.S.C. § 633(a).
Kilcrease need not allege each element of a prima facie case
of age discrimination to defeat Defendants’ Rule 12(b)(6) motion.
Swierkiewicz,
405
U.S.
at
510;
Haskett
v.
Continental
Land
Resources, L.L.C., 668 F. App’x 133, 134 (5th Cir. Aug. 23, 2016)
(per curiam) (unpublished). But the elements do guide the Court’s
analysis. Flores v. Select Energy Services, L.L.C., 486 F. App’x
429, 432 (5th Cir. Aug. 16, 2012) (per curiam) (unpublished).
To prove a prima facie case of age discrimination, Kilcrease
must show (1) Defendants failed to hire him; (2) he was qualified
for the loan specialist position; (3) he was within the protected
class (age 40 or over) at the time; and (4) a younger person was
hired. Haas v. ADVO Systems, Inc., 168 F.3d 732, 733 (5th Cir.
1999).
Kilcrease’s complaint alleges (1) the interview panel did not
recommend him for the loan specialist position (Doc. 1, ¶ 13); (2)
6
he was rated “best qualified” for the loan specialist position
(Doc. 1, ¶ 11); (3) he was over age 40 at the time (Doc. 1, ¶ 8);
and (4) two of the four applicants recommended were below age 40
(Doc. 1, ¶ 13). Viewed in Kilcrease’s favor, these allegations
suffice to state a claim for age discrimination. See Leal v.
McHugh, 731 F.3d 405, 413 (5th Cir. 2013) (reversing district
court’s Rule 12(b)(6) dismissal of age-discrimination plaintiff’s
complaint and observing that the plaintiff’s “admittedly bare
allegations
sufficiently
state
a
plausible
claim
for
age
discrimination.”).
Because Kilcrease has pleaded a plausible age-discrimination
claim, the Court DENIES Defendants’ motion to dismiss the claim.
III
Kilcrease’s
complaint
is
not
the
most
detailed.
But
it
contains allegations which, viewed in Kilcrease’s favor, suffice
to state plausible claims for race and age discrimination.
Accordingly,
IT IS ORDERED that Defendants’ motion (Doc. 6) to dismiss
Kilcrease’s complaint is DENIED.
SO ORDERED, this the 6th day of August, 2018.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE
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