McPherson v. Donahoe

Filing 19

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion to Dismiss Plaintiffs First Amended Complaint, [Doc. No. 16 ,] is GRANTED. IT IS FURTHER ORDERED that this matter is dismissed. Signed by District Judge Henry Edward Autrey on 9/19/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DOUGLAS McPHERSON,

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Plaintiff,
vs.
MEGAN J. BRENNAN,1
Defendant.

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s
First Amended Complaint, [Doc. No. 16]. Plaintiff has not responded to the
Motion. For the reasons set forth below, the motion is granted.
Introduction
Plaintiff filed this action against Defendant alleging violations of the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (ADEA) and Section
706(8), 791, 793-794(a) of the Rehabilitation Act, 29 U.S.C. § 794, et seq.
Plaintiff’s original Complaint was dismissed on December 21, 2015 for failure to
state a cause of action. The Court allowed Plaintiff to file an Amended Complaint.
Plaintiff filed an Amended Complaint on January 5, 2016. Essentially, Plaintiff

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Pursuant to Federal Rule of civil Procedure 25(d), Megan J. Brennan is substituted as the proper Defendant in this
matter. Ms. Brennan became the Postmaster General of the United States on February 1, 2015.

claims that Defendant has failed to hire him for the position of Criminal
Investigator based on his age and disability
Facts and Background2
Plaintiff’s Amended Complaint alleges the following facts and background:
Plaintiff was employed as a detective with the St. Louis, Missouri Police
Department. The United State Postal Service Office of Inspector General issued

a Job Announcement for a Criminal Investigator with a closing date of July 31,
2012. Plaintiff applied for this position on July 19, 2012. The minimum
requirements for the position included a “current 1811 classification.” Plaintiff
did not have a current 1811 classification. Plaintiff was not selected for the job,
and filed an EEO claim alleging age discrimination regarding his failure to be
hired for this position. After an investigation, the EEO office for the USPS
issued a Final Agency Decision on October 7, 2014 finding that the evidence
did not support a finding that Plaintiff was subjected to discrimination as
alleged. On January 5, 2015, 2015, Plaintiff filed this action.
Defendant moves to dismiss the Amended Complaint for failure to state a
cause of action, and lack of subject matter jurisdiction.
Discussion
The recitation of facts is taken from Plaintiff’s Complaint and is set forth for the purposes of the
pending motion to dismiss. The recitation does not relieve any party of the necessary proof of
any stated fact in future proceedings.
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Failure to State a Claim
The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal
sufficiency of a complaint so as to eliminate those actions “which are fatally
flawed in their legal premises and designed to fail, thereby sparing litigants the
burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244
F.3d 623, 627 (8th Cir.2001) quoting Neitzke v. Williams, 490 U.S. 319, 326–27,
109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A complaint must be dismissed for
failure to state a claim upon which relief can be granted if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 570 (2007)(abrogating the prior “no set of facts”
standard set forth in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957)). Courts “do not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.” Id., 550 U.S. at
555. A complaint must set forth factual allegations which are enough to “raise a
right to relief above the speculative level.” Id. However, where a court can infer
from those factual allegations no more than a “mere possibility of misconduct”, the
complaint must be dismissed. Cole v. Homier Distributing Co., Inc., 599 F.3d 856,
861 (8th Cir.2010)(citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868.1950 (2009)).

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In passing on a motion to dismiss, a court must view the allegations of the
complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S.
232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Kottschade v. City of Rochester, 319
F.3d 1038, 1040 (8th Cir.2003). While a complaint challenged by a Rule 12(b)(6)
motion does not need detailed factual allegations, a plaintiff must still provide the
grounds for relief, and neither “labels and conclusions” nor “a formulaic recitation
of the elements of a cause of action” will suffice. Twombly, 550 U.S. at 555.
(internal citations omitted). “Although the pleading standard is liberal, the plaintiff
must allege facts—not mere legal conclusions—that, if true, would support the
existence of the claimed torts.” Moses.com Securities v. Comprehensive Software
Systems, Inc., 406 F.3d 1052, 1062 (8th Cir.2005) citing Schaller Tel. Co. v.
Golden Sky Systems, 298 F.3d 736, 740 (8th Cir.2002). In viewing the complaint in
the light most favorable to the plaintiff, the court should not dismiss it merely
because the court doubts that the plaintiff will be able to prove all of the necessary
allegations. Bennett v. Berg, 685 F.2d 1053, 1058 (8th Cir.1982). The primary
issue for a court to consider is not whether the plaintiff will ultimately prevail in
the lawsuit, but whether the complaint adequately states a claim; and therefore, the
plaintiff is entitled to present evidence in support of that claim. A complaint may
not be dismissed based upon a district court's assessment that the plaintiff will fail
to present evidentiary support for the complaint's allegations or will ultimately fail
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to prove one or more claims to the satisfaction of the factfinder. Twombly, 550
U.S. at 556; Neitzke v. Williams, 490 U.S. at 327 (“What Rule 12(b)(6) does not
countenance are dismissals based upon a judge's disbelief of a complaint's factual
allegations.”). However, “[w]here the allegations show on the face of the
complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is
appropriate.” Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008).
Further, courts “‘are not bound to accept as true a legal conclusion couched as a
factual allegation.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d
868.1950 (2009)(quoting Twombly, 550 U.S. at 555). When considering a motion
to dismiss, a court can “begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.” Ashcroft v.
Iqbal, 129 S.Ct. at 1950. Legal conclusions must be supported by factual
allegations to survive a motion to dismiss. Id. With this plausibility standard in
mind, this Court turns to an examination of the plaintiff's complaint.
The ADEA prohibits discrimination against employees, age 40 and over,
because of their age. 29 U.S.C. § 623(a)(1), 631(a). When, as here, a plaintiff
relies on circumstantial rather than direct evidence of age discrimination, the case
is considered under the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Tusing v. Des
Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir.2011) (upholding the
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continued applicability of McDonnell Douglas after Gross v. FBL Fin. Servs., Inc.,
––– U.S. ––––, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)); Haigh v. Gelita USA,
Inc., 632 F.3d 464, 468 (8th Cir.2011) (applying McDonnell Douglas, after Gross,
in ADEA claim based on circumstantial evidence). In order to state a prima facie
case of age discrimination, a plaintiff must show that (1) he is over 40 years old,
(2) he met the applicable job qualifications, (3) he was not hired for the position,
and (4) a similarly situated younger individual was hired. Onyiah v. St. Cloud
State Univ. 684 F.3d 711, 719 (8th Cir. 2012).
Plaintiff’s Amended Complaint, again clearly fails to set forth that he was
qualified for the position, through the admission that he did not have the 1811
classification, since it was a “minimum qualification” for the position for which
Plaintiff applied. Rather, Plaintiff argues within his Amended Complaint that the
Postal Service could not require the 1811 classification because the vacancy
announcement was publicized outside the agency and no one outside the agency
could have the 1811 classification. Such argument fails to satisfy the requirements
of Twombly and Iqbal. The Amended Complaint once again fails to set forth
enough of a factual basis to establish Plaintiff is entitled to relief.
Plaintiff’s Amended Complaint urges that he should have been given
preference for the position because of his veteran’s status. As Defendant correctly
argues, Plaintiff filed complaints the Veteran’s Employment and Training Service,
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and the Merit Systems Protection Board regarding the failure to hire vis a vis his
veteran status. Plaintiff did not pursue this avenue through an appeal in the Circuit
Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703(b)(1)(A) after the
agencies found no violations.
Conclusion
Defendant’s motion is well taken. The motion to dismiss will be granted.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Plaintiff’s
First Amended Complaint, [Doc. No. 16,] is GRANTED.
IT IS FURTHER ORDERED that this matter is dismissed.
Dated this 19th day of September, 2016.

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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