Gennette v. CCA of Tennessee, LLC

Filing 29

OPINION & ORDER by Magistrate Judge Kimberly E. West denying 17 Motion for Partial Dismissal. (sjw, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOSEPH R. GENNETTE,
Plaintiff,
v.
CCA OF TENNESSEE, LLC,
Defendant.

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Case No. CIV-13-001-KEW

OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for
Partial Dismissal of Plaintiff’s First Amended Complaint filed
February 18, 2013 (Docket Entry #17). Plaintiff Joseph R. Gennette
(“Gennette”) initiated this action on January 2, 2013, alleging
Defendant CCA of Tennessee, LLC (“CCA”) terminated his employment
in

violation

of

the

Americans

with

Disabilities

Act,

Age

Discrimination in Employment Act (“ADEA”), and Oklahoma’s AntiDiscrimination Act.

Gennette filed an Amended Complaint setting

forth further factual detail on February 4, 2013.
Through the pending Motion, CCA contends Gennette’s ADEA claim
fails to meet the plausibility standard enunciated in United States
Supreme Court cases of Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Clearly, Bell

Atlantic changed the legal analysis applicable to dismissal motions
filed under Fed. R. Civ. P. 12(b)(6), creating a “refined standard”
on such motions.

Khalik v. United Airlines, 671 F.3d 1188, 1191

(10th Cir. 2012)(citation omitted).

Bell Atlantic stands for the

summarized proposition that “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim for relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) quoting Bell
Atlantic, 550 U.S. at 570.

The Supreme Court did not parse words

when it stated in relation to the previous standard that “a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief”
is “best forgotten as an incomplete, negative gloss on an accepted
pleading standard.”

Bell Atlantic,

550 U.S. at 546.

The Tenth Circuit has interpreted the plausibility standard as
referring “to the scope of the allegations in the 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).

The Bell Atlantic

case, however, did not intend the end of the more lenient pleading
requirements of Fed. R. Civ. P. 8(a)(2). Khalik, 671 F.3d at 1191.
Rather, in Khalik, the Tenth Circuit recognized the United States
Supreme Court’s continued endorsement of Rule 8's “short and plain
statement” requirement in the case of Erickson v. Pardus, 551 U.S.
89 (2007) wherein the Supreme Court found “[s]pecific facts are not
necessary; the statement need only ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.’”
Id. at 93.

It is against this backdrop that the sufficiency of

Gennette’s Amended Complaint is evaluated.
With regard to his ADEA claim, Gennette alleges in the Amended
2

Complaint that he (1) is more than 40 years of age; (2)

began

employment with CCA as a correctional officer on or about January
21, 2003, arriving at the Davis Correctional Facility in August of
2011 as a unit manager; (3) was told by Chief of Security Craig
Frappiea “something to the effect that he ‘did not care for
[Plaintiff’s] age or ability”; (4) was informed on or about July
25, 2012 that he was being terminated for insubordination after an
altercation with Chief Frappiea; (5) believes Chief Frappiea “was
closely

involved

in

all

decisions

regarding

Plaintiff’s

termination”; (6) filed an administrative grievance but that the
termination was upheld by Warden Tim Wilkinson; (7) pursued a peer
review of his termination but that the termination was again
upheld; and (8) “has been informed that following his termination,
his position was filled by a younger worker.”
CCA contends Gennette is pursuing a “cat’s paw” theory of age
discrimination.

Under this theory, a supervisor who performs an

act motivated by improper animus toward an employee that is
intended by the supervisor to cause an adverse employment action,
and if that act is a proximate cause of the ultimate employment
action, then the employer is liable under the appropriate antidiscriminatory statute.
1194

(2011)(applying

action).

Straub v. Proctor Hosp., 131 S.Ct. 1186,

the

“cat’s

paw”

theory

to

USERRA

based

The Tenth Circuit has determined that the “cat’s paw”

theory is not available in ADEA cases since “the ADEA’s text does
not provide that a plaintiff may establish discrimination by
showing that age was simply a motivating factor, the operative
3

phrase relied upon in Straub. . . .

A plaintiff alleging age

discrimination must instead prove age was a “but for” cause of her
termination. . . .”

Simmons v. Sykes Enterprises, Inc., 647 F.3d

943, 949 (10th Cir. 2011).
This Court agrees with CCA that if Warden Wilkinson was the
sole decision maker as to Gennette’s continued employment, the
allegations of Chief Frappiea’s alleged age-based animus would be
insufficient to state a plausible claim against CCA.

However,

Gennette states in the Amended Complaint that he believes “Chief
Frappiea

was

closely

involved

in

all

decisions

regarding

Plaintiff’s termination” and that Warden Wilkinson “upheld” his
termination, suggesting that Chief Frappiea was a decision maker
and Warden Wilkinson served in a review capacity only.

This

allegation is sufficient for Gennette’s ADEA claim to survive at
this juncture of the proceedings, until such time as the facts
surrounding

who

served

as

the

decision

maker

in

Gennette’s

termination are determined.
IT IS THEREFORE ORDERED that Defendant’s Motion for Partial
Dismissal of Plaintiff’s First Amended Complaint filed February 18,
2013 (Docket Entry #17) is hereby DENIED.
IT IS SO ORDERED this 10th day of June, 2013.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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