Garay v. Lowes Home Centers, LLC
OPINION AND ORDER: Defendants Motion to Dismiss 14 , is granted and plaintiffs second claim for relief is dismissed. Defendant is directed to file an answer to the remaining claim in the Second Amended Complaint by December 3, 2017. Should Plaintiff learn of additional facts to support a claim for age discrimination based on disparate impact, the Court will consider a properly supported motion to amend the complaint. Signed on 11/14/2017 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civ. No. 1:17-cv-00269-MC
OPINION & ORDER
LOWES HOME CENTERS, LLC,
McSHANE, District Judge.
This matter comes before the Court on Defendant Lowes Home Centers, LCC
(“Lowes”)’s Motion to Dismiss Plaintiff’s second claim for relief. ECF No. 14. For the reasons
discussed below, the motion is GRANTED.
Plaintiff Nancy Garay (“Garay”) was employed by Lowes for more than 16 years, most
recently as a Facilities Service Associate (“FSA”). On May 9, 2016, Garay was terminated,
apparently for using her accrued sick days. Garay was 55 years old at the time of her termination
and she was replaced as FSA by a younger employee.
The Second Amended Complaint (“SAC”) alleges that Lowes has “terminated several
workers over the age of 40 without valid reasons or for bogus events which [Lowes] has created
to justify termination.” Garay claims that Lowes has “acted upon a policy which encourages
discrimination against older workers in that they have systematically been harassing to the point
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that employees quit or firing employees who have been with the company for more than ten
years,” and this policy is aimed at “keeping a younger workforce.”
The SAC alleges that in the three years preceding Garay’s termination and in the year
following, Lowes’s policies have resulted in “at least 15 employees over the age of 40 being
terminated or being forced to quit without sufficient justification.”
Garay claims that the
terminations have been “in far greater proportion for those over age 40 than they have been to
those who are under age 40.”
On June 2, 2017, the Court dismissed Garay’s second claim for relief with leave to
amend. ECF No. 12. Garay filed her SAC on July 2, 2017, and this motion followed.
Where a plaintiff “fail[s] to state a claim upon which relief can be granted,” the court
must dismiss the action. Fed. R. Civ. P. 12(b)(6). In order to state a viable claim, a plaintiff
must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). This
means a complaint must contain “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
(internal quotation marks and citation omitted). The complaint must contain “well-pleaded
facts” which “permit the court to infer more than the mere possibility of misconduct.” Id. at 679.
For purposes of a motion to dismiss, the complaint is liberally construed in favor of the
plaintiff and its allegations taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983).
Bare assertions, however, that amount to nothing more than a “formulaic recitation of the
elements” of a claim “are conclusory and not entitled to be assumed true.” Iqbal, 556 U.S. at
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As a preliminary matter, Garay’s Response in Opposition to Lowes’s Motion to Dismiss
was not timely filed. See LR 7-1(e) (“A party must file and serve any response within 14 days
after service of the motion.”). The Local Rules provide that failure to timely file a response
constitutes a waiver of oral argument on the motion.
Garay provides no
explanation for her late Response and Lowes urges the Court to disregard the untimely filing.
The Court has opted to resolve this motion on the merits, but Garay is warned that all future
filings should be submitted within the timeframe provided by the Local Rules.
Garay’s second claim for relief alleges age discrimination based on disparate impact. 1 A
disparate impact claim challenges “employment practices that are facially neutral in their
treatment of different groups but that in fact fall more harshly on one group than another and
cannot be justified by business necessity.” Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th
Cir. 2003) (internal quotation marks and citation omitted). In order to state a claim for age
discrimination based on disparate impact, a plaintiff must show “(1) the occurrence of certain
outwardly neutral employment practices, and (2) a significantly adverse or disproportionate
impact on persons of a particular [age] produced by the employer’s facially neutral acts or
practices.” Id. (internal quotation marks and citation omitted).
Like the First Amended Complaint, the SAC suggests that it brings this claim pursuant to ORS 659A.030, rather
than the Age Discrimination Employment Act, 29 U.S.C. § 633a(a). ORS 659A.030(1)(a) prohibits employers from
discriminating against employees because of “age if the individual is 18 years of age or older.” The Oregon Court
of Appeals has mentioned in dicta that “a disparate impact case may be made out by showing that a facially neutral
policy or criterion has a disproportionately negative impact on a protected class[.]” Christianson v. State, 239 Or.
App. 451, 457-58 (2010) (contrasting disparate impact and disparate treatment claims.), but it is unclear whether an
age discrimination claim based on disparate impact is cognizable under Oregon law. Doyle v. City of Medford, 256
Or. App. 625, 645-647 (2013) (so noting) rev’d on other grounds 356 Or. 336 (2014). Ultimately, it does not
appear that the distinction will be outcome determinative for purposes of this motion because the standard discussed
in Christianson is essentially the same as the standard in Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir.
2003), and Garay has again failed to state a claim under either formulation. As with the previous Motion to Dismiss,
Garay’s Response confines itself to discussion of cases involving age discrimination under the ADEA and makes no
argument as the existence of a state law cause of action for age discrimination based on disparate impact.
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“A disparate impact claim must challenge a specific business practice.” Pottenger, 329
F.3d at 749. “[I]t is not enough to simply allege that there is a disparate impact on workers, or
point to a generalized policy that leads to such an impact . . . [r]ather, the employee is
responsible for isolating and identifying the specific employment practices that are allegedly
responsible for any observed statistical discrepancies.” Smith v. City of Jackson, 544 U.S. 228,
241 (2005) (internal quotation marks and citation omitted, emphasis in original). Identifying the
specific practice in age discrimination cases alleging disparate impact “is not a trivial burden.”
Stockwell v. City and Cnty. of San Francisco, 749 F.3d 1107, 1114 (9th Cir. 2014). “The
plaintiff must also demonstrate a causal connection between those specific employment practices
and the asserted impact on those of a particular age.” Id. The standards for a disparate impact
claim are exacting: “A disparate impact plaintiff must not merely prove circumstances raising an
inference of discriminatory impact; he must prove the discriminatory impact at issue.” Palmer v.
United States, 794 F.2d 534, 536-37 (9th Cir. 1986).
In this case, as with the First Amended Complaint (“FAC”), Garay does not sufficiently
allege that the age discrimination is based on a specific business practice. Garay claims that
Lowes “acted upon a policy which encourages discrimination against older workers in that they
have systematically been harassing to the point that employees quit or firing employees who
have been with the company for more than ten years.” A disparate impact plaintiff must also
show “that he was subject to the particular employment practice with the alleged disparate
impact.” Pottenger, 329 F.3d at 749-50. As Lowes points out, Garay alleges that she was
terminated and so a policy of harassment aimed at causing employees to quit would not be
relevant to her claim. 2 The SAC provides no other facts about a policy of terminating older
The SAC is inconsistent as to whether there is a single policy or multiple policies in place. Nor does the SAC
clearly allege a facially neutral policy. On the contrary, Garay alleges that Lowes had a policy of “systematic
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employees or its implementation. For instance, of the fifteen older employees alleged to have
left the company as a result of Lowes’s policy, the SAC does not allege how many quit, as
opposed to how many were fired.
Furthermore, Garay does not allege sufficient facts to support her claim that the
challenged policy disproportionately impacts employees of a particular age. “A plaintiff in a
disparate impact case uses statistical evidence to show that a facially neutral policy produces a
‘significantly discriminatory pattern’ based on a protected characteristic. Richardson v. Nw.
Christian Univ., 242 F. Supp.3d 1132, 1147 (D. Or. 2017) (quoting Sakellar v. Lockheed
Missiles & Space Co., 765 F.2d 1453, 1456 (9th Cir. 1985)). While it would be premature to
require detailed statistical evidence at the pleading stage, Garay must still provide some wellpleaded facts to support her claim. See, e.g., Adams v. City of Indianapolis, 742 F.3d 720, 733
(7th Cir. 2014) (a disparate impact claim is properly dismissed at the pleading state when it lacks
“basic allegations” regarding statistical methods and comparison, or “any other factual material
to move the disparate-impact claim over the plausibility threshold.”). Here, the SAC alleges that
at least fifteen workers over the age of forty have been terminated or driven to quit over the
course of four years as a result of Lowes’s policies, but provides only the conclusory allegation
that the policy-driven terminations have fallen more heavily on older workers. The SAC does
not allege how many people are employed by Lowes, how many total people have quit or been
fired over the same four-year period, the ages of those who quit or were fired, or any other
information that would allow the Court to reasonably connect those fifteen terminations to the
alleged policy or policies. In her Response, Garay appears to admit that she does not know how
harassment” that was “aimed at keeping a younger workforce.” This suggests a policy of intentional discrimination
and disparate treatment, not disparate impact resulting from a facially neutral policy. See Palmer v. United States,
794 F.2d 534, 536-37 (9th Cir. 1986) (contrasting claims for disparate treatment and disparate impact). At least one
Circuit Court has held that “analysis under disparate impact is not appropriate where plaintiff claims injury based on
a facially discriminatory policy.” Healy v. Southwood Psychiatric Hosp., 78 F.3d 128, 131 (3d Cir. 1996).
Page 5 – OPINION & ORDER
many employees have been fired and offers no support for her claim that the “vast majority” of
terminated employees have been over the age of forty. 3 As previously noted, Iqbal and Twombly
require that a complaint provide enough factual content to allow the court to do more than infer
the “mere possibility” of misconduct by a defendant. The SAC simply does not meet this
Finally, as with the FAC, Garay fails to allege a causal connection between the policy
and discrimination against employees of a certain age, other than to re-assert that there is a “clear
nexus” between a policy terminating employees who have been with the company for more than
ten years and a disparate impact on older workers. As the Court has previously explained, an
employee’s age is “analytically distinct from his years of service.” Hazen Paper Co. v. Biggins,
507 U.S. 604, 611 (1993) (addressing a disparate treatment claim under the ADEA); see also
Jianqing Wu v. Special Counsel, Inc., 54 F. Supp.3d 48, 55 (D. D.C. 2014) (addressing a
disparate impact claim and concluding that “age and experience in the field are not logical
equivalents,”). As the Court noted in its previous Order, a younger employee might easily have
more seniority with the company than a newly-hired older employee and so a policy involving
long-term employees does not automatically implicate a disparate impact on employees over
The allegations contained in the SAC cannot sustain a claim for age discrimination based
on disparate impact.
Garay’s Response is not internally consistent on this point. Pl. Resp. 3 (“Without discovery, Plaintiff has no way
of knowing how many employees have been fired over the same time period, but believes that the practice of the
employer has a much greater impact on older workers as the younger workers are not experiencing the same type of
discrimination.”) and 5 (“The vast majority of employees this policy has impacted are over the age of 40.”).
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It is clear from Plaintiff’s Response that she lacks sufficient facts to state a plausible
claim for age discrimination based on disparate impact at this time and that permitting further
amendment would be futile. Accordingly, Defendant’s Motion to Dismiss, ECF No. 14, is
GRANTED and Plaintiff’s second claim for relief is DISMISSED. Defendant is directed to file
an answer to the remaining claim in the Second Amended Complaint by December 3, 2017.
Should Plaintiff learn of additional facts to support a claim for age discrimination based on
disparate impact, the Court will consider a properly supported motion to amend the complaint.
It is so ORDERED and DATED this
day of November, 2017.
s/Michael J. McShane
United States District Judge
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