Lemieux v. The Boeing Company

Filing 23

ORDER adopting 15 Report and Recommendations re: granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim. Signed by the Honorable David C. Norton on March 27, 2024. (estr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
JAY D. LEMIEUX,
Plaintiff,
vs.
THE BOEING COMPANY,
Defendant.

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No. 2:23-cv-02631-DCN-TER
ORDER

This matter is before the court on Magistrate Judge Thomas E. Rodgers, III’s
report and recommendation (“R&R”), ECF No. 15, on defendant The Boeing Company’s
(“Boeing”) motion to dismiss, ECF No. 5. For the reasons set forth below, the court
adopts the R&R and grants in part and denies in part Boeing’s motion to dismiss.
I. BACKGROUND1
Jay Lemieux (“Lemieux”) brings this age discrimination case against Boeing, his
former employer. Lemieux is a Caucasian male over the age of forty. ECF No. 1,
Compl. ¶ 19. Boeing hired him to be a Process Analyst on January 5, 2008. Id. ¶ 20.
Throughout his time with Boeing, Lemieux was an exemplary employee who received
above average evaluations and who was promoted. Id. ¶¶ 21, 23, 27. However, Lemieux
eventually realized his supervisors at Boeing treated him differently from other
employees. Id. ¶¶ 24, 26. For instance, he personally witnessed his supervisor acting
“more favorably” toward a younger female employee. Id. ¶ 28.

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The court recites the factual background in the light most favorable to Lemieux.
See Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999).
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Lemieux began having trouble with his manager, Alan Soh (“Soh”), who
regularly yelled at Lemieux and informed him that he was a terrible employee. Id. ¶¶ 27,
32, 35. Lemieux reported the antagonism, and he claims Soh lowered his performance
evaluations as a result. Id. ¶ 27. Lemieux requested a transfer three times—once on May
1, 2019, then again in late 2020, and then again in early 2021—but none of these requests
were granted. Id. ¶¶ 25, 27, 29. Lemieux reported that the 2020 transfer request was
prompted by the problems he was having with his direct supervisor. Id. ¶ 27.
On March 19, 2021, Lemieux received a notice that he was being laid off as part
of a reduction in workforce (“RIF”). Id. ¶ 30. The RIF was apparently related to
Boeing’s outsourcing certain positions to another company, Dell. Id. ¶ 37. Lemieux
asserts that Soh intentionally altered his job title so that he would be included as one of
the employees laid off during the RIF, and he further claims that if any of his transfer
requests had been granted, he would not have been included in the RIF. Id. ¶¶ 31–32.
The only two employees Boeing laid off in Lemieux’s group were fifty-three and fiftyfive years old; while in contrast, Boeing continued to employ two other employees who
were thirty years old. Id. ¶ 33. Two weeks after being notified about the RIF, Boeing
required Lemieux to train the two younger employees who were to replace him. Id. ¶ 34.
Lemieux filed an ethics complaint on April 29, 2021. Id. ¶ 37. In his complaint,
Lemieux alleged that he was being targeted and discriminated against because of his age.
Id. He claimed that a different employee, Antwann Mitchell (“Mitchell”), informed him
that Soh was originally supposed to have laid off different employees during the RIF but
that he laid off Lemieux instead because of his age. Id. Lemieux further complained that
Boeing failed to properly handle or investigate these complaints. Id. ¶¶ 37, 45, 47.

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Lemieux’s final day working for Boeing was May 21, 2021. Id. ¶ 42. Two days after his
termination, Boeing “hired a person from Dell to fill [Lemieux’s] position.” Id. ¶ 43.
Lemieux filed a charge with the Equal Employment Opportunity Commission
(“EEOC”) on June 30, 2021, and the EEOC issued a notice of right to sue on March 29,
2023. Id. ¶¶ 11–12, 16. Lemieux then filed this lawsuit against Boeing on June 12, 2023.
ECF No. 1, Compl. He alleges three causes of action: (1) age discrimination in violation
of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; (2)
retaliation for complaints regarding age discrimination and hostile work environment;
and (3) hostile work environment.2 Id. Boeing moved to dismiss all three causes of
action on July 12, 2023. ECF No. 5. On August 5, 2023, Lemieux responded in
opposition, ECF No. 10, to which Boeing replied on August 14, 2023, ECF No. 11. On
December 20, 2023, the magistrate judge issued his R&R, in which he recommended that
Boeing’s motion be denied with respect to Lemieux’s first cause of action but granted
with respect to Lemieux’s second and third causes of action. ECF No. 15, R&R.
Lemieux objected to the R&R on December 30, 2023, ECF No. 16, and Boeing objected
on January 3, 2024, ECF No. 17. Thereafter, Lemieux replied to Boeing’s objection on
January 9, 2024, ECF No. 19, and Boeing replied to Lemieux’s objection on January 16,
2024, ECF No. 21. As such, this matter is fully briefed and ripe for the court’s review.

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Lemieux accuses Soh of creating a hostile work environment in both his second
and third causes of action. Compl. ¶¶ 68–94. Through his second cause of action,
Lemieux accuses Soh of creating a hostile work environment in retaliation for Lemieux’s
ethics complaints. See id. ¶ 78. Whereas, through his third cause of action, he accuses
Soh of creating a hostile work environment because of his age. See id. ¶ 91.
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II. STANDARDS
A. Order on R&R
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
§ 636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber, 423
U.S. 261, 270–71 (1976). The court may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge . . . or recommit the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1). The court is
charged with making a de novo determination of any portion of the R&R to which a
specific objection is made. Id.
However, in the absence of a timely filed, specific objection, the court reviews the
R&R only for clear error. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005) (citation omitted). Furthermore, “[a] party’s general objections are
not sufficient to challenge a magistrate judge’s findings.” Greene v. Quest Diagnostics
Clinical Lab’ys, Inc., 455 F. Supp. 2d 483, 488 (D.S.C. 2006) (citation omitted). When a
party’s objections are directed to strictly legal issues “and no factual issues are
challenged, de novo review of the record may be dispensed with.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982) (citation omitted). Analogously, de novo review is
unnecessary when a party makes general and conclusory objections without directing the
court’s attention to a specific error in a magistrate judge’s proposed findings. Id.

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B. Motion to Dismiss
A Rule 12(b)(6) motion for failure to state a claim upon which relief can be
granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6)
does not resolve contests surrounding the facts, the merits of a claim, or the applicability
of defenses.”). To be legally sufficient, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). A Rule 12(b)(6) motion should not be granted unless it appears certain that the
plaintiff can prove no set of facts that would support his claim and would entitle him to
relief. Mylan Lab’ys, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
When considering a Rule 12(b)(6) motion, the court should accept all wellpleaded allegations as true and should view the complaint in a light most favorable to the
plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan Lab’ys, 7 F.3d
at 1134. “To survive a motion to dismiss, a complaint must contain 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 has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Although the evaluation is generally limited to a review of the
allegations of the complaint itself, and documents attached to the complaint as exhibits, a
court may properly take judicial notice of matters of public record without converting a

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motion to dismiss into a motion for summary judgment.” Megaro v. McCollum, 66 F.4th
151, 157 (4th Cir. 2023).
III. DISCUSSION
The court will begin by reviewing Boeing’s objections to the magistrate judge’s
recommendations on Lemieux’s first cause of action. After that, the court will review
Lemieux’s objections to the magistrate judge’s recommendations on his second and third
causes of action.
A. First Cause of Action: Age Discrimination
Boeing objects to the magistrate judge’s recommendation that the motion to
dismiss should be denied as to Lemieux’s first cause of action for age discrimination.
ECF No. 17.
Under the ADEA, it is 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). To establish a claim of age discrimination, the
plaintiff must demonstrate that: “(1) at the time of h[is] firing, []he was at least 40 years
of age; (2) []he was qualified for the job and performing in accordance with h[is]
employer’s legitimate expectations; (3) h[is] employer nonetheless discharged h[im]; and
(4) a substantially younger individual with comparable qualifications replaced h[im].”
Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019).
In recommending that this claim not be dismissed, the magistrate judge explained
that Lemieux’s allegations that he was laid off while younger employees were retained
would be insufficient, by themselves, to plausibly allege that Lemieux was laid off

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because of his age. R&R at 5. However, Lemieux’s other allegations—e.g., that his
supervisor changed his job title so that he would be included in the layoff, that the only
other people laid off were fifty-three and fifty-five, and that he was replaced two days
later with younger employees—were sufficient to make a plausible claim for age
discrimination. Id.
Boeing raises two objections to the magistrate judge’s recommendation on this
claim. First, Boeing argues that the magistrate judge erred by relying upon three facts
from Lemieux’s complaint that Boeing argues are speculative and conclusory and that are
contradicted by other facts indicating an open and obvious, nondiscriminatory, reason for
the alleged unlawful practices. ECF No. 17 at 2–6. Second, Boeing argues that the
magistrate judge incorrectly applied the “motivating factor” standard as opposed to the
“but-for” standard for assessing whether Lemieux plausibly alleged he was discriminated
against because of his age. Id. at 6–9. The court will consider each objection in turn.
1. Facts Considered by the Magistrate Judge
The first fact Boeing argues that the magistrate judge erroneously relied upon is
Lemieux’s allegation that he was reclassified because of his age. ECF No. 17 at 2.
Boeing argues that this fact is nothing more than mere unsupported speculation and is
therefore conclusory. Id. at 3. It is true that allegations in employment discrimination
cases must be more than speculative to plausibly state a claim. See McCleary-Evans v.
Md. Dep’t of Transp., 780 F.3d 582, 585–86 (4th Cir. 2015). For instance, the Fourth
Circuit has held that a Black plaintiff’s allegation that a prospective employer’s “nonBlack decisionmakers hired non-Black applicants instead of the plaintiff [was] consistent
with discrimination, [but this allegation did] not alone support a reasonable inference that

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the decisionmakers [unlawfully discriminated against the plaintiff].” Id. at 586. In other
words, the court found that a plaintiff’s allegation that an employer’s decision was the
product of discriminatory animus was conclusory when the plaintiff’s hypothesizing was
unsupported by other allegations in the complaint. See id.
If the court were to consider Lemieux’s allegations about Boeing’s motivations in
a vacuum without reference to the rest of Lemieux’s complaint, the court might agree
with Boeing on its first objection. However, as the Fourth Circuit instructs in McClearyEvans, the court will only find Lemieux’s allegations of discriminatory bias are
speculatory if they are unsupported by Lemieux’s other factual assertions. See id.
Unlike in McCleary-Evans, Lemieux alleged more than just mere speculation of
discrimination. Notably, Lemieux alleges that another employee, Mitchell, was privy to a
conversation among a group of managers and that Mitchell “could confirm that [Lemieux
and another employee] were targeted by Soh because of age.” Compl. ¶ 37. Moreover,
Lemieux also alleges that, prior to his termination, he was treated less favorably than a
younger employee and that Boeing asked him to train the younger employees who
eventually replaced him. Id. ¶¶ 28, 34. These allegations, when taken together with the
others in Lemieux’s complaint, could give rise to the reasonable inference that Lemieux
was terminated because of his age. Cf. McCleary-Evans, 780 F.3d at 586. As such,
Lemieux’s claim is not merely speculative, and the magistrate judge did not err in
considering this allegation.
Boeing next argues that the magistrate judge erred when he relied on Lemieux’s
allegations that only two employees, both of whom were over the age of fifty, were
impacted by the RIF and his allegation that he was replaced by a younger employee.

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ECF No. 17 at 4. Boeing points to other places in Lemieux’s complaint indicating that
the reason for the RIF was because Boeing was outsourcing jobs to Dell. Id. Boeing
argues that another employee, who is alleged to have been thirty years old, was retained
in his position only because he was hired by Dell. Id. (citing Compl. ¶ 37). Thus, Boeing
argues that this younger employee was also affected by the RIF because his employment
with Boeing ended, and he now works for Dell. Id. This, according to Boeing, shows
that the RIF did not only impact employees over the age of fifty, as Lemieux claims, and
Lemieux cannot base his discrimination claim on his not being hired by Dell, a thirdparty provider. Id.
Lemieux’s complaint clearly states that only two people in his group were
included in the RIF and that both were over the age of fifty. Compl. ¶ 33. While the
complaint also indicates that Dell retained a thirty-year-old employee, the complaint is
unclear on whether the thirty-year-old was also included in the RIF, whether this other
employee was in a similar situation to Lemieux, or whether Boeing had some role or say
in ensuring this employee kept his job. See id. ¶ 37; see also id. ¶ 33 (“The Defendant
maintained the employment of the 2 thirty-year-old employees.” (emphasis added)).
Without additional information, any comparison between Lemieux’s termination and the
purported layoff of this other employee would be inappropriate at the motion to dismiss
stage.3 See Ostrzenski, 177 F.3d at 251. As such, the magistrate judge did not err in

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For instance, Lemieux alleges that Soh reclassified Lemieux’s position and gave
him negative performance evaluations to ensure he would get laid off, and there is no
indication that similar actions were targeted at this younger employee. Id. ¶¶ 27, 31–33.
There are also no allegations that this younger employee was in Lemieux’s group or that
the same Boeing employees who decided to layoff Lemieux also decided to layoff this
younger employee. See id. ¶¶ 32, 37 (alleging that Soh targeted Lemieux for layoff
because of Lemieux’s age).
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considering Lemieux’s allegation that the only two employees in his group that were
impacted by the RIF were over the age of fifty.
Finally, as for the allegation that Lemieux was replaced with a Dell employee,
Boeing argues that this means Lemieux’s job was outsourced to another company and
that this supports a finding that Lemieux was terminated for legitimate business reasons
rather than because of his age. ECF No. 17 at 4–5. However, the allegation in
Lemieux’s complaint states that Boeing “hired a person from Dell to fill [Lemieux’s]
position.” Compl. ¶ 43. The complaint, therefore, indicates that Boeing, not Dell, hired
Lemieux’s replacement. See id. If this is untrue, Boeing can present evidence to that
effect at a later stage in this litigation. See Fed. R. Civ. P. 56(c). For the time being, the
court finds that the magistrate judge properly construed Lemieux’s complaint while
making all reasonable inferences in Lemieux’s favor. See Ostrzenski, 177 F.3d at 251.
2. But-For Causation
Boeing argues the magistrate judge used the “motivating factor” standard but that
he should have used the “but-for” standard when assessing the allegations in Lemieux’s
complaint. ECF No. 17 at 6–9. In general, there are two methods of establishing
causation in federal anti-discrimination cases: the “but-for” test and the “motivating
factor” test. See Bostock v. Clayton Cnty., 590 U.S. 644, 657 (2020). Under the
traditional “but-for” test, an employer is liable when he takes adverse employment action
against an individual, in part, because of the individual’s protected characteristic. See id.
at 659. In contrast, under the “more forgiving” “motivating factor” test, “liability can
sometimes follow even if [the employee’s protected characteristic] wasn’t a but-for cause
of the employer’s challenged decision.” Id. at 657.

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Yet the “motivating factor” test applies only to certain claims under Title VII, and
the “but-for” test is used when assessing ADEA age discrimination claims. See id.;
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174–76 (2009). Moreover, when a plaintiff
brings a claim that is governed by the but-for test, his pleadings must be assessed under
the same standard. See Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S.
Ct. 1009, 1014 (2020) (“So, to determine what the plaintiff must plausibly allege at the
outset of a lawsuit, we usually ask what the plaintiff must prove in the trial at its end.”).
Thus, the court agrees with Boeing that Lemieux’s discrimination claim is governed by
the “but-for” causation test, and that, to survive Boeing’s motion to dismiss, Lemieux
must have alleged that his age was a but-for cause of his termination. See Gross, 557
U.S. at 174–76; Comcast, 140 S. Ct. at 1014.
However, the court is not convinced that the magistrate judge used the
“motivating factor” test when he assessed Lemieux’s complaint. Boeing concedes that
the magistrate judge correctly stated that Lemieux must allege that age was a but-for
cause of the adverse employment action. ECF No. 17 at 6 (citing R&R at 4). However,
Boeing points out that the magistrate judge then went on to state that Lemieux’s
allegations must support a reasonable inference that Boeing’s decision was “motivated by
bias.” Id. (citing R&R at 4). From this alone, Boeing concludes that the magistrate judge
applied the improper standard. Id. at 6–9.
Yet, when the magistrate judge used the phrase, “motivated by bias,” he was not
saying Lemieux’s allegations should be governed by the motivating factor causation test.
See R&R at 4. Rather, the magistrate judge used this phrase as part of a quote from the
Fourth Circuit’s decision in McCleary-Evans to explain how the court applies the Rule

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12(b)(6) plausibility standard in the employment discrimination process. 4 See id.;
McCleary-Evans, 780 F.3d at 586. Moreover, even if the magistrate judge had
mentioned the wrong test when describing the legal standard, Boeing does not point to
any place in the magistrate judge’s analysis where the motivating factor test was applied
instead of the but-for test. See ECF No. 17 at 6–9. Likewise, Boeing does not indicate
how application of the but-for test would have altered the magistrate judge’s conclusion,
and the court finds that the allegations in Lemieux’s complaint plausibly claim that
Lemieux’s age was a but-for cause of his termination. As such, the court adopts the R&R
and denies the motion to dismiss on Lemieux’s claim for discrimination under the
ADEA.
B. Second and Third Causes of Action: Retaliation and Hostile Work
Environment
Lemieux objects to the magistrate judge’s recommendation that his second and
third causes of action should be dismissed. ECF No. 16. In doing so, he provides an
enumerated list of fourteen objections to the R&R. 5 Id. at 6–10. Several of these
objections are simply recitations of general legal principals. 6 Id. In his other objections,

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Boeing argues that the magistrate judge attributed this quote to the Supreme
Court’s decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002), but that the
quoted language does not appear in that decision. ECF No. 17 at 6–7. Though the
magistrate judge’s citation is perhaps slightly confusing, the quoted language is from the
Fourth Circuit’s decision in McCleary-Evans, 780 F.3d at 586.
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Lemieux does not clearly identify which of these fourteen objections are related
to which of his causes of action. To the extent any particular objection could reasonably
relate to either his second or third cause of action, the court assumes it relates to both.
6
For example, the entirety of the third objections reads, “The Court failed to use
the liberal standard of Rule 8 when reviewing the acts of the Plaintiff’s Complaint,” and
the entirety of the fourteenth objection—the only objection in which Lemieux cites
caselaw—reads, “As to the but-for standard, the Court should consider that the reason
presented does not have to be the only reason as set forth in Goode v. Cent. Va. Legal
Aid Soc’y, Inc., 807 F.3d 619, 626 (4th Cir. 2015).” ECF No. 16 at 6, 10.
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Lemieux merely lists facts that he claims the magistrate judge failed to consider. Id. at 6–
10. Indeed, objections nine and thirteen appear to have been copied and pasted from
paragraphs thirty-two through thirty-five and paragraph thirty-seven of Lemieux’s
complaint. Compare ECF No. 16 at 7–10; with Compl. ¶¶ 32–35, 37. Nevertheless, not
only did the magistrate judge consider many of the facts Lemieux lists, Lemieux fails to
explain how consideration of those facts should have altered the magistrate judge’s
conclusions. See ECF No. 16 at 7–10; R&R at 6–8.
While it may be true that “objections need not be novel to be sufficiently
specific,” objections are not specific when they do not reasonably “alert the district court
of the true ground for the objection.” Elijah v. Dunbar, 66 F.4th 454, 460 (4th Cir. 2023).
By simply restating facts from his complaint without tying those factual allegations to
any particular defect in the magistrate judge’s reasoning, Lemieux has left it to the court
to discover how—if at all—those facts should impact the analysis of his claims. This is
not the court’s job. If this were all that was required to trigger de novo review, any party
could effectively bypass the magistrate judge by simply copying and pasting his
complaint into his objections. “District courts are not expected to relitigate entire cases
to determine the basis of a litigant’s objections.” Id. As such, the court finds that
Lemieux’s objections are not specific, and the magistrate judge’s recommendation with
respect to Lemieux’s second and third causes of action are subject to clear error review.
See id.; Stewart v. Malone, 2023 WL 3244064, at *2 (D.S.C. May 3, 2023) (citing Elijah,
66 F.4th at 461) (finding that facts copied and pasted from a plaintiff’s complaint were
not specific objections); Nowlin v. Dodson Bros. Exterminating Co., 2020 WL 2306610,
at *3 (D.S.C. May 8, 2020) (declining “to address every fact recited in Plaintiff’s

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objections” when “Plaintiff’s objections to the Report fail to engage in any analysis to
show why portions of the record not specifically discussed in the Report ought to alter the
Magistrate Judge’s reasoning, conclusions, or recommendations”); see also Matney v.
Del Toro, 2022 WL 3643977, at *3 (D.S.C. Aug. 24, 2022). A review of the record for
clear error indicates that the R&R accurately summarized this case and the applicable
law. Consequently, finding no clear error, the court adopts the magistrate judge’s
recommendation and dismisses Lemieux’s second and third causes of action.
IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the magistrate judge’s R&R
in full and GRANTS IN PART and DENIES IN PART Boeing’s motion to dismiss.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 27, 2024
Charleston, South Carolina

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