Veasy v. Teach for America, Inc.
Filing
27
MEMORANDUM. Signed by District Judge Aleta A. Trauger on 4/17/12. (dt)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOHN A. VEASY,
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Plaintiff,
v.
TEACH FOR AMERICA, INC.
Defendant.
Case No. 3:11-cv-01179
Judge Aleta A. Trauger
MEMORANDUM
The defendant has filed a Motion to Dismiss (Docket No. 21), to which the plaintiff filed
a Response in opposition (Docket No. 23), and the defendant filed a Reply (Docket No. 26). For
the reasons stated herein, the motion will be granted.
BACKGROUND
Plaintiff John A. Veasy is a 64-year old African-American. This lawsuit concerns his
unsuccessful application to secure a local teaching position through Teach for America, Inc.
(“TFA”). Veasy believes that TFA denied his application because of his race and his age, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),
and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”).
I.
Procedural History
A.
First Motion to Dismiss/Motion for Summary Judgment
Veasy filed his initial Complaint on December 14, 2011. (Docket No. 1.) TFA moved to
dismiss the Complaint for failure to state a claim under Fed. R. Civ. 12(b)(6), (Docket No. 6),
arguing that (1) the allegations did not facially establish violations of Title VII and the ADEA;
1
and/or (2) regardless of the facial plausibility of the ADEA claim, TFA is not subject to the
ADEA. In support of this second argument – but not the first argument – TFA filed and relied
upon the Declaration of Bradley Leon, its Senior Vice-President of Regional Operations.
(Docket No. 6, Ex. 1.) Veasy filed a Response in opposition to the Motion to Dismiss (Docket
No. 9), in which he argued that (1) the Complaint allegations satisfied the Rule 12(b)(6) standard
for Title VII and ADEA claims; and (2) TFA constitutes an “employment agency” as defined by
the ADEA, 29 U.S.C. § 630(c). In support of this second argument, relating to the ADEA’s
applicability to TFA, Veasy filed and relied upon a printout excerpt from TFA’s website.
(Docket No. 9, Ex. 1.)
Because TFA and Veasy had relied on materials outside of the pleadings in their briefing,
the court notified the parties that it would treat the Motion to Dismiss as one for summary
judgment under Fed. R. Civ. P. 56 and gave them until March 22, 2012 to provide any additional
materials for the court’s consideration. (Docket No. 14.)
In response to the court’s order, Veasy, on March 9, 2012 (13 days before the courtordered deadline), filed an Affidavit of John A. Veasy (Docket No. 18) and a Motion for Leave
to Amend the Complaint (Docket No. 15), which purported to seek the court’s leave to file a
Proposed Amended Complaint (Docket No. 17). Because the Motion for Leave to Amend was
filed within 21 days of service of the Motion to Dismiss, the court treated the amendment as
having been made as a matter of right under Rule 15(a)(1) and denied TFA’s pending motion as
moot. (Docket No. 19.) Pursuant to the court’s order, Veasy filed his Amended Complaint on
March 13, 2012. (Docket No. 20. (“Am. Compl.”).) The Amended Complaint contains five
paragraphs of additional allegations, chiefly relating to the issue of age discrimination. (See Am.
2
Compl. ¶¶ 12-16.)1
B.
Second Motion to Dismiss/Motion for Summary Judgment
TFA has filed a Motion to Dismiss the Amended Complaint. (Docket No. 21.) In
support of the motion, TFA has essentially restated the same arguments that it asserted with
respect to its first Motion to Dismiss/Motion for Summary Judgment, supported by the exact
same materials. TFA again argues that (1) the race and age discrimination allegations do not
establish violations of Title VII or the ADEA; and (2) regardless of the facial plausibility of the
ADEA claim, TFA is not subject to the ADEA. As before, TFA relies on the Leon Declaration
in support of this second argument, but not the first.2 In response, Veasy argues, as before, that
(1) the Amended Complaint allegations establish facially plausible Title VII and ADEA claims,
and (2) with respect to Veasy’s application, TFA constituted an “employment agency” subject to
the ADEA.3 As before, with respect to the his second argument, Veasy relies on the TFA
webpage printout that he previously filed at Docket No. 18.4
In briefing the instant motion, both parties have again relied on materials outside the
1
Presumably, Veasy sought leave to amend the Complaint to correct certain clear
pleading deficiencies that TFA had identified in its initial motion. Indeed, many of the
statements in the Veasy Affidavit, which was submitted for the court’s consideration as to TFA’s
then-pending motion under the Rule 56 standard, appear to have been incorporated into the
Amended Complaint.
2
In support of its renewed motion, TFA refiled the Leon Declaration at Docket No. 21,
Ex. 1. That sworn declaration is identical to the Leon Declaration that TFA had filed at Docket
No. 6, Ex. 1, in support of its original motion.
3
Veasy does not contest that TFA was not his “employer” for ADEA purposes.
4
In his Response to the instant motion, Veasy does not refer to or rely upon his previously
filed affidavit. Thus, as to the facial plausibility of the Title VII and ADEA claims, Veasy relies
only on the face of the Amended Complaint, consistent with the Rule 12(b)(6) standard.
3
pleadings with respect to the ADEA coverage issue. Accordingly, the court will consider that
issue under the Rule 56 standard. Although the court typically provides the parties additional
time to submit materials after converting the motion, that procedural step is not necessary here.
Veasy previously responded to the Leon Declaration with materials outside the pleadings, both
of his own volition (see Docket No. 9, Ex. 1 (TFA webpage excerpt)) and in response to the
court’s previous Rule 56 conversion order (Docket No. 18, Veasy Affidavit). With regard to the
instant motion, both parties have chosen to rely on the same supporting materials they previously
submitted with respect to the original motion, which involved essentially the same legal and
factual issues. In particular, not only has Veasy not objected to TFA’s reliance upon materials
outside the pleadings in support of the instant motion, he himself also relies (again) on materials
outside the pleadings. Therefore, there is no reason to delay consideration of the parties’
renewed arguments concerning disposition of this case any further.
Under these circumstances, the court will analyze the facial plausibility of the Amended
Complaint under the Rule 12(b)(6) standard and will separately analyze the ADEA coverage
issue under the Rule 56 summary judgment standard.
II.
Amended Complaint Allegations
Veasy is a 64-year old African-American man with superlative academic and
employment credentials, including multiple Associate’s degrees, a Bachelor’s Degree, and a
Master of Science. Veasy worked for the United States Air Force for 20 years and, following
that, for 17 years as the Vice President of the Human Resource Department for a private
company.
Following retirement, Veasy sought to give back to the community. In October 2008,
4
Veasy learned that the Mayor of Nashville had committed to fund 50 positions in Nashville’s
highest risk schools, positions that would be filled through TFA. Veasy applied to TFA for one
of these positions in November 2008.
To qualify for a teaching position through TFA,5 an applicant must meet certain
minimum eligibility criteria, including having earned a bachelor’s degree from an accredited
institution and having achieved an undergraduate GPA of at least 2.50 on a 4.00 scale. Veasy
earned a 3.53 GPA from his undergraduate institution, from which he graduated in 1982.
It appears that TFA’s typical applicants are recent college graduates. Nevertheless,
following his retirement, Veasy applied for a TFA position to give back to the Nashville
community and in the hope that the position “would allow him to tone [sic] his teaching skills
and may lead to a permanent position as a teacher or guidance counselor.” (Am. Compl. ¶ 15.)6
Furthermore, Veasy saw on TFA’s website that it was seeking to recruit members of any
background, especially minority candidates. Veasy also alleges that TFA’s website stated that
“[a]lmost one-third of incoming corps members are people of color, 350 are African-Americans,
5
The Amended Complaint erroneously alleges that Veasy was applying for a position
“with TFA.” (See, e.g., Am. Compl. ¶ 8). However, as TFA has clarified (and as explained in
more detail in Background Section III below), Veasy was actually applying to become an
employee of a local school district, not TFA. Applicants who meet TFA’s qualification criteria
become TFA “Corps” members whom TFA trains, but the applicants must ultimately meet the
requirements of the local school districts, which decide which applicants they will accept. Veasy
does not contest TFA’s position in this regard.
6
Although the Amended Complaint alleges that Veasy “has an extensive background in
education,” (Am. Compl. ¶ 5), it is not clear whether he could have qualified as a teacher or
guidance counselor after completing the Teach for America program in any case, whatever his
intentions. See http://tennessee.gov/education/lic/in/shtml (“To become a licensed elementary or
secondary school teacher, school counselor . . . or school administrator, an individual must
successfully complete a preparation program in the area of interest at an approved teacher
education institution, Praxis Series Exams required for state licensing, and be recommended for
licensure by the Dean of Education and the Certification Office of the college/university.”)
5
and 105 are individuals who completed their undergraduate education ten years ago or longer.”
(Id. ¶ 16.)
TFA utilizes a multi-step process for screening applicants. Veasy completed these steps
and was ultimately selected for a final interview. He alleges that, at an unspecified point in this
process, he “was asked if he was in the wrong place because ‘they have never had an older
person here.’” (Id. ¶ 12.) From the Amended Complaint, it is not clear who made this statement,
at what point in the interview process the speaker made the statement, where it was made,
whether that speaker was a TFA employee or representative, and/or whether the speaker was an
interviewer (i.e., whether the individual may have influenced the disposition of Veasy’s
application).7
Veasy also alleges that, “[d]uring this process [,] the only other applicants were ranging
in age from 19 to 21 years,” (Am. Compl. ¶ 8), although the basis for this statement is dubious.8
7
Many of Veasy’s Amended Complaint allegations are similarly framed in the passive
voice without supporting contextual detail, making it essentially impossible to determine who
allegedly made a particular statement, when the statement was made, where it was made, and the
status of the person making the statement. Although the court is obligated to give a complaint a
liberal construction, the court will not engage in “gap-filling” to draw unreasonable inferences
from a pleading, particularly for a represented party. For example, to interpret the allegation in
the first sentence of the Amended Complaint ¶ 12 as supporting Veasy’s ADEA claim, the court
would need to assume, without adequate contextual support, that the speaker was a TFA
representative, that this TFA representative made the statement to Veasy in the context of
Veasy’s interview process, and that the TFA representative had some influence on the
application process and/or reflected TFA’s general sentiment towards older workers. On the
other hand, it could be that another interviewee made the statement in Veasy’s presence; or,
perhaps, a clerical worker with no influence on the hiring decisions made the statement. It is
simply not clear from the Amended Complaint.
8
Veasy does not allege that he has personal knowledge of the ages of the other applicants,
nor is it clear to the court how he could have possessed that knowledge. In his statement to the
Equal Employment Opportunity Commission (“EEOC”), which was attached to his affidavit
here, Veasy represented that his initial interview consisted of a 45-minute phone interview.
(Veasy Aff., Ex. 2 at p. 1.) If TFA conducted initial interviews of its other applicants by
6
At an unspecified point in the interview process, Veasy asked his interviewers if there was an
age restriction for applicants. The interviewers allegedly laughed and said that there was not an
age restriction. According to Veasy, “they appeared to be surprised that someone like the
plaintiff would apply.” (Id. ¶ 8.)
At an unspecified point, Veasy appeared for a final interview at an unspecified “final
interview site.” Veasy was the first to arrive at this site, at which TFA had apparently scheduled
final interviews with multiple candidates. When Veasy entered “the room,” “a female
(approximately 23 years old), asked plaintiff if he was in the right room,” told him “that the
room was for TFA interviews” and that “[w]e’ve never had an older person here before.” (Id. at
¶ 12.) The Amended Complaint does not allege that this individual was a TFA representative
and, if so, whether that individual appeared to have any influence on the disposition of Veasy’s
application.
The Amended Complaint also states that “plaintiff was told that ‘TFA ‘was for only
young people mostly seniors planning to graduate in the spring.” (Id. (lack of end quotation
marks in original).) The Amended Complaint also states that Veasy “was told that TGA [sic]
was not developed for people like him.” (Id.) Again, the allegations do not identify who made
these statements, when they were made, and in what capacity they were made.
At some point after arriving at the final interview site, Veasy noticed that “a majority of
the other finalists were not only young, but white.” (Id. ¶ 9.) Veasy participated in a final
interview, which lasted ten minutes. TFA sent Veasy a letter denying his application.
telephone, Veasy plainly would not have had personal knowledge of their ages or any other
identifying characteristics, except to the extent he observed a subset of those applicants at the
final interview site. The fact that applicants have to have received an undergraduate degree also
militates against the predominance of at least 19 and 20 year olds.
7
Veasy asked TFA to explain the denial of his application. TFA refused to provide him an
explanation, stating that it does not speak to applicants about its application decisions. Veasy
filed a charge with the EEOC, in response to which TFA stated that it did not hire him because
he “was not the strongest candidate” and “did not give the impression that he was interested in
being a classroom teacher for two years.” (Id. ¶ 17.) Veasy alleges that these stated reasons
were merely pretextual and that TFA, in fact, denied his application because of his race and his
age.
Veasy demands $750,000 for lost wages, front pay, and liquidated damages, as well as
$1,000,000 in punitive damages, plus attorney’s fees and costs.9
III.
Facts Concerning TFA’s Business Operations
According to the Leon Declaration, which is essentially unrebutted, TFA is a non-profit
organization that recruits, selects, trains, and provides ongoing professional development to
individuals who commit to teach for at least two years in low-income, underserved communities
in the United States. Applicants apply to become TFA “Corps members.” TFA’s goal is provide
opportunities for Corps Members to gain insight into the causes of America’s “achievement
gap,” so that those Corps Members can become leaders in a nationwide effort to end educational
inequality.
9
Although not addressed by the parties, the court questions the propriety of Veasy’s
extraordinary demands for relief. According to TFA’s website, teachers who earn placements
through TFA earn only $30,000 to $51,000 per year (plus a benefits package that varies by
school district). See
www.teachforamerica.org/why-teach-for-america/compensation-and-benefits/salary-and-healthbenefits. TFA placements are typically for two-year periods only. Thus, even if Veasy, a retiree,
had improperly been denied a position by TFA, it is difficult to ascertain how he and his counsel
believe that he could be entitled to $1.75 million in damages, exclusive of attorney’s fees and
costs, for two years of lost employment as a teacher.
8
Applicants who are accepted as Corps Members participate in a TFA summer training
program. After completing their summer training, Corps Members may become faculty
members at public schools across the country. Corps Members are not guaranteed placement in
a particular school. Instead, at its discretion, TFA submits a Corps Member’s credentials to a
particular school, which determines whether the Corps Member meets the school’s eligibility
criteria and, if so, whether the school district will offer a position to that individual.
Corps Members are not TFA employees and receive no compensation of any kind from
TFA. Instead, TFA procures opportunities for its Corps Members to gain employment at schools
within a particular region of the country. TFA’s primary mission is to train future leaders to
commit to teach in low-income, underserved communities, not to headhunt for the school
districts. At any rate, the schools — not TFA – ultimately employ Corps Members.
TFA does maintain a contractual relationship with the school districts, through which the
school districts may employ some Corps Members (presumably through the process outlined
above). Although the school districts pay TFA a small fee for each year of a Corps Member’s
service for the ongoing training and professional development TFA provides to its Corps
Members, the fee represents only a small fraction of the total cost of training and developing a
Corps Member. The fee is not intended to reimburse TFA for the investment it makes in its
Corps Members.
The year that Veasy applied for TFA, only 15% of applicants were selected to become
Corps Members.
In response, Veasy cites to certain statements on TFA’s website, to the effect that TFA
“[w]orks hard to match your placement with the preferences you indicate” and that “[t]he
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preferences of our applicant pool are aligned with regional needs and placement availability.”
(Docket No. 23 at p. 7 (referencing Ex. 1 to Docket No. 9).)
ANALYSIS
I.
Facial Plausibility of the Title VII and ADEA Claims
A.
Rule 12(b)(6) Standard
In deciding a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6),
the court will “construe the complaint in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.
2002). The Federal Rules of Civil Procedure require that a plaintiff provide “‘a short and plain
statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and
the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80
(1957) (quoting Fed. R. Civ. P. 8(a)(2)). The court must determine whether “the claimant is
entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately prove
the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S. Ct. 992, 152 L. Ed. 2d
1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007). To establish the “facial plausibility” required to “unlock the doors of
discovery,” the plaintiff cannot rely on “legal conclusions” or “[threadbare] recitals of the
elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
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alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009).
At the motion to dismiss stage, an employment discrimination plaintiff is not required to
plead the elements of a prima facie case 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), which is “an
evidentiary standard, not a pleading requirement.” Swierkiewicz, 534 U.S. at 510 (“This court
has never indicated that the requirements for establishing a prima facie case under McDonnell
Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a
motion to dismiss.”); Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 728 (6th
Cir. 2009); HDC, LLC v. City of Ann Arbor, No. 10-2078, - - - F.3d - - - , 2012 WL 1058882, at
*4 (6th Cir. Mar. 30, 2012) (submitted for publication) (“We recognize that ‘the prima facie case
operates as a flexible evidentiary standard, [and] it should not be transposed into a rigid pleading
standard for discrimination cases.’”) (quoting Swierkiewicz, 534 U.S. at 512).
Accordingly, with respect to discrimination claims otherwise subject to the McDonnell
Douglas burden-shifting framework, at the motion to dismiss stage, “the ordinary rules for
assessing the sufficiency of a complaint apply.” Pedreira, 579 F.3d at 728 (quoting
Swierkiewicz, 534 U.S. at 511); see also Lindsey v. Yates, 498 F.3d 434, 439 (6th Cir. 2007)
(restating holding in Swierkiewicz that “an employment-discrimination plaintiff satisfies her
pleading burden by drafting a ‘short and plain statement of the claim’ consistent with Federal
Rule of Civil Procedure 8(a).”) “[B]road and conclusory allegations of discrimination cannot be
the basis of a complaint and a plaintiff must state allegations that plausibly give rise to the
inference that a defendant acted as the plaintiff claims.” HDC, LLC, 2012 WL 1058882, at *4.
Thus, “a legal conclusion couched as a factual allegation need not be accepted as true on a
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motion to dismiss, and . . . a recitation of the elements of the cause of action is insufficient to
state a claim for relief.” Id. (internal citations and quotation marks omitted). “T]his standard
does not require detailed factual allegations, but a complaint containing a statement of facts that
merely creates a suspicion of a legally cognizable right of action is insufficient.” Id. (internal
citations and quotation marks omitted) (emphasis in original).
B.
Facial Plausibility of Title VII Race Discrimination Claim
Under Title VII, it is unlawful for an “employment agency” “to fail or refuse to refer for
employment, or otherwise to discriminate against, any individual because of his race . . . , or to
classify or refer for employment any individual on the basis of his race . . . .” 42 U.S.C. §
2000e-2(b). An “employment agency” is defined as “any person regularly undertaking with or
without compensation to procure employees for an employer or to procure for employees
opportunities to work for any employer and includes an agent of such a person.” 42 U.S.C. §
2000e(c). The Supreme Court has clarified that “employees” within this definition means
“prospective employees.” See Robinson v Shell Oil Co., 519 U.S. 337, 343 n. 3, 117 S. Ct. 843,
136 L. Ed. 2d 808, 814 (1997). TFA appears to concede that it meets the Title VII definition of
“employment agency,” because it “procures” for its Corps Members (i.e., the “prospective
employees” of the school districts) the opportunity to work for school districts in certain areas of
the country (i.e., the prospective “employers”). (See Leon Declaration ¶ 11.)
Here, Veasy’s Amended Complaint establishes that he was a highly qualified candidate
for the available positions. However, Veasy’s only pertinent allegation pertaining to race
indicates that, “[o]n the same day of his final interview, [Veasy] noticed that the majority of the
other finalists were not only young, but white.” (Am. Compl. ¶ 9.) Veasy also argues that
12
TFA’s refusal to provide him a reason for his application denial upon request should “raise a red
flag” regarding TFA’s motives. Based on these allegations, Veasy asserts that he would have
been hired by TFA, “but for” his race. (Id. ¶ 17.) He also argues that, “[w]ith the fact in place
that defendant concealed information from the plaintiff, discovery should be allowed to obtain
documents, names and other information pertinent to plaintiff’s claims. Almost always, any
documents in employment discrimination cases are in the hands of the defendant which puts
plaintiffs at a great disadvantage.” (Docket No. 23 at p. 5.)10 Veasy cites to no legal authority
for this position.
These bare allegations do not state a facially plausible claim of race discrimination. Even
if Veasy “noticed” that a “majority of other finalists were white,” that fact alone does not suggest
any discriminatory animus by TFA with regard to its denial of Veasy’s application or, for that
matter, with respect to its hiring process generally. To the contrary, Veasy’s own allegations
suggest that a number of the finalists were people of color and, tellingly, TFA selected Veasy (an
African-American) for a final interview after an initial interview screening process. Moreover,
Veasy does not allege that TFA employees made any statements concerning his race, nor does he
allege that TFA or its employees engaged in any conduct whatsoever that could reasonably be
interpreted as racially motivated. Finally, the argument by Veasy’s counsel that, as a general
matter, defendants possess essentially all relevant information concerning a discrimination
plaintiff’s claims, thereby “always” entitling plaintiffs to discovery, is not well-taken. The
argument is pure boilerplate, is not justified under the circumstances presented here, and, in any
10
In his Response, as it relates to the Rule 12(b)(6) issues, Veasy generally does not
distinguish legal arguments relating to his age discrimination claim from those relating to his
Title VII claim. In considering the motion, the court will assume that Veasy’s counsel is
asserting the “disadvantage” argument as to both claims.
13
case, is plainly inconsistent with the pleading standards applicable to employment discrimination
cases, which definitely do not entitle plaintiffs to discovery in “almost all” discrimination cases,
as Veasy’s counsel asserts. See HDC, LLC, 2012 WL 1058882, at *4; Pedreira, 579 F.3d at 728.
Thus, Veasy’s broad and conclusory allegations of racial discrimination, which are
entirely subjective as alleged, do not give rise to a fair inference that TFA discriminated against
him on the basis of race. See HDC, LLC, 2012 WL 1058882, at *4 (“[A] complaint containing a
statement of facts that merely creates a suspicion of a legally cognizable right of action is
insufficient.”) (emphasis in original) (internal quotation marks omitted).
C.
Facial Plausibility of the ADEA Claim
The ADEA prohibits an “employment agency” from failing or refusing to refer for
employment, or otherwise discriminating against, any individual on the basis of such
individual’s age. 29 U.S.C. § 623(b).11 Here, TFA argues that the ADEA claim fails for two
independent reasons: (1) under the Rule 12(b)(6) standard, the allegations do not state a plausible
claim for relief; and/or (2) even if the ADEA claim is facially plausible, TFA is not, as a matter
of law, an “employment agency” under the ADEA definition, which is narrower than the
“employment agency” definition under Title VII. The court will analyze the facial plausibility
issue first, under the Rule 12(b)(6) standard.
A plaintiff who, as here, brings a disparate treatment claim must ultimately show that age
was a determining factor in the adverse action taken against him or her. Allen v. Highlands
Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008); see also Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 141, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (“When a plaintiff alleges
11
The ADEA protects individuals who are 40 years of age or older, 29 U.S.C. § 631(a).
14
disparate treatment, liability depends on whether . . . the plaintiff’s age . . . actually played a role
in the employer’s decisionmaking process and had a determinative influence on the outcome.”);
Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 1994) (“The ultimate question in every
employment discrimination case involving a claim of disparate treatment is whether the plaintiff
was the victim of intentional discrimination.”) (quoting Reeves, 530 U.S. at 153); McKnight v.
Gates, 282 Fed. App’x 394, 399 (6th Cir. 2008); Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023
(6th Cir. 1993).
Here, Veasy alleges that, during the interview/application process for TFA, some
individuals made age-based comments to him. However, in most instances, the Amended
Complaint does not even establish that the individuals who made these comments were affiliated
with TFA, let alone had any influence on the hiring process. The only alleged comment directly
attributable to TFA employees is the response of TFA interviewers to Veasy’s question, during
his final interview, as to whether TFA imposed an age restriction. The interviewers laughed and
appropriately responded no.
As to the most “explosive” alleged statements, such as the alleged statements that “TFA
was for only young people” and “was not developed for people like [Veasy],” the Amended
Complaint does not provide any specific details concerning who made the statement, when, or in
what capacity. Veasy also relies on his observation that other interviewees seemed to be
between 19 to 21 years old, although it is not clear how he formed this belief except as to any
individual he observed in the final interview room. Finally, as with the Title VII claim, Veasy
argues that TFA’s refusal to provide a reason for denying his application should “raise a red
flag” and that, as is “always” the case in employment discrimination cases, he is necessarily
15
entitled to discovery to prove his claims.
These allegations do not meet the Rule 12(b)(6) standard for a facially plausible ADEA
claim. The court will not read into the Amended Complaint the unreasonable inferential leaps
that would be required to attribute the most pertinent alleged statements to TFA representatives.
Veasy has had two opportunities to provide sufficient allegations supporting the ADEA claim,
but has twice failed to articulate sufficient age-related allegations attributable to TFA.
Moreover, the interview process alleged by Veasy does not “raise a red flag” and there is no
indication that TFA “concealed” vital information from him. As with the Title VII claims, the
court finds the boilerplate argument concerning the “great disadvantage” facing plaintiffs in
discrimination cases to be unpersuasive and inconsistent with binding legal precedent.
Accordingly, the court finds that Veasy has failed to state a claim against TFA under the ADEA.
II.
Motion for Summary Judgment Based on Applicability of the ADEA to TFA
Even assuming arguendo that the Amended Complaint states a facially plausible ADEA
claim, TFA is entitled to summary judgment because, based on the undisputed facts before the
court, it is not subject to the ADEA as a matter of law, for the reasons described below.
A.
Rule 56 Standard
Rule 56 requires the court to grant a motion for summary judgment if “the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a) (2011). At the summary judgment stage, the moving party
bears the initial burden of identifying those parts of the record that demonstrate the absence of
any genuine issue of material fact. Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.
2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265
16
(1986). However, if the moving party seeks summary judgment on an issue for which it does not
bear the burden of proof at trial, the moving party may meet its burden by showing that there is
an absence of evidence to support the non-moving party’s case. Id. (citing Celotex, 477 U.S. at
325). “When the moving party has carried this burden, ‘its opponent must do more than simply
show that there is some metaphysical doubt as to the material facts.’” Id. (quoting Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d
538 (1986).) The non-moving party also may not rest upon its mere allegations or denials of the
adverse party’s pleadings, but rather must set forth specific facts showing that there is a genuine
issue for trial. Id.
At this stage, “‘the judge’s function is not . . . to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine issue for trial.’” Moldowan, 578
F.3d at 374 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L.
Ed. 2d 202 (1986)). “In evaluating the evidence, the court must draw all inferences in the light
most favorable to the nonmoving party.” Moldowan, 578 F.3d at 374 (citing Matsushita, 475
U.S. at 587). But “[t]he mere existence of a scintilla of evidence in support of the non-moving
party’s position will be insufficient,” Moldowan, 578 F.3d at 374 (quoting Anderson, 477 U.S. at
252), and the non-movant’s proof must be more than “merely colorable.” Anderson, 477 U.S. at
249. An issue of fact is “genuine” only if the record taken as a whole could lead a rational trier
of fact to find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Matsushita, 475
U.S. at 587).
B.
The Meaning of “Employment Agency” Under the ADEA
The parties appear to agree that TFA can only be held liable under the ADEA if it
17
constitutes an “employment agency” as defined therein.
The definition of “employment agency” under the ADEA is narrower than the definition
of “employment agency” under Title VII. Under the ADEA, an “employment agency” means
“any person regularly undertaking with or without compensation to procure employees for an
employer and includes an agent of such a person . . . .” 29 U.S.C. § 630(c) (emphasis added).
Thus, unlike Title VII, the ADEA definition does not define “employment agency” to include
entities that regularly undertake “to procure for [prospective] employees opportunities to work
for an employer.” TFA argues that this omission is significant and must be read as exempting a
particular class of “employment agencies” subject to Title VII from the ADEA’s coverage – i.e.,
some entities subject to Title VII as “employment agencies” are, nevertheless, not subject to the
ADEA as “employment agencies.” TFA argues that its business is to “procure for [prospective]
employees opportunities to work for an employer,” which is precisely the category of entities
that Congress chose to exempt from the ADEA’s coverage.
In support of its position, TFA cites to Wynn v. Nat’l Broad. Co., Inc., 234 F. Supp. 2d
1067, 1104-1108 (C.D. Cal. 2002) and to Moore v. Ford Motor Co., 901 F. Supp. 1293, 1297
(N.D. Ill. 1995).12 Wynn appears to be the only case in which a federal court has addressed the
12
Only a handful of cases nationwide have interpreted the ADEA’s “employment agency”
provision, particularly as distinguished from the broader Title VII definition. Those courts have
acknowledged the paucity of case law on this topic, which apparently has persisted for over 35
years. See Cannon v. Univ. of Chicago, 559 F.2d 1063, 1075-76 (7th Cir. 1976) (analyzing
application of ADEA definition and stating that “[l]itigation concerning the meaning of the term
employment agency is rather sparse and primarily has been confined to cases arising under a
very similar definition of the term under Title VII . . . .”); Scaglione v. Chappaqua Cent. Sch.
Dist., 209 F. Supp. 2d 311, 316 (S.D.N.Y. 2002) (“[O]ver 25 years ago, the Seventh Circuit
noted in an ADEA case [Cannon] that ‘[l]itigation concerning the meaning of the term
employment agency is rather sparse.’ Unfortunately, little has happened in the last quartercentury to alter that. There are very cases invoking [the Title VII definition or] the similarly
worded ADEA provision [,] and the few that do almost invariably involve an entity that is
18
distinction between the Title VII and ADEA definitions of “employment agency.” There, a
number of screenwriters sued, among other defendants, a set of talent agencies, alleging that the
talent agencies had failed to adequately promote their clients’ interests in procuring employment
opportunities for them, such as writing for a broadcasting company. Id. at 1075. The court first
observed that, as a general matter, the ADEA was derived substantially from Title VII and that,
as a consequence, courts routinely look to Title VII for guidance in interpreting parallel ADEA
provisions. Id. at 1105 (citing McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 356,
115 S. Ct. 879, 884, 130 L. Ed. 2d 852 (1995) and Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 121, 105 S. Ct. 613, 621, 83 L. Ed. 2d 523 (1985)); see also Everson v. Mich. Dep’t of
Corr., 391 F.3d 737, 748 n.15 (6th Cir. 2004) (“The provisions of the ADEA generally receive
an identical interpretation to corresponding provisions of Title VII,” particularly where “Title
VII and the ADEA define [a particular provision] in materially indistinguishable terms”).
Because Congress had largely copied Title VII provisions into the ADEA, the court found that
Congress’s choice to copy only a portion of the “employment agency” definition into the ADEA
to be “anything but insignificant.” Id. at 1105. Thus, the court found that, because Congress did
indisputably an ‘employment agency.’”) (internal citation omitted); Wynn, 234 F. Supp. 2d at
1105 (“[N]either party has located a single case in which a talent agency was either covered
under or excluded from the ADEA . . . .”) Complicating matters further, some of these decisions
interpreting the ADEA (with the notable exception of Wynn) and certain published practice
guides fail to acknowledge the significant difference between the Title VII definition and the
ADEA definition, essentially describing them as if they were identical – which they are not –
perhaps because the distinction is so seldom pertinent in the litigation context. See, e.g., 5 Emp.
Coord. Employment Practices § 20:214 (stating that Title VII, the ADEA, and the ADA apply to
“organizations that engage to a significant degree in obtaining employees or employment
opportunities for potential employees”) (emphasis added); 45A Am. Jur. 2d Job Discrimination
§ 88 (2012) (stating that, “[u]nder Title VII, the ADEA, and the ADEA, a covered employment
agency is a ‘person’ . . . who regularly attempts to obtain employees for an employer, or to
obtain employment opportunities for potential employees.”) (emphasis added).
19
not include the “procure for employees opportunities to work for an employer” clause in the
ADEA definition, traditional rules of statutory construction prevented the court from reading that
phrase back into the definition. Id. at 1105-1106 (citing Bates v. United States, 522 U.S. 23, 2930, 118 S. Ct. 285, 290, 139 L. Ed. 2d 215 (1997)). Accordingly, the court found that entities
that only “procure for employees opportunities to work for an employer” (the precise Title VII
language that Congress omitted from the ADEA definition) were exempt from the ADEA’s
coverage, even though they would otherwise be subject to Title VII. Id. at 1108 (“The
conspicuous absence of the phrase ‘procure for employees opportunities to work for an
employer’ in the ADEA definition of ‘employment agency’ and its presence in the Title VII
definition of ‘employment agency’ . . . cannot be dismissed as accidental.”)
The Wynn court determined that a talent agency, which “is selective in choosing who it
will represent, and plays a more pro-active role is seeking employment opportunities for its
clients, instead of waiting for a job opening to arise,” constitutes an entity that “procures for
[prospective] employees opportunities to work for employers,” not an entity that “procures
employees for employers.” Id. at 1107 (emphasis in original). The court therefore held that the
talent agencies were not subject to the narrower ADEA definition of “employment agency.” Id.
at 1108.13
In Moore, a district court considered the plaintiff’s claims that Ford Motor Company
acted as his “employment agent” with respect to a dealership program. 901 F. Supp. at 1297.
13
The court also explained that “there is a rational basis behind excluding talent agencies
from age discrimination liability, because the incentive to discriminate does not exist for talent
agencies in the same manner as it does for employers, labor organizations, and other forms of
employment agencies included under the ADEA.” Id. at 1108 n.31. In particular, it noted that
“talent agencies have nothing to gain by discriminating against older workers . . . .” Id.
20
Apparently to train individuals whom it had selected to run independent dealerships, Ford chose
individuals to participate in a dealership training program that it administered. Id. After
administering the training program, Ford would assign the individual to work and train under a
licensed Ford dealer, which would act as that individual’s employer. Id. Although the court did
not precisely reach the question because the claim failed on other grounds, the court stated that it
was “unlikely” that Ford’s training placements could be considered “acts of an employment
agency” for ADEA purposes. Id.
In response, Veasy does not directly address, let alone attempt to distinguish, the Wynn
and Moore cases;14 nor he does assert any competing statutory interpretation of the ADEA to that
offered by the Wynn court or TFA. Veasy does cite to a 1970 Northern District of California
decision, Brush v. San Francisco Newspaper Printing Co., in which that court found that, with
respect to Title VII, “the statutory requirement that an employment agency be one that
‘regularly’ undertakes to procure employees or employment opportunities indicates that the
Congress had in mind only those engaged to a significant degree in that kind of activity as their
profession or business.” 315 F. Supp. 577, 580 (finding that newspapers that publish “help
wanted” listings under separate “men” and “women” headings did not constitute employment
agencies for Title VII purposes), aff’d 469 F.2d 89 (9th Cir. 1972), cert. denied 410 U.S. 943, 93
S. Ct. 1369, 35 L. Ed. 2d 609 (1973). However, Brush is plainly inapposite here. First, the case
concerned the broader definition of “employment agency” contained within Title VII, not that in
the ADEA. Second, the issue there was essentially whether the nature of a newspaper’s business
was to “regularly” engage in employment agency-like activity – which the Brush court found
14
Veasy simply states, in conclusory fashion, that “all” of the cases cited by TFA are
“misaligned.”
21
was not the case. See id. at 580 (“Newspapers, although in the business of printing and
publishing advertising copy presented by employers . . . , are not in any other or ordinary sense
engaged in the business of procuring employees or employment opportunities . . . .”) By
contrast, here there is no dispute that TFA “regularly” engaged in employment procurement
activity on behalf of Corps Members; the issue is whether that procurement activity constitutes
“procuring employees for an employer” as required by the ADEA.
The court finds TFA’s statutory interpretation arguments to be persuasive. Veasy does
not even address the compelling reasoning of the Wynn court, with which this court agrees.
There are material differences in the definitions of “employment agency” in Title VII and the
ADEA. If Congress had intended to copy the broader Title VII “employment agency” definition
into the ADEA, it could have done so – as it did with many other ADEA provisions – but chose
not to. Thus, Congress’s choice to exclude a class of entities from the ADEA’s coverage must
be given effect, a point of statutory interpretation that Veasy has not contested here.
C.
Application of the ADEA “Employment Agency” Definition to TFA
TFA argues that its business operations are similar to the talent agencies in Wynn and the
Ford training program described in Moore, because it does not “procure employees for an
employer” as required under the ADEA but, instead, “procures for employees employment
opportunities to work for an employer.” Essentially, it argues that, like the talent agencies in
Wynn and Ford as dealership program administrator in Moore, it falls within the category of
“employment agencies” that Congress did not graft onto the ADEA from Title VII.
In support of its position, TFA filed the Leon Declaration, which contains a number of
averments related to TFA’s business operations. (See supra Background Section III, Facts
22
Concerning TFA’s Business Operations.) The only countervailing “facts” identified and relied
upon by Veasy are drawn from TFA’s website, which states that TFA “work[s] hard to match
your placement with the preferences you indicate” and that “the preferences of our applicant
pool are aligned with regional needs and placement ability.” (See Docket No. 9, Ex. 1.) Veasy
does not address, let alone attempt to rebut or recharacterize, the factual averments in the Leon
Declaration. Moreover, aside from his generalized statement that “all” of the cases cited by TFA
are “misaligned,” Veasy does not explain how the factual circumstances presented in Wynn and
Moore are materially distinguishable from the facts presented here and would, therefore, merit a
different result.
Without addressing the Leon Declaration, explaining how the website statements support
his legal position, or distinguishing Wynn and Moore, Veasy summarily asserts that TFA “meets
the [ADEA] definition like a glove” and that “no well[-]informed, disinterested party could
disagree with the fact that TFA acts as an employment agency.” (Docket No. 23 at p. 7.)
Respectfully, the court disagrees. Even interpreting the website representations in the
light most favorable to Veasy, those representations do not rebut the otherwise undisputed, clear,
and compelling sworn representations made by Leon on behalf of TFA. Those unrebutted
representations establish that TFA is not in the business of procuring employees for school
districts – such as by “headhunting” – but, instead, procures for its Corps Members opportunities
to work at school districts. Thus, the undisputed facts establish that TFA is a type of entity - i.e.,
an entity that “procures for [prospective] employees opportunities to work for an employer” –
that was excluded from the ADEA’s scope relative to Title VII.
Accordingly, the court finds that TFA does not constitute an “employment agency” as
23
defined by the ADEA. Therefore, regardless of the facial plausibility of the ADEA allegations in
the Amended Complaint, the undisputed facts establish that TFA is entitled to judgment as a
matter of law on Veasy’s ADEA claim.
CONCLUSION
For the reasons stated herein, TFA’s motion will be granted and Veasy’s claims will be
dismissed with prejudice.
An appropriate order will enter.
_____________________________
ALETA A. TRAUGER
United States District Judge
24
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