Wheeler v. Gables Residential Services Inc
Filing
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MEMORANDUM OPINION AND ORDER granting in part and denying in part 12 Amended Motion for Partial Dismissal. (Ordered by Senior Judge A. Joe Fish on 5/25/2017) (ran)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAMES M. WHEELER,
Plaintiff,
VS.
GABLES RESIDENTIAL SERVICES,
INC.,
Defendant.
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CIVIL ACTION NO.
3:17-CV-0449-G
MEMORANDUM OPINION AND ORDER
Before the court is the motion of the defendant Gables Residential Services,
Inc. (“Gables”) to partially dismiss this case for lack of subject matter jurisdiction,
pursuant to FED. R. CIV. P. 12(b)(1), and for failure to state a claim upon which relief
can be granted, pursuant to FED. R. CIV. P. 12(b)(6) (docket entry 12). For the
following reasons, the motion is denied in part and granted in part.
I. BACKGROUND
In February of 2010, Gables hired the plaintiff James M. Wheeler
(“Wheeler”). Plaintiff’s First Amended Original Complaint (“Complaint”) ¶ 9
(docket entry 11). On March 20, 2016, Gables terminated Wheeler’s employment.
Id. ¶ 20. Wheeler was 66-years-old at the time. Id. ¶ 23.
On December 1, 2016, Wheeler filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) asserting that Gables had
unlawfully discriminated against him in its decision to terminate his employment.
Appendix to Defendant’s Amended Motion for Partial Dismissal (“Appendix”) at
APP 3-APP 7 (docket entry 13).
On February 17, 2017, Wheeler filed this suit alleging discrimination in
violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29
U.S.C. § 621 et seq. On April 11, 2017, he amended his complaint and asserted that
Gables “followed a policy and practice of discrimination against Plaintiff . . . in
violation of the ADEA” and brought claims for disparate treatment, disparate impact,
and hostile work environment. See generally Complaint; id. ¶ 26.
On April 24, 2017, Gables filed this motion for partial dismissal. See generally
Defendant’s Amended Motion for Partial Dismissal (“Motion”) (docket entry 12).
Gables maintains that the court lacks subject matter jurisdiction over Wheeler’s
disparate impact and disparate treatment claims. Motion at 2-3. Specifically, Gables
asserts these claims have not been exhausted before the EEOC. Id. Gables further
asserts that Wheeler’s “conclusory assertions are insufficient to satisfy the pleading
requirements of Fed. R. Civ. P. 8 under either a disparate impact or disparate
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treatment theory; and therefore, Plaintiff’s ADEA claim based on such a ‘policy and
practice’ should be dismissed.” Id. at 2. Wheeler failed to respond to the motion.
II. ANALYSIS*
A. Standard for Determination under Rule 12(b)(6)
FED. R. CIV. P. 12(b)(6) authorizes dismissal of a complaint “for failure to
state a claim upon which relief can be granted.” A motion under Rule 12(b)(6)
should be granted only if it appears beyond doubt that the plaintiff could prove no
set of facts in support of his claims that would entitle him to relief. Conley v. Gibson,
355 U.S. 41, 45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521,
524 (5th Cir. 1994) (citations omitted). Before dismissal is granted, the court must
accept all well-pleaded facts as true and view them in the light most favorable to the
non-movant. Capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc., 30
F.3d 627, 629 (5th Cir. 1994) (citation omitted); Norman v. Apache Corporation, 19
F.3d 1017, 1021 (5th Cir. 1994) (citations omitted); Chrissy F. by Medley v.
Mississippi Department of Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991).
*
Because exhaustion of remedies in this case is a condition precedent
rather than a jurisdictional prerequisite to suit, the court will analyze Gables’s motion
under FED. R. CIV. P. 12(b)(6) rather than FED. R. CIV. P. 12(b)(1). See Owen v.
Stmicroelectronics, Inc., No. 3:15-CV-1186-B, 2016 WL 2757368, at *3 (N.D. Tex.
May 12, 2016) (Boyle, J.).
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B. ADEA
The ADEA entitles a party to bring a civil action against an employer for age
discrimination. 29 U.S.C. § 626(c)(1). A condition precedent for bringing suit under
the ADEA is the timely filing and exhaustion of an EEOC charge. Walton-Lentz v.
Innophos, Inc., 476 Fed. Appx. 566, 569 (5th Cir. 2012) (citing 29 U.S.C. § 626(d));
Stith v. Perot Systems Corporation, 122 Fed. Appx. 115, 118 (5th Cir. 2005). The Fifth
Circuit has held that “the ‘scope’ of the judicial complaint is limited to the ‘scope’ of
the EEOC investigation which can reasonably be expected to grow out of the charge
of discrimination.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.
1970); see also Kojin v. Barton Protective Services, 339 F. Supp. 2d 923, 926 (S.D. Tex.
2004) (“Under both Title VII and the ADEA, a lawsuit stemming from EEOC
charges is limited in scope to the EEOC investigation that could reasonably be
expected to grow out of the charge of discrimination.”).
1. Disparate Treatment
Disparate treatment age discrimination involves an employment action that
treats an individual employee worse than other employees based upon the individual
employee’s age. Richardson v. Porter Hedges, LLC, 22 F. Supp. 3d 661, 665 (S.D. Tex.
2014). Liability rests on whether age was in fact the discriminatory motive behind
the employer’s decision to terminate. Rachid v. Jack In The Box, Inc., 376 F.3d 305,
309 (5th Cir. 2004) (citations omitted). A plaintiff can prove age discrimination
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either through direct evidence or through use of the McDonnell Douglas burden
shifting framework, developed to assess claims brought under Title VII of the Civil
Rights Acts of 1964, 42 U.S.C. § 2000e et seq. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000); Rachid, 376 F.3d at 309; see also McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). To establish a prima facie disparate
treatment claim under the ADEA, Wheeler must show that “(1) [he was] within the
protected class; (2) [he was] qualified for the position; (3) [he] suffered an adverse
employment decision; and (4) [he was] replaced by someone younger or treated less
favorably than similarly situated younger employees (i.e., suffered from disparate
treatment because of membership in the protected class).” Smith v. City of Jackson,
Mississippi, 351 F.3d 183, 196 (5th Cir. 2003) (citations omitted), aff’d on other
grounds, 544 U.S. 228 (2005).
In his EEOC charge, Wheeler merely asserts that Gables’s property manager
told him that he should “retire early or quit” and that he was “getting too old” to do
his job. Appendix at APP 5. While the language in the charge was not artfully
crafted, Wheeler did aver that his age was the “but-for” cause of Gables’s decision to
terminate his employment, and he is not required to establish a prima facie case of
disparate treatment age discrimination at this stage in the case. See Owen, 2016 WL
2757368, at *5 (citations omitted). In addition, Wheeler has asserted well-pleaded
facts sufficient to “give the defendant fair notice of what the . . . claim is and the
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grounds upon which it rests.” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555
(2007) (citation omitted)). Thus, Gables’s motion to dismiss Wheeler’s disparate
treatment claim is denied.
2. Disparate Impact
The prima facie elements of a disparate impact discrimination claim are: “(1) a
facially neutral policy; (2) that, in fact, has a disproportionately adverse effect on a
protected class.” See Pacheco v. Mineta, 448 F.3d 783, 791 (5th Cir.) (citation
omitted), cert. denied, 549 U.S. 888 (2006). Wheeler’s EEOC charge neither refers to
a facially neutral (or for that matter any) policy of Gables that disproportionately
impacts older workers. Additionally, as Gables notes, Wheeler “alleges that the dates
of discrimination were confined to a single day -- March 20, 2016, indicating that the
nature of his complaint relates to singular discrete acts related to the termination of
his employment, not the implementation or application of any widespread or
generally applicable policy or practice.” Motion at 3. Consequently, the charge
could not reasonably be expected to lead to a disparate impact investigation. See
Gates v. Lyondell Petrochemical Company, 227 Fed. Appx. 409 (5th Cir. 2007) (per
curiam). Wheeler’s disparate impact claim is therefore dismissed for failure to
exhaust administrative remedies. See Stith, 122 Fed. Appx. at 118. Accordingly,
Gables’s motion for partial dismissal of this claim is granted.
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III. CONCLUSION
For the reasons stated above, Gables’s partial motion to dismiss is DENIED in
part and GRANTED in part.
SO ORDERED.
May 25, 2017.
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A. JOE FISH
Senior United States District Judge
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