Keplar v. Google LLC

Filing 64

MEMORANDUM OPINION AND ORDER granting in part and denying in part 37 Motion to Dismiss. (Ordered by Judge Jane J Boyle on 11/7/2023) (axm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JEFFREY KEPLAR,

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§ CIVIL ACTION NO. 3:22-CV-2281-B
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Plaintiff,
v.
GOOGLE, LLC,
Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Google, LLC (“Google”)’s Motion to Dismiss (Doc. 37)
Plaintiff Jeffrey Keplar’s Second Amended Complaint (Doc. 31). For the following reasons, the Court
GRANTS in part and DENIES in part Google’s Motion to Dismiss. Specifically, the Court
GRANTS the Motion as to Keplar’s claims for sex discrimination and breach of contract but
DENIES the Motion as to Keplar’s claims for age discrimination. The Court DISMISSES Keplar’s
sex discrimination and breach of contract claims WITH PREJUDICE.
I.
BACKGROUND 1
A.

Factual Background
Keplar was hired by Google on July 1, 2019—Keplar was 62 years old when he began working

for Google. Doc. 31, Second Am. Compl., ¶ 5. Keplar was a Director for Google Cloud. Id. Keplar
had “substantial sales education and training and substantial computer-related enterprise sales
management experience.” Id.
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The Court derives the factual background from Keplar’s Second Amended Complaint (Doc. 31).
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In late 2021, Google hired Elizabeth Elkins, a woman around 51 years old, who Keplar alleges
“lacked significant enterprise technology sales or sales management experience.” Id. ¶ 8. While Elkins
was Keplar’s superior, Google required Keplar to train Elkins for her role. Id. Elkins was then further
promoted in December 2021 to a position Google created for Elkins without providing Keplar notice
of the position “so he could compete for it.” Id. ¶¶ 12–13.
Keplar met his sales quota in 2019 and 2020, while also receiving excellent performance
reviews his first two years at Google. Id. ¶ 10. He then struggled to meet his sales quotas in 2021, and
ultimately received a “needs improvement” rating from his supervisor in November 2021. Id. ¶¶
12–13. Google ultimately fired Keplar on April 8, 2022. Id. ¶ 15. Keplar’s supervisor, Elkins,
temporarily performed Keplar’s duties until Google hired Keplar’s permanent replacement—Ivan
Fernandez—a man around 47 years old. Id.
Bob Allison, a man around 59 years old, was Keplar’s original supervisor at Google, until
Google terminated Allison in February 2021. Id. ¶ 6. Google then replaced Allison with a woman
around 53 years old. Id. In addition to Keplar and Allison’s terminations, Keplar also alleges that
Google discriminated against two more men above the age of 60. Id. ¶ 9. He alleges that Jeff Perry,
a man around 63 years old, was terminated by Google and replaced by a woman around 53 years old.
Id. Additionally, Keplar alleges Google demoted David Ooley, a man roughly 61 years old, and
replaced him with a woman around 54 years old. Id. Keplar alleges that both of these men had more
industry experience and knowledge than the women who replaced them. Id.
Lastly, while at Google, Keplar participated in a company stock-benefits plan that he refers
to as simply “the Plans.” Id. ¶ 17. The Plans provided both “cash-based and stock-based awards,”
which the Plans referred to as “Incentive Awards.” Id. ¶ 19(b). These Incentive Awards were given
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to various Google employees subject to a committee’s discretion. Id. This committee, which
administered the Plans, decided which employees received Incentive Awards and “the amount, type
and other terms and conditions of such Incentive Awards.” Id. ¶ 19(c)(4). As part of his
compensation, Keplar received a stock grant in January 2022 that was distinct from the grant he
received when Google hired him. Id. ¶ 14.
Keplar asserts six claims in his Second Amended Complaint: (1) that he was subjected to age
discrimination in violation of the Age Discrimination in Employment Act (“ADEA”); (2) that he
was subjected to sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”); (3) that he was subjected to age discrimination in violation of Chapter 21 of the Texas Labor
Code (“TLC”); (4) that he was subjected to sex discrimination in violation of Chapter 21 of the
TLC; (5) that Google violated Section 1140 of the Employment Retirement Income Security Act
(“ERISA”); and (6) that Google breached a contract regarding the stock grants. Id. ¶¶ 22–27.
B.

Procedural History
Keplar filed his original Complaint on October 12, 2022. Doc. 1, Compl. Thereafter, Google

filed its first Motion to Dismiss for failure to state a claim on December 7, 2022. Doc. 9, Mot.
Dismiss. In response, Keplar filed his First Amended Complaint, which rendered Google’s first
Motion to Dismiss moot. See Doc. 12, Am. Compl.; Doc. 14, Order. Google then moved to dismiss
Keplar’s First Amended Complaint. Doc. 19, Mot. Dismiss. Keplar then sought leave to file a Second
Amended Complaint, which the Court granted—as a result, the Court dismissed Google’s Second
Motion to Dismiss as moot. Doc. 31, Second Am. Compl.; Doc. 32, Order. After Keplar filed his
Second Amended Complaint, Google filed its third 12(b)(6) Motion to Dismiss, which the Court
considers below. See Doc. 37, Mot. Dismiss.
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II.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) authorizes a court
to dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, “the Court must accept all
well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff.” Walker v.
Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019) (internal quotations omitted). But the
“court will not look beyond the face of the pleadings to determine whether relief should be granted
based on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999) (citation omitted).
To survive a motion to dismiss, plaintiffs must plead “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). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
(quoting Twombly, 550 U.S. at 556). When well-pleaded facts fail to meet this standard, “the
complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679
(quotation marks and alterations omitted).

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III.
ANALYSIS
Google’s third Motion to Dismiss argues that Keplar’s age discrimination, sex discrimination,
and breach of contract claims should be dismissed for failing to state a claim. Doc. 37, Def’s Mot.
Dismiss, 10. The Court finds that Keplar has not stated a claim for sex discrimination or breach of
contract. However, the Court concludes he has stated a claim for age discrimination.
A.

Keplar Has Failed to State a Claim for Sex Discrimination
Keplar brings sex discrimination claims under both Title VII and Chapter 21 of the TLC.

Doc. 31, Second Am. Compl., ¶¶ 23, 25. Title VII makes it unlawful for an employer to “discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Likewise, Chapter 21
of the TLC prohibits employers from “discharging an individual” because of their sex. TEX. LAB.
CODE § 21.051(1). The Supreme Court of Texas construes the TLC “to provide for the execution
of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” Ysleta
Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). Therefore, the Court will analyze
the federal and state sex discrimination causes of action together. See Newbury v. City of Windcrest,
991 F.3d 672, 675, 679 (5th Cir. 2021) (analyzing sex discrimination claims under both Title VII and
Chapter 21 of the TLC using only the Title VII framework); see Hobbs v. Ketera Techs., Inc., 865 F.
Supp. 2d 719, 726 (N.D. Tex. 2012)(Lindsay, J.) (“[t]he court determines the same standard applies
to discrimination claims under Title VII and [Texas law].”).
Under Title VII, to state a prima facie case for sex discrimination, plaintiffs must establish
the following elements: (1) they are a member of a protected class; (2) they are qualified for the
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position; (3) they suffered an adverse employment action; and (4) others similarly situated but
outside the protected class were treated more favorably. Alvarado v. Texas Rangers, 492 F.3d 605, 611
(5th Cir. 2007), abrogated on other grounds by Hamilton v. Dallas Cnty., 79 4th 494 (5th Cir. 2023).
Plaintiffs establish the fourth element of their prima facie case—the similarly situated prong—by
identifying a comparator, who is an employee outside of the plaintiffs’ protected class, that the
employer treated more favorably than the plaintiffs in “nearly identical circumstances.” Lee v. Kansas
City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
Google argues that Keplar’s Second Amended Complaint should be dismissed because he
failed to plead a prima facie case for sex discrimination by not identifying a comparator. Doc. 37,
Mot. Dismiss, 4. Keplar, in response, contends that the “nearly identical circumstances” standard
from Lee only applies in cases involving disparate discipline, which he claims is not at issue here. Doc.
39, Resp., 4. Instead, Keplar argues, the fourth element of a prima facie case for sex discrimination
simply requires a showing of “substantial similarity.” Id. at 5 n.4.
However, neither party addressed the correct issue at the motion to dismiss stage. The Fifth
Circuit has held “[a] district court . . . errs by requiring a showing of each prong of the prima facie
test for disparate treatment at the pleading stage.” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d
762, 766 (5th Cir. 2019) (internal quotations omitted). Rather, a plaintiff need only “‘plead sufficient
facts on all of the ultimate elements of a disparate treatment claim to make their case plausible.’” Id.
(emphasis in original) (quoting Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016)).
Disparate treatment claims have two ultimate elements the plaintiff must plead to survive a motion
to dismiss: (1) that the plaintiff suffered an adverse employment action (2) because of their protected
status. Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013). Plaintiffs establish these elements
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when the facts alleged in their complaints “nudge [their] claims across the line from conceivable to
plausible.” Cicalese, 924 F.3d at 768 (quoting Twombly, 550 U.S. at 547)) (further citation omitted).
While a court cannot require plaintiffs prove their prima facie case at the motion to dismiss
stage, courts can reference the prima facie case to help determine “whether a plaintiff has plausibly
alleged the ultimate elements of the disparate treatment claim” when a plaintiff’s claim relies on
circumstantial evidence. Cicalese, 924 F.3d at 767. But the Court will not conduct “a rigorous
factual or evidentiary analysis . . . in response to a motion to dismiss.” Id.
In Cicalese, the Fifth Circuit held that Italian plaintiffs pled sufficient facts to survive a
12(b)(6) motion to dismiss. Id. There, the plaintiffs were Italian professors who alleged that their
supervisors made several derogatory comments regarding Italians, including that “[y]ou should go
back to Italy” and that stupidity was “an Italian thing.” Id. at 764–65 (internal quotations omitted).
The Court held the plaintiffs presented enough facts to make the claim that the adverse employment
actions “were motivated by anti-Italian bias” plausible but acknowledged that it was “a close call.”
Id. at 768.
While plaintiffs need not identify a comparator at the pleading stage, their complaint must
nevertheless allow a reasonable inference of discrimination. For example, the Fifth Circuit held in
Olivarez v. T-Mobile USA, Inc., that a transgender employee did not plead sufficient facts to make
his gender identity discrimination claim plausible. 997 F.3d 595, 600 (5th Cir. 2021). There, the
plaintiff failed to plead any facts that would create “a reasonable inference that T-Mobile terminated
Olivarez because of gender identity.” Id. Additionally, the plaintiff did not allege any facts regarding
a comparator that suggested the defendant treated any similarly situated employees outside the
plaintiff’s protected class differently. Id.
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Thus, the relevant inquiry is whether Keplar has alleged facts that plausibly show Google fired
him because of his sex. The Court concludes that Keplar has not done so. The only fact in the
pleadings regarding sex discrimination that directly involves Keplar is his allegation that Google
required him to train Elizabeth Elkins. Doc. 31, Second Am. Compl., ¶ 8. Keplar argues that being
required to train a female employee is circumstantial evidence of sex discrimination, yet he provides
no support for this assertion. See Doc. 39, Resp., 6. Keplar also argues that he was replaced by a
woman because Elkins temporarily performed his responsibilities. Doc. 39, Resp., 6 n.5. However,
Keplar indicates that Google ultimately replaced him with a man. Doc. 31, Second Am. Compl., ¶
15. These allegations do not make it plausible that Google fired Keplar because of his sex. Nor has
Keplar alleged any facts suggesting that his supervisors had any bias towards men in a manner similar
to that alleged in Cicalese. See 924 F.3d at 764–65. For example, Keplar did not allege that his
supervisors made derogatory comments regarding his protected characteristic. See id. (noting it was
“a close call” whether it was plausible the adverse employment actions were because of anti-Italian
bias). Without alleging any similar facts, Keplar has failed to meet his burden to survive a motion to
dismiss.
Keplar also argues his Second Amended Complaint shows Google has a pattern of replacing
male employees with female employees. Doc. 39, Resp., 5 n.4. For example, Keplar’s original
supervisor, Bob Allison, was fired and replaced by a woman. Doc. 31, Second Am. Compl., ¶ 6. Jeff
Perry, a man around 63 years old, and David Ooley, a man around 61 years old, were both replaced
by women around 53 or 54 years old. Id. ¶ 9. These facts, however, fail to make it plausible that
Google terminated Keplar because of his sex. These facts are unrelated to his termination because
they fail to show he was part of a larger pattern. Unlike Perry, Allison, and Ooley, Google did not
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hire a female employee to replace Keplar. Doc. 31, Second Am. Compl., ¶ 15; Doc. 39, Resp., 8 n.6.
Keplar was replaced by a man; under these circumstances, allegations that other employees were
replaced by women do not, by themselves, make it plausible that Keplar was fired because he was a
man. Additionally, Keplar does not allege any facts suggesting that Google fired these individuals
because they were men. Simply replacing male employees with female employees (or vice versa) does
not move Keplar’s sex discrimination claim from conceivable to plausible. See Cicalese, 924 F.3d at
767 (noting that the adverse employment action occurred because of the plaintiff’s protected status).
Notably, Keplar refers to Perry and Ooley as two examples of “other instances of apparent age
discrimination” in his Second Amended Complaint, and offers no facts, other than the sex of each
person involved, to suggest Perry and Ooley were replaced because they were men. Doc. 31, Second
Am. Compl., ¶ 9.
Alternatively, Keplar has not sufficiently pled his sex discrimination claim by identifying any
comparators that Google treated differently than him. As discussed above, courts can reference the
prima facie case to help determine whether a plaintiff pleaded the ultimate elements of a claim. See
Cicalese, 924 F.3d at 767. Here, Keplar would eventually be required to prove that Google treated
him “less favorably than others outside of his protected class.” See Olivarez, 997 F.3d at 600
(quotation and emphasis omitted). Keplar has nonetheless failed to identify anyone outside of his
protected class who is similarly situated to him or plead facts that suggest a comparator exists. Keplar
has not pled any facts suggesting other female employees at his level in Google failed to meet their
sales quotas or had similar negative performance reviews, let alone that any such individuals were
not fired. Thus, Keplar has likewise failed to state a claim using this theory.

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While a plaintiff need not prove their prima facie case for disparate treatment at the motion
to dismiss stage, they do need to plead facts that make it plausible they suffered the adverse
employment action because of their sex. Cicalese, 924 F.3d at 766–67. The facts offered by Keplar
fail to accomplish this. For these reasons, the Court finds that Keplar has failed to state a claim and
grants the motion to dismiss his sex discrimination claims.
B.

Keplar Has Failed to State a Claim for Breach of Contract
Google also argues that Keplar’s state law breach of contract claim should be dismissed for

failure to state a claim. Doc. 37, Mot. Dismiss, 7. As part of Keplar’s employment agreement with
Google, he participated in the Plans, which provided benefits, including stock grants, to Google’s
employees. Doc. 31, Second Am. Compl., ¶ 17. Keplar’s only argument supporting his breach of
contract claim is that Google prevented him from fulfilling a condition precedent by terminating
him—this means, Keplar contends, that he is entitled to the stock grants that he would have
received had Google not terminated his employment. See Doc. 31, Second Am. Compl., ¶ 19(d);
Doc. 39, Resp., 11–12. Therefore, for the breach of contract claim to survive the motion to dismiss,
Keplar must plausibly plead that his employment agreement had a condition precedent. See Twombly,
550 U.S. at 556. The Court finds that Keplar has failed to do so.
“A condition precedent may be either a condition to the formation of a contract or to an
obligation to perform an existing agreement.” Allstate Ins. Co. v. Irwin, 627 S.W.3d 263, 270 (Tex.
2021) (quotation omitted). “A condition precedent to an obligation to perform . . . must occur before
there is a right to immediate performance and before there is a breach of contractual duty.” Id.
(quotation omitted). Texas law generally disfavors recognizing conditions precedent in contractual
provisions due to their harshness. Criswell v. Eur. Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 948
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(Tex. 1990). Examples of phrases indicating a disputed contract contains a condition precedent
include “if,” “provided,” and “on condition that.” Criswell, 792 S.W.2d at 948.
Ultimately, the terms of the Plans do not create any underlying obligation regarding stock
grants had Keplar remained employed by Google. The terms of the Plans give the committee
administering them significant discretion when deciding who receives benefits. See Doc. 31, Second
Am. Compl., ¶ 19(c)(4). In other words, Keplar was not guaranteed any stock or other type of grant
had he remained employed at Google. Because the Plans did not create any underlying obligation,
Keplar cannot support his breach of contract claim. See Allstate, 627 S.W.3d at 270.
However, even if the Plans created an underlying obligation, the Court would still find that
there was not a condition precedent. As discussed above, Keplar’s breach of contract claim relies on
the theory that Google prevented him from fulfilling a condition precedent by terminating him. See
Doc. 31, Second Am. Compl., ¶ 19(d) (“a claim for breach of contract based on the forfeiture of
stock to Plaintiff based solely on his no longer being employed by Defendant”). Keplar fails to point
to any language in “the Plans” that would create the asserted condition precedent. Because the only
contractual language Keplar references in the Second Amended Complaint was from the terms
governing the Plans, the Court will look to these terms to decide if there was a condition precedent.
The Plans do not include any conditional language such as “if,” “provided,” or “on condition
that.” See id. ¶ 19(c)(4). Instead, it simply says that the committee in charge of administering the
Plans “shall . . . from time to time, designate those employes and consultants of the Company . . .
who shall be granted Incentive Awards under the Plan and the amount, type and other terms and
conditions of such Incentive Awards.” Id. These discretionary terms are in stark contrast with the

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“if,” “provided,” or “on condition that” language provided in Criswell and fail to create a condition
precedent. See 792 S.W.2d at 948.
Because Keplar fails to allege that the Plans contain contractual language creating an
underlying obligation or the necessary conditional language to support finding a condition precedent,
the Court concludes Keplar has failed to state a breach of contract claim upon which relief can be
granted. See Criswell, 792 S.W.2d at 948.
C.

Keplar Has Stated a Claim for Age Discrimination
Lastly, Keplar brings age discrimination claims under both the ADEA and Chapter 21 of the

TLC. Doc. 31, Second Am. Compl., ¶¶ 22, 24. The ADEA makes it "unlawful for an employer . .
. [to] 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). Similarly, the
TLC makes it unlawful to "discharge[] an individual" because of their age. TEX. LAB. CODE §
21.051(1). Because of the similarities between the two statutes, the Court will treat both causes of
action together for their prima facie cases. See King v. Stevenson Beer Distrib. Co., 11 F. Supp. 3d 772,
787 (S.D. Tex. Mar. 27, 2014) ("The requirements for establishing a prima facie discrimination claim
under [Texas law] mirror those of the ADEA.") (emphasis in original) (citation omitted); see also
Norsworthy v. Houston Indep. Sch. Dist., 70 F.4th 332, 337 (5th Cir. 2023) (listing the same elements
for a prima facie case of age discrimination under both the ADEA and Chapter 21 of the TLC).
To establish a prima facie case of age discrimination under the ADEA, a plaintiff must show:
"(1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class
at the time he suffered the adverse employment action; and (4) he was either (i) replaced by
someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged
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because of his age." Goudeau v. Nat'l Oilwell Varco, LP, 793 F.3d 470, 474 (5th Cir. 2015) (quotation
omitted).
Keplar pleaded sufficient facts on each element of his prima facie case for age discrimination.
See Cicalese, 924 F.3d at 766 (quotation omitted). First, Keplar suffered an adverse employment
action because Google fired him. See McCoy v. City of Shreveport, 492 F.3d 551, 559 (noting that
discharging an employee is an adverse employment action). Second, Keplar pleaded sufficient facts
to make it plausible that he was qualified for the position. He had significant sales and management
experience before working at Google. Doc. 31, Second Am. Compl., ¶ 5. Keplar also received strong
performance evaluations and met his sales quotas his first two years at Google. Id. Third, Keplar pled
sufficient facts establishing he was within a protected class under the ADEA when he was fired. The
ADEA prohibits discrimination against anyone, on the basis of age, who is more than 40 years old.
29 U.S.C. § 631(a)(1). He has alleged he was 64 years old when Google fired him. See id. ¶¶ 5, 15.
Fourth, Keplar alleged he was replaced by someone younger than him. See Rachid v. Jack In
The Box, Inc., 376 F.3d 305, 313 (5th Cir. 2004). The Supreme Court has said "an inference [of age
discrimination] cannot be drawn from the replacement of one worker with another worker
insignificantly younger." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996). Instead,
the replacement must be "substantially younger than the plaintiff" to support an inference of age
discrimination. Id. Keplar alleges he was replaced by a 47-year-old man. Doc. 31, Second Am.
Compl., ¶ 14. Keplar was around 64 years old when Google terminated him. See id. ¶¶ 5, 15. So,
Keplar alleged that his replacement was 17 years younger than him, which is sufficient to establish
he was replaced by someone substantially younger than him. Doc. 31, Second Am. Compl., ¶¶ 5,
14–15; see Rachid v. Jack In The Box, 376 F.3d 305, 313 (5th Cir. 2004) (noting, without deciding,
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that an age difference of five years presents a close question of whether a replacement is "substantially
younger"); see Young v. Harris Health Care, Inc., 226 F.3d 643, at *3 (5th Cir. 2000)
(unpublished)(determining that ten years was enough of an age difference to support a "substantially
younger" finding); see Irvin v. Ascension Par. Sch. Bd., No. CV 15-518-JWD-EWD, 2017 WL 354854,
at *1 (M.D. La. Jan. 24, 2017) (finding that "the eight and one quarter year difference between
Plaintiff and Yates satisfies [the substantially younger] standard."). Therefore, Keplar pleaded
sufficient facts to establish all four elements of his prima facie case for age discrimination.
Google argues that Keplar "simply [made] out a formulaic recitation of the elements of his
age discrimination claim." Doc. 42, Reply, 8. However, Keplar did not simply recite the elements of
an age discrimination claim—he pled specific facts that established each element of his prima facie
case, which is more than what is required at the pleadings stage. See Cicalese, 924 F.3d at 766. Keplar
only needs to plead sufficient facts to make his age discrimination claims plausible—he has met this
requirement. See Haskett v. T.S. Dudley Land Co., 648 F. App’x 492, 495–97 (5th Cir. 2016)
(unpublished) (vacating the district court dismissing the plaintiff's ADEA claim because the plaintiff
stated a prima facie case for age discrimination against the defendant).
Because Keplar has more than met his pleading requirements for his age discrimination claims
under the ADEA and the TLC, the Court denies Google's Motion to Dismiss Keplar's age
discrimination claims.
D.

The Court Will Not Grant Keplar Leave to Amend
“[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies

before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the
court that they are unwilling or unable to amend in a manner that will avoid dismissal.” Great Plains
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Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). District courts give
plaintiffs leave to amend their complaints “when justice so requires.” Fed. R. Civ. P. 15(a)(2). This
liberal standard, however, is “tempered by the necessary power of a district court to manage a case.”
Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003).
When deciding whether to give parties leave to amend their complaints, district courts
consider the following factors: “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party, and futility of amendment.” Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998)
(quotation and emphasis omitted). Granting leave to amend a complaint is futile if “the amended
complaint would fail to state a claim upon which relief could be granted.” Stripling v. Jordan Prod. Co.,
LLC, 234 F.3d 863, 873 (5th Cir. 2000).
While Keplar has not requested leave to amend his complaint, the Court will nevertheless
consider whether to grant him leave to do so. Keplar has had three opportunities to state a claim for
sex discrimination, and he has had two opportunities to state a claim for breach of contract. While
the Court did not address whether Keplar’s earlier complaints contained sufficient facts to survive
a motion to dismiss, Keplar did receive notice of potential deficiencies from Google’s first two
motions to dismiss. Despite receiving notice of potential deficiencies and having multiple
opportunities to amend his complaint, he still was unable to state a claim for sex discrimination and
breach of contract. The Court, therefore, concludes that any further amendments would also fail to
state a claim. For this reason, the Court determines it would be futile to allow him to amend his
complaint for a third time. Therefore, the Court dismisses these claims with prejudice.

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IV.
CONCLUSION
For the reasons explained above, the Court GRANTS in part and DENIES in part Google’s
Motion to Dismiss. Specifically, the Court DENIES the Motion as to Keplar’s claims for age
discrimination. The Court GRANTS the Motion as to Keplar’s claims for sex discrimination and
breach of contract. Keplar’s sex discrimination claim under Title VII, his sex discrimination claim
under Chapter 21 of the TLC, and his breach of contract claim are DISMISSED WITH
PREJUDICE.
SO ORDERED.
SIGNED: November 7, 2023.

______________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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