Caldwell v. Enterprise Products Company

Filing 14

MEMORANDUM AND OPINION entered: Enterprise Products's motion to dismiss, (Docket Entry No. 11), is granted. The dismissal is without prejudice and with leave to amend, by June 24, 2016.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DANA CALDWELL,
Plaintiff,
v.
ENTERPRISE PRODUCTS COMPANY,
Defendant.

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June 07, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-15-3463

Memorandum and Opinion
I.

Background
This case involves claims under the federal Age Discrimination in Employment Act, 29

U.S.C. § 621 et seq., and the Texas Commission on Human Rights Act, TEX. LABOR CODE § 21.001
et seq. Dana Caldwell sued her former employer, the Enterprise Products Company, alleging that
she was fired because of her age, in violation of the federal and state age-discrimination statutes.
(Docket Entry No. 10).
Caldwell’s complaint includes little factual information. She alleges that Enterprise Products
employed her and that she was over the age of 40. (Id. at 1-2). Her position at Enterprise Products
and period of employment are not clear. Nor is it clear when the events giving rise to her claim took
place. (Id.). She alleges that Enterprise Products twice approached her about accepting either a
retirement or severance package to try to force her to resign because of her age. (Id. at 3). She
alleges that she refused to accept the first package. At some unspecified later date, Enterprise
Products terminated her employment and again offered her a retirement or severance package. (Id.).
It is not clear if she accepted this second package. (Id.). Caldwell alleges that the second package

was worth less than the first package Enterprise Products had offered. (Id.).
Caldwell also alleges that when she was terminated, Enterprise Products did not replace her
with a new employee. (Id.). Instead, the company assigned her duties to an existing employee who
was younger than Caldwell. (Id.).
Caldwell first sued in Harris County District Court, asserting what appears to be a claim for
breach of an employment contract. (Docket Entry No. 1, Ex. A). She filed an amended petition in
that court, adding claims under the federal Age Discrimination in Employment Act and the
“comparable provisions of the Texas Labor Code.”1 Enterprise Products timely removed based on
federal-question jurisdiction. (Docket Entry No. 1). Caldwell amended in July of 2015. (Docket
Entry No. 10). The amended complaint asserts only the federal and state age-discrimination claims.
(Id.).
Enterprise Products has moved to dismiss the amended complaint because Caldwell does not
allege that someone outside the protected group or significantly younger than her replaced her and
has not alleged sufficient facts to meet the pleading requirements for her age-discrimination claim.
(Id.). Caldwell responded, and Enterprise Products replied. (Docket Entries No. 12, 13).
II.

The Legal Standard for a Motion to Dismiss
A pleading is deficient and may be dismissed under Rule 12(b)(6) if a plaintiff fails “to state

a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) is read in
conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint must contain “enough facts

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Caldwell does not specify the Texas Labor Code subsection that provides the basis for her claim in either her
state court petition or federal complaint. The court assumes that Caldwell is referring to the Texas Commission on
Human Rights Act, TEX. LABOR CODE § 21.001 et seq.

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to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rule 8 “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “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. (citing Twombly, 550 U.S. at
556). “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. (citing Twombly, 550 U.S. at 556).
To withstand a Rule 12(b)(6) motion, a “complaint must allege ‘more than labels and
conclusions,’” and “‘a formulaic recitation of the elements of a cause of action will not do.’” Norris
v. Hearst Trust, 500 F.3d 454, 464 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,
556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557). “To survive a Rule
12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must
provide the plaintiff’s grounds for entitlement to relief—including factual allegations that when
assumed to be true ‘raise a right to relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d
397, 401 (5th Cir. 2007) (footnote omitted) (quoting Twombly, 550 U.S. at 555). “Conversely,
‘when the allegations in a complaint, however true, could not raise a claim of entitlement to relief,
this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money
by the parties and the court.’” Id. (quoting Twombly, 550 U.S. at 558).
When a plaintiff’s complaint fails to state a claim, the court should generally give the
plaintiff a chance to amend the complaint under Rule 15(a) before dismissing the action with

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prejudice, unless it is clear that to do so would be futile. See Great Plains Trust Co. v. Morgan
Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) (“[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.”). However, a plaintiff should be denied
leave to amend a complaint if the court determines that “the proposed change clearly is frivolous or
advances a claim or defense that is legally insufficient on its face.” 6 CHARLES A. WRIGHT, ARTHUR
R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1487 (2d ed. 1990); see also
Ayers v. Johnson, 247 F. App’x 534, 535 (5th Cir. 2007) (“‘[A] district court acts within its
discretion when dismissing a motion to amend that is frivolous or futile.’” (quoting Martin’s Herend
Imports, Inc. v. Diamond & Gem Trading U.S. of Am. Co., 195 F.3d 765, 771 (5th Cir. 1999))).
III.

Analysis
The prima facie elements of a federal Age Discrimination in Employment Act claim are that

the plaintiff: 1) is within the protected class; 2) is qualified for the position; 3) suffered an adverse
employment decision; and 4) was replaced by someone younger or treated less favorably than
similarly situated younger employees.2 Leal v. McHugh, 731 F.3d 405, 410-11 (5th Cir. 2013)
(citing Smith v. City of Jackson, 351 F.3d 183, 196 (5th Cir. 2003)).
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The same legal standards apply to age-discrimination and retaliation claims under the Texas statute and the
federal Age Discrimination in Employment Act. See Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.
1991), overruled on other grounds by In re United Servs. Auto. Ass’n, 307 S.W.3d 299 (Tex. 2010); Texas Parks &
Wildlife Dep’t v. Dearing, 150 S.W.3d 452, 461 (Tex. App.—Austin 2004, no pet.); Miller v. Raytheon Co., 716 F.3d
138, 144 (5th Cir. 2013); see also Evans v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001) (applying Title VII
retaliation standard to retaliation claim under the Texas act). The Texas statute is construed to be congruent with federal
antidiscrimination laws. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012) (“[O]ne
of the purposes of the TCHRA is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964
. . . .” (quotations omitted)); Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012) (same). An exception, not
applicable here, is that the federal age-discrimination statute applies a “but for” causation standard, while the Texas
statute applies a “motivating factor” standard. Jackson v. Host Int'l, Inc., 426 F. App'x 215, 219 (5th Cir. 2011).

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The focus of the motion to dismiss is on the fourth element. An employee who alleges
discharge because of age can establish the fourth element by showing either: 1) replacement by
someone outside the protected class or significantly younger than the employee, or 2) discharge
because of age. Rachid v. Jack In the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004); Palasota v.
Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003); see also Keller v. Coastal Bend Coll., 629
F. App'x 596, 600 (5th Cir. 2015) (citing Rachid). An employee who relies on the second ground
must show that the “employer intended to discriminate in reaching the decision at issue.” Palasota,
342 F.3d at 576.
Caldwell concedes in her amended complaint and in her response to the motion to dismiss
that she was not replaced. Her duties were reassigned to a younger employee. (Docket Entry No.
10 at 3). Reassignment of duties to an existing employee is not replacement by a younger person.
Griffin v. Kennard Indep. Sch. Dist., 567 F. App’x 293, 294 (5th Cir. 2014) (unpublished); Rexses
v. Goodyear Tire & Rubber Co., 401 F. App’x. 866, 868 (5th Cir. 2010) (unpublished); Dulin v.
Dover Elevator Co., 139 F.3d 898 (5th Cir. 1998) (unpublished); Pierson v. Quad/Graphics Printing
Corp., 749 F.3d 530, 537 (6th Cir. 2014); Smith v. F.W. Morse & Co., 76 F.3d 413, 423 (1st Cir.
1996). Because Caldwell cannot show replacement, she must plead that Enterprise intended to
discriminate against her because of her age. Palasota, 342 F.3d at 576.
Caldwell’s only factual allegation in support of her intentional-discrimination claim is that
the “[d]efendant . . . uttered or published statements to plaintiff that her advanced age was such that
she should consider accepting a retirement package or separation package to the end of encouraging
plaintiff to cease her employment on account of her age.” (Docket Entry No. 10 at 3). The Fifth
Circuit has held that a manager’s suggestion to an employee within the protected class to consider

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a retirement or severance package is not evidence of age discrimination, even if the manager refers
to an employee’s age in making that suggestion. See Bodenheimer v. PPG Indus., Inc., 5 F.3d 955,
956 (5th Cir. 1993); E.E.O.C. v. Texas Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996);
Kilgore v. Brookeland Indep. Sch. Dist., 538 F. App'x 473, 476 (5th Cir. 2013); see also Moss v.
BMC Software, Inc., 610 F.3d 917, 929 (5th Cir. 2010) (facially neutral age-related comments are
not, by themselves, probative of discriminatory intent (citing Texas Instruments, 100 F.3d at 1181)).
In Bodenheimer, an 55-year old employee was fired as part of a reduction in his employer’s
workforce and replaced by a younger employee. The employer moved for summary judgment and
offered the superior management skills of the employee’s replacement and the need to reduce the
size of its workforce as nondiscriminatory justifications. The supervisor conducting the job
termination offered the employee a retirement package, saying, “I hope when I get to your age,
somebody does the same thing for me.” Bodenheimer, 5 F.3d at 958. In determining if there was
a factual dispute material to determining whether the employer’s justifications were pretextual, the
court held that this comment “sheds absolutely no light on the central issue before us: whether [the
employee’s] age was a factor in [the supervisor’s] decision to terminate him.” Instead, the comment
was a “casual, facially-neutral remark.” Id.
In Texas Instruments Inc., an employee over 40 was terminated as part of a reduction in his
employer’s workforce and replaced by a younger person. The employer offered the employee’s poor
work performance and the need to reduce the size of the workforce as nondiscriminatory reasons for
selecting the employee as among those included in the reduction. As in Bodenheimer, the employee
argued pretext by pointing to comments in his termination meeting. In that meeting, the supervisor
stated, “it’s just that you’ve reached that age and years of service that we can bridge you to

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retirement.” Texas Instruments Inc., 100 F.3d at 1178. The Fifth Circuit held that this statement
“does not demonstrate age bias” because it “simply recognized a fact concerning [the employee’s]
seniority, an observation which did not imply seniority was the reason for discharge.” Id. at 1181.
In Kilgore, an employee over 40 was terminated as part of a reduction in the employer’s
workforce caused by anticipated budget cuts. Although the budget cuts did not occur, the employer
replaced the employee with a significantly younger person. Kilgore, 538 F. App'x at 474-75. The
employer offered not only the anticipated budget cuts as a nondiscriminatory reason for the
termination and the employee’s own disciplinary history as the nondiscriminatory reason for
replacement with a younger employee. As in Bodenheimer and Texas Instruments, the employee
sought to prove that these reasons were a pretext for age discrimination by pointing to the comments
in his termination meeting. Id. at 476. During the termination meeting, the employer told the
employee that because of his age, he was “eligible for retirement.” Id. at 474-475. The Fifth
Circuit held that the statement was not, by itself, probative of intentional discrimination because the
employer’s “‘statement simply recognized a fact concerning’ [the employee’s] eligibility, ‘an
observation which did not imply’ that his eligibility ‘was the reason for discharge.’” Id. (quoting
Texas Instruments, 100 F.3d at 1181).
Caldwell does not allege what was said to her when the retirement package was offered.
Instead, she conclusorily alleges that the “[d]efendant . . . uttered or published statements to plaintiff
that her advanced age was such that she should consider accepting a retirement package or
separation package. ” (Docket Entry No. 10 at 3). Even assuming that this is sufficiently specific,
the cases make clear that, standing alone, a comment that a retirement or severance package may
be advantageous to an employee because of age does not allege facts relevant to, or that are more

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likely to make plausible, her claim that the employee’s termination was discriminatory. See
Bodenheimer, 5 F.3d at 958; Texas Instruments, 100 F.3d at 1181; Kilgore, 538 F. App'x at 476.
Caldwell argues that these cases are distinguishable because they arise in the summary
judgment context, not in a motion to dismiss. These Fifth Circuit cases, however, make clear that
statements making a similar connection between an employee’s age and a retirement package,
standing alone, are insufficient to allege discrimination. See Bodenheimer, 5 F.3d at 958 (“The
comment sheds absolutely no light on . . . whether [the employee’s] age was a factor in [the]
decision to terminate him”); Texas Instruments, 100 F.3d at 1181 (comment was “not probative of
whether [the employer’s] decision to terminate [the employee] was motivated by age
discrimination”); Kilgore, 538 F. App'x at 477 (“[Employer’s] comment concerning [employee’s]
retirement eligibility, . . . by itself, is an insufficient basis for a reasonable jury to conclude that
Kilgore's age more likely motivated [the employer’s] decision to discharge him than [the] proffered
reasons.”). Because the conclusory alleged comment in the amended complaint is at least
insufficient to allege discrimination, the allegation does nothing to raise Caldwell’s right to relief
beyond speculative.
Caldwell’s complaint is dismissed because she has not sufficiently alleged that Enterprise
Products discriminated against her on the basis of her age. The dismissal is without prejudice.
Caldwell may amend no later than June 24, 2016, within the limits of Rule 11 of Federal Rules of
Civil Procedure.

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IV.

Conclusion
Enterprise Products’s motion to dismiss, (Docket Entry No. 11), is granted. The dismissal

is without prejudice and with leave to amend, by June 24, 2016.
SIGNED on June 7, 2016, at Houston, Texas.

______________________________________
Lee H. Rosenthal
United States District Judge

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