Estell v. Strive, Inc, No. 2:2016cv02278 - Document 10 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting 6 Strive's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). This dismissal is WITHOUT PREJUDICE and with leave to file an amended complaint within twenty-one (21) days of this order. Strive's motion for summary judgment on Estell's ADEA claim is DENIED AS MOOT.. Signed by Judge Sarah S. Vance on 7/13/16. (jjs)
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Estell v. Strive, Inc Doc. 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GERTRUDE ESTELL CIVIL ACTION VERSUS NO: 16-2278 STRIVE, INC. SECTION: R ORD ER AN D REASON S Before the Court is defendant Strive, Inc.'s m otion to dism iss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for sum m ary judgm ent.1 Because plaintiff' com plaint does not plead facts that would entitle her to relief, the Court grants the m otion under Rule 12(b)(6). I. BACKGROU N D On March 16, 20 16, pro se plaintiff Gertrude Estell filed a com plaint against her form er em ployer, Strive, Inc., apparently attem pting to charge Strive with discrim inatory discharge based on age, in violation of the Age Discrim ination Act of 1967 ("ADEA").2 To support her claim , Estell alleges the following: (1) she "was dism issed from Strive, Inc. due to her age"; 3 (2) she was 1 R. Doc. 6. 2 R. Doc. 1. 3 Id. at 1 ¶ 1. Dockets.Justia.com 58 years old at the tim e of dism issal; 4 and (3) "the parties involved in [her] dism issal [were] under the age of 50 ."5 Estell seeks dam ages for lost wages and em otional distress.6 Strive m oves to dism iss Estell's ADEA claim under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for sum m ary judgm ent.7 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged." Id. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239 (5th Cir. 4 Id. at 2 ¶ 3. 5 Id. at 1 ¶ 2. 6 Id. at 2 ¶ 4. 7 R. Doc. 6. 2 20 0 9). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim . Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, the claim m ust be dism issed. Tw om bly , 550 U.S. at 555. Finally, courts construe briefs subm itted by pro se litigants liberally, and a court will "apply less stringent standards to parties proceeding pro se than to parties represented by counsel." Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam ); see also see Abdul– Alim Am in v. Universal Life Ins. Co. of Mem phis, Tenn., 70 6 F.2d 638, 640 n. 1 (5th Cir. 1983). This does not m ean, however, that a court "will invent, out of whole cloth, novel argum ents on behalf of a pro se plaintiff in the absence of m eaningful, albeit im perfect, briefing." Jones v. Alfred, 353 Fed. App' x 949, 951– 52 (5th Cir. 20 0 9). 3 III. D ISCU SSION A. Age D is crim in atio n Estell does not explain the legal grounds for her claim against Strive. In light of Estell's pro se status, however, the Court liberally construes her com plaint as asserting a claim for age discrim ination in violation of the ADEA. See Nerren v. Livingston Police Dep't, 86 F.3d 469, 472 (5th Cir. 1996) (explaining that when a litigant is proceeding pro se, her allegations and briefs are construed m ore perm issively). Strive contends that Estell's ADEA claim fails because her com plaint does not allege facts that plausibly suggest that age was the but-for cause of Estell's dism issal. The ADEA provides that "it shall be unlawful for an em ployer . . . to discharge any individual or otherwise discrim inate against any individual with respect to his com pensation, term s, conditions, or privileges of em ploym ent, because of such individual's age." 29 U.S.C. § 623(a)(1). To prevail on an age discrim ination claim , a plaintiff "m ust prove by a preponderance of the evidence . . . that age was the 'but-for' cause of the challenged em ployer decision." Moss v. BMC Softw are, Inc., 610 F.3d 917, 922 (5th Cir. 20 10 ) (quoting Gross v. FBL Fin.Servs., Inc., 557 U.S. 167, 176 (20 0 9)). In this way, an ADEA claim differs from a claim under Title VII of the Civil Rights Act of 1964, which requires only proof that the prohibited basis--i.e., race, color, 4 religion, sex, or national origin--was a "m otivating factor" in the challenged em ploym ent decision. See Gross, 557 U.S. at 174 ("Unlike Title VII, the ADEA's text does not provide that a plaintiff m ay establish discrim ination by showing that age was sim ply a m otivating factor."). "A plaintiff can dem onstrate age discrim ination in two ways, either through: direct evidence or by an indirect or inferential m ethod of proof." Rachid v. Jack In The Box, Inc., 376 F.3d 30 5, 30 9 (5th Cir. 20 0 4). When, as in this case, a plaintiff relies on circum stantial evidence, she m ust present a prim a facie case, at which point the burden shifts to the em ployer to provide a legitim ate, non-discrim inatory reason for the em ploym ent decision. W illis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 20 0 6). To establish a prim a facie case of discrim inatory discharge based on age, a plaintiff m ust show that: (1) she was discharged; (2) she was qualified for the position; (3) she was within the protected class at the tim e of discharge; and (4) she was either (i) replaced by som eone outside the protected class, (ii) replaced by som eone younger, or (iii) otherwise discharged because of her age. Berquist v. W ashington Mut. Bank, 50 0 F.3d 344, 349 (5th Cir. 20 0 7); Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 20 0 3). Despite the dem anding but-for standard of proof, "[a] plaintiff need not m ake out a prim a facie case of discrim ination in order to survive a Rule 5 12(b)(6) m otion to dism iss for failure to state a claim ." Haskett v. T.S. Dudley Land Co., No. 14-41459, 20 16 WL 2961790 , at *2 (5th Cir. May 20 , 20 16); see Flores v. Select Energy Servs., L.L.C., 486 F. App'x 429, 432 (5th Cir. 20 12) (sam e); see also Sw ierkiew icz v. Sorem a N .A., 534 U.S. 50 6, 510 (20 0 2) ("The prim a facie case under McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] is an evidentiary standard, not a pleading requirem ent."). Like other plaintiffs in federal court, however, an ADEA plaintiff--including a plaintiff proceeding without counsel--m ust still plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)); see also Johnson v. Atkins, 999 F.2d 99, 10 0 (5th Cir. 1993) ("Even a liberally construed pro se civil rights com plaint, however, m ust set forth facts giving rise to a claim on which relief m ay be granted."). In evaluating whether this standard has been m et, courts m ay consider the elem ents of a prim a facie case to ensure that the plaintiff has "allege[d] facts sufficient to state all the elem ents of her claim ." Puente v. Ridge, 324 F. App'x 423, 428 (5th Cir. 20 0 9) (internal quotation om itted); see also Haskett, 20 16 WL 2961790 , at *2 ("[T]he elem ents of a prim a facie case are helpful . . . in fram ing what constitutes an ADEA claim ."). 6 Even liberally construed, the threadbare allegations in Estell's complaint are insufficient to state a plausible claim for age discrim ination. Estell alleges that she "was dism issed from Strive, Inc. due to her age,"8 that she was 58 years-old at the tim e dism issal,9 and that the individuals "involved in" her dism issal were under the age of 50 . To begin, Estell's allegation that Strive term inated her em ploym ent "due to her age" is "a legal conclusion that the court is not required to accept and does not suffice to prevent a m otion to dism iss." Richards v. JRK Prop. Holdings, 40 5 Fed. App'x 829, 831 (5th Cir. 20 10 ). Moreover, while the com plaint suggests the presence of individuals younger than Estell, it does not explain who the younger persons were or what involvem ent they had in Strive's em ploym ent decision. Thus, Estell pleads no facts indicating that she was replaced by a younger person or otherwise discharged because of her age. See Davis v. Mem 'l Med. Ctr. of E. Texas, 129 F.3d 60 9 (5th Cir. 1997) (affirm ing Rule 12(b)(6) dism issal when plaintiff did not "claim that she was replaced by som eone younger or otherwise discharged because of her age"); and Haskett v. Cont'l Land Res., LLC, No. CIV.A. G-14-0 281, 20 15 WL 1419731, at *10 (S.D. Tex. Mar. 27, 20 15) (dism issing ADEA com plaint for failure to state a claim when plaintiff failed to plead facts 8 R. Doc. 1 at 1 ¶ 1. 9 Id. at 2 ¶ 3. 7 dem onstrating any "connection between Plaintiff's non-hiring and his age"); cf. Leal v. McHugh, 731 F.3d 40 5, 413 (5th Cir. 20 13) (holding that plaintiffs stated a plausible ADEA claim by alleging that they were in a protected class, they were qualified for the position in question, they were not selected, a substantially younger person was selected, and one of the deciding officials stated that the departm ent needed "new blood"). Accordingly, the Court finds that Estell fails to state a claim , and her ADEA claim for discrim inatory discharge based on age m ust be dism issed. Because the Court grants Strive's m otion to dism iss under Rule 12(b)(6), Strive's alternative m otion for sum m ary judgm ent is denied as m oot. B. Le ave to Am e n d As the Fifth Circuit holds, "district courts should not dism iss pro se com plaints pursuant to Rule 12(b)(6) without first providing the plaintiff an opportunity to am end, unless it is obvious from the record that the plaintiff has pled his best case." Hale v. King, 642 F.3d 492, 50 3 (5th Cir. 20 11); see also Pena v. United States, 157 F.3d 984, 987 n. 3 (5th Cir. 1998) ("Because [Rule 12(b)(6)] dism issals [of pro se com plaints] are disfavored, a court should grant a pro se party every reasonable opportunity to am end."). Although Estell does not expressly request leave to am end her com plaint, she does provide additional factual allegations to support her ADEA claim s in her opposition to 8 Strive's m otion to dism iss.10 The Court does not consider allegations raised for the first tim e in an opposition brief. See Goodw in v. Hous. Auth. of New Orleans, No. CIV.A. 11-1397, 20 13 WL 387490 7, at *9 n. 37 (E.D. La. J uly 25, 20 13) (noting that it is "inappropriate to raise new facts and assert new claim s in an opposition to a m otion to dism iss"). But Estell's presentation of new factual m aterial suggests that she should be perm itted to am end her com plaint to better allege her ADEA claim . The Court therefore dism isses Estell's com plaint without prejudice and with leave to am end within twenty-one (21) days of entry of this order. IV. CON CLU SION For the foregoing reasons, the Court GRANTS Strive's m otion to dism iss under Federal Rule of Civil Procedure 12(b)(6). This dism issal is WITHOUT PREJ UDICE and with leave to file an am ended com plaint within twenty-one (21) days of this order. Strive's m otion for sum m ary judgm ent on Estell's ADEA claim is DENIED AS MOOT. 13th New Orleans, Louisiana, this _ _ _ day of J uly, 20 16. _______________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 10 See generally R. Doc. 9. 9
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