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Quest v. Bandera County

United States District Court, Fifth Circuit

December 26, 2013

PAMELA S. QUEST, Plaintiff,


DAVID ALAN EZRA, Senior District Judge.

On December 9, 2013, the Court heard oral argument on (1) the Motion to Dismiss for Failure to State a Claim filed by Defendant Bandera County, Texas. (Dkt. # 4 ("Motion to Dismiss".) Bruce J. Mery, Esq., and Sylvan Stephen Lang, Jr., Esq., appeared at the hearing on behalf of the Plaintiff; Scott M. Tschirhart, Esq., appeared at the hearing on behalf of Bandera County. After reviewing the motions' supporting and opposing memoranda, and considering the parties' arguments at the hearing, the Court GRANTS IN PART and DENIES IN PART Bandera County's Motion to Dismiss. (Dkt. # 4).


Plaintiff alleges Bandera County wrongfully terminated her from the position of Chief Deputy of Motor Vehicles for the Bandera County Tax Assessor/Collector's Office on April 4, 2012. (Dkt. # 3 ("FAC") at ¶ 6.) Plaintiff alleges she had been employed by Defendant since 2006, and at all times of employment she "fully performed her employment duties and responsibilities, " was "a productive and efficient employee, " and was "qualified and able to perform the essential functions of her job." ( Id. at ¶ 5.) On the day of her termination, Gwenda Tschirhart, the Bandera County Tax Assessor/Collector, told Plaintiff she was being terminated because Plaintiff "made a mistake on two title forms." ( Id. at ¶ 6.) Plaintiff alleges in terminating her, Bandera County discriminated against her through its agent and employee, Gwenda Tschirhart, on the basis of Plaintiff's age.

On or about August 1, 2012, Plaintiff filed a written complaint with the Equal Employment Opportunity Commission ("EEOC") alleging Bandera County had discriminated against her on the basis of her age. ( Id. at ¶ 9.) In March 2013, the EEOC issued a Right to Sue Letter, notifying Plaintiff that she had the right to sue Bandera County within ninety days of receipt of the notification. (Id.)

On June, 11, 2013, Plaintiff brought an action against Bandera County alleging a violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. (See Dkt. # 1.) On June 13, 2013, Plaintiff filed her First Amended Complaint ("FAC"). (Dkt. # 3.) On July 12, 2013, Bandera County filed its Motion to Dismiss Pursuant to Rule 12(b)(6). (Dkt. # 4.) On July 16, 2013, Plaintiff filed her Response in Opposition To Defendant's Motion To Dismiss Pursuant to F.R.C.P. 12(b)(6), And Alternative, Motion For Leave To File Second Amended Complaint. (Dkt. # 5 ("Response").) On July 24, 2013, Bandera County filed its Reply to Plaintiff's Response To Defendant's Motion to Dismiss Pursuant To F.R.C.P. 12(b)(6) And Response To Motion For Leave Of Court To File Second Amended Complaint. (Dkt. # 6 ("Reply").) These motions are now before the Court.


Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Review is limited to the contents of the complaint and matters properly subject to judicial notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322 (2007). In analyzing a motion to dismiss for failure to state a claim, "[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit , 369 F.3d 464, 467 (5th Cir. 2004)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff 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). "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." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).

A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to dismiss. See Twombly , 550 U.S. 544, 555-56 (2007). In providing grounds for relief, however, a plaintiff must do more than recite the formulaic elements of a cause of action. See id. at 556-57. "The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, " and courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal , 556 U.S. at 678 (internal quotations and citations omitted). Thus, although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead "specific facts, not mere conclusory allegations." Tuchman v. DSC Commc'ns Corp. , 14 F.3d 1061, 1067 (5th Cir. 1994); see also Plotkin v. IP Axess Inc. , 407 F.3d 690, 696 (5th Cir. 2005) ("We do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.").

When a complaint fails to adequately state a claim, such deficiency should be "exposed at the point of minimum expenditure of time and money by the parties and the court." Twombly , 550 U.S. at 558 (citation omitted). However, the plaintiff should generally be given at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d 305, 329 (5th Cir. 2002).


The ADEA makes it "unlawful for an employer to fail or refuse to hire... any individual or otherwise 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). To establish an age discrimination claim under the ADEA, the plaintiff must demonstrate she (1) suffered an adverse employment action; (2) was qualified for the position; (3) was within the protected class when the adverse action occurred; and (4) was replaced by someone younger or outside the protected class, treated less favorably than a similarly situated younger employee, or otherwise discharged because of her age. Maestas v. Apple, Inc., No. 12-51282, 2013 WL 5385478, at *3, ___ F.Appx. ___ (5th Cir. Sept. 27, 2013) (citing Smith v. City of Jackson, Miss. , 351 F.3d 183, 196 (5th Cir. 2003)). Under the statute, the protected class includes individuals who are at least forty years old. 29 U.S.C. § 631(a), 633a(a).

In its Motion to Dismiss, Bandera County argues Plaintiff (1) has failed to state a claim because Bandera County is not her employer, and (2) has ...

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