United States District Court, N.D. Texas, Dallas Division
JAMES M. WHEELER, Plaintiff,
GABLES RESIDENTIAL SERVICES, INC., Defendant.
MEMORANDUM OPINION AND ORDER
FISH, Senior United States District Judge
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.
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.
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).
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.
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 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.
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).
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
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 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).
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 grounds upon ...