United States District Court, S.D. Texas, Houston Division
ORDER AND OPINION
MELINDA HARMON UNITED STATES DISTRICT JUDGE
the Court is Defendant Quantlab Financial, LLC's
(“Quantlab”) Motion to Dismiss. Doc. 2.
Plaintiff, Jeffery S. Champlin (“Champlin”),
filed a Response, Doc. 7, Quantlab filed a Reply, Doc. 9, and
Plaintiff filed a Sur-Reply, Doc. 12. Also, Quantlab has
filed a Notice of New Authority in Support of Its Motion to
Dismiss, Doc. 16, to which Champlin has filed a response,
Doc. 17. After considering these documents and the applicable
law, the Court grants in part and denies in part
Quantlab's Motion to Dismiss.
August 30, 2016, Champlin filed his Original Petition in
state court alleging that Quantlab violated the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621, et seq.
and Texas Commission on Human Rights Act
(“TCHRA”), Tex. Lab. Code Ann. § 21.051,
et seq. Docs. 1 at 1, 1-1 at 9-12 (Cause No.
2016-58450 in the 129th Judicial District Court of Harris
County, Texas). On October 5, 2016, Quantlab removed the case
to this Court on the basis of federal-question jurisdiction
because Champlin raised federal ADEA claims. See 28
U.S.C. § 1331; Doc. 1 at 2. Accordingly, the Court has
supplemental jurisdiction over the TCHRA claims. See
28 U.S.C. § 1367.
Original Petition, Champlin alleges that on July 11, 2013, he
received an email with “age discriminatory
language” “from [Experis US, Inc.
(“Experis”), ] the employment agency[, ]
outlin[ing] a job position for a Software Engineer . . . with
an undisclosed company's Operations/Support team.”
Doc. 1-1 at 8 ¶ 4.2, 4.7; No. 4:16-CV-00421, Doc. 15 at
2.According to Champlin, the e-mail included
the following discriminatory language: “[w]e are not
looking for anyone with overspecialization or Helpdesk/1st
level support candidates or candidates with more than 10-12
years of experience. This is a pretty young, eager group, so
culturally 1-5 years experience is the best fit.” Doc.
1-1 at 8 ¶ 4.3.
states that he was “fifty-six years old at the time he
received the email” from Experis, and, “[a]s a
result of the discriminatory wording of the email, Champlin
was deterred from applying and did not apply for the Software
Engineer in Trading Support position because such an
application would have been futile.” Id. at 9
¶ 4.8. Thus, Champlin alleges that he “was
effectively rejected for the position.” Id.
Also, “[i]ndividuals substantially younger than
Champlin and/or outside the protected class were hired for
the positions.” Id. ¶ 4.9.
Champlin filed a charge of age discrimination with the Equal
Employment Opportunity Commission (“EEOC”) and
the Texas Workforce Commission Civil Rights Division
(“TWC”) against Experis on July 17, 2013. Doc.
1-1 at 9 ¶ 4.5; No. 4:16-CV-00421, Doc. 1 at 4. On
November 20, 2015, he received a right to sue letter from the
EEOC. No. 4:16-CV-00421, Doc. 1 at 5. And in February of
2016, Champlin sued Experis. Id. at 1.
“Mid-February 2016, Champlin requested and received the
EEOC file” concerning his claim against Experis, which
identified “that Quantlab was the entity who . . .
drafted the listing for the . . . position.” Doc. 1-1
at 9 ¶ 4.6. Thus, on June 6, 2016, Champlin alleges that
he “timely filed a charge of discrimination with the .
. [EEOC] and by deferral with the Texas Workforce
Commission-Civil Rights Division”
(“TWC-CRD”) against Quantlab. Id. at 13
¶ 10.1. He also alleges that he received the right to
sue letter from the EEOC on July 1, 2016. Id. at 13
¶ 10.2. On August 30, 2016, Champlin filed suit against
Quantlab under ADEA and TCHRA. Doc. 1-1.
suit against Quantlab, Champlin asserts four claims:
discrimination and disparate-impact claims under ADEA and
discrimination and disparate-impact claims under TCHRA. Doc.
1-1 at 9-12. Champlin asserts that Quantlab violated ADEA by
discriminating “against Champlin because of his age by
creating a discriminatory job posting indicating to Champlin
and any reasonable person that it would have been futile for
Champlin to apply.” Id. at 9-10. Champlin also
asserts a disparate impact claim against Quantlab under ADEA
by alleging that “the practice resulted in a disparate
impact on older individuals, ” and “there is a
causal link between the employment practice and the
disparity, ” which “is not justified by a lawful
business necessity [or] by a reasonable factor other than
age.” Id. at 10-11. Champlin similarly asserts
his discrimination and disparate impact claims under the
TCHRA, which we do not recite herein. Id. at 11-12.
requests that the Court dismiss Champlin's claims for
three reasons: (1) “Champlin's [TCHRA and ADEA]
claims are barred by the applicable statutes of limitations
and/or failure to exhaust administrative remedies”; (2)
“Champlin's failure-to-hire claim fails because he
never applied for the job, and therefore, cannot make out a
prima facie case” under “both the TCHRA
and the ADEA”; and (3) “Champlin's disparate
impact claim fails because the ADEA does not recognize such a
claim for non-employee job applicants.” Doc. 2.
to the filing of Quantlab's Motion to Dismiss, this Court
granted in part Experis's Second Motion to Dismiss, in
which Experis asserted the second and third arguments above:
namely that Champlin fails to state a claim under ADEA
because he never applied for nor did Experis refuse to refer
him for the job, and that ADEA does not recognize a claim for
non-employee job applicants. No. 4:16-CV-00421, Doc. 16 at
2-3. The Court dismissed Champlin's discrimination claim,
but not his disparate impact claim. No. 4:16-CV-00421, Doc.
26. The Court takes judicial notice of its opinion and order.
Standard of Review
district court reviews a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6), it must construe the complaint in
favor of the plaintiff and take all well-pleaded facts as
true. Wolcott v. Sebelius, 635 F.3d 757, 763 (5th
Cir. 2011) (citing Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009)). “Dismissal is appropriate only if
the complaint fails to plead ‘enough facts to state a
claim to relief that is plausible on its face.'”
Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Montoya v. FedEx Ground
Package Sys., Inc., 614 F.3d 145, 148 (5th Cir. 2010)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (internal quotation marks omitted). “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.”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, . . . a plaintiff's obligation to provide
the ‘grounds' of his ‘entitlement to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 544
Legal Principles and Discussion
Administrative Exhaustion and Statute of Limitations
and Quantilab dispute the start date from which to compute
administrative exhaustion and the statute of limitations
deadlines. Quantlab asserts that the Court should compute the
deadlines from the date Champlin received the job posting on
July 13, 2013. If so, Quantlab asserts that Champlin did not
“exhaust his administrative remedies” because his
EEOC and TCHRA charges were filed “over 1000 days late,
” and his TCHRA claim is barred by its “two year
statute of limitations found at Tex. Lab. Code Ann. §
21.256.” Doc. 2 at 5-7. Champlin, asserts, however,
that the Court should compute the deadlines from the date he
discovered Quantlab's identity as the employer
responsible for the job posting in February of 2016. If this
is so, Champlin asserts all his filings were timely. In
support, Champlin asserts that all limitations were tolled by
the discovery rule or otherwise equitably tolled. Docs. 1-1
at 7 ¶ 10.4; 7 at 14-16. The Court first discusses the
ADEA administrative exhaustion issue, and then discusses the
TCHRA administrative exhaustion and statute of limitations
Administrative Exhaustion under ADEA
discrimination plaintiffs must exhaust administrative
remedies before pursuing claims in federal court.”
Taylor v. Books A Million, Inc., 296 F.3d 376,
378-79 (5th Cir. 2002) (citing Dao v. Auchan
Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996)).
Exhaustion occurs, in part, when the plaintiff files a timely
charge with the EEOC. Id. “Because Texas is a
‘deferral' state under the ADEA, the limitations
period for filing an age discrimination charge with the EEOC
is 300 ...