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Ahmed v. Hussain

United States District Court, N.D. Texas, Fort Worth Division

April 18, 2018

RAFEEQ AHMED, Plaintiff,
AIJAZ HUSSAIN, et al., Defendants.



         Before the Court are Defendants' Motion to Dismiss (ECF No. 17) with Appendix in Support (ECF No. 18), filed February 16, 2018; Plaintiff's Response to Defendants' Motion to Dismiss (ECF No. 20), filed March 8, 2018; and Defendants' Reply in support of its Motion to Dismiss (ECF No. 22), filed March 22, 2018. Based upon a full review of the relevant pleadings on file and the applicable legal authorities, the undersigned RECOMMENDS that United States District Judge Reed O'Connor GRANT Defendants' Motion to Dismiss with prejudice (ECF No. 17), and Plaintiff be given the opportunity to replead the disparate treatment claim.

         I. BACKGROUND

         In his Amended Complaint, Rafeeq Ahmed (“Plaintiff”) alleges that, on or about September 15, 2016, he was removed as area manager and allegedly experienced continued discriminatory treatment thereafter. ECF No. 14 at 2-3. Specifically, Plaintiff alleges that such employment actions were due to his age and in retaliation for Plaintiff's disagreement regarding his employer's marketing strategies. Id.

         On September 21, 2017, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Texas Workforce Commission Civil Rights Division alleging that Aijaz Hussain, Julie Burzynski, Cathy Revord, and UIF Corporation (collectively, the “Defendants”) had unlawfully discriminated against him based on age under the Age Discrimination in Employment Act (“ADEA”). ECF No. 18 at 3.

         Plaintiff commenced this action pro se by filing his Original Complaint on December 15, 2017. ECF No. 1. On January 12, 2018, Defendants appeared in the case and filed a Motion to Dismiss under Rule 12(b)(6). ECF No. 12. Thereafter, on February 2, 2018, Plaintiff filed his Amended Complaint (ECF No. 14).


         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. The Rules require that each claim contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a). A complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering a Rule 12(b)(6) motion, courts “take all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff . . . and ask whether the pleadings contain ‘enough facts to state a claim to relief that is plausible on its face.'” Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016) (citing Twombly, 550 U.S. at 547). “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). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). A court ruling on a Rule 12(b)(6) motion may rely on the complaint, documents properly attached to the complaint or incorporated into the complaint by reference, and matters of which a court may take judicial notice. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011). “The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b).

         There exists a “well-established policy that the plaintiff be given every opportunity to state a claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). It is federal policy to decide cases on the merits rather than technicalities, and thus when possible the Fifth Circuit has recommended that suits be dismissed without prejudice on Rule 12 motions. Great Plains Tr. Co., 313 F.3d at 329; Hines v. Wainwright, 539 F.2d 433, 434 (5th Cir. 1976) (vacating and remanding a Rule 12(c) dismissal with instructions to the district court to dismiss without, instead of with, prejudice). As a result, courts generally allow plaintiffs at least one opportunity to amend following a Rule 12 dismissal on the pleadings. Great Plains Tr. Co., 313 F.3d at 329; see In re Online Travel Co. (OTC) Hotel Booking Antitrust Litig., 997 F.Supp.2d 526, 548-49 (N.D. Tex. 2014) (Boyle, J.) (dismissing for failure to state a claim without prejudice, as dismissing with prejudice would be “too harsh a sanction”); Parker v. Allstate Ins. Co., Civ. A. No. 3:16-CV-00892-CWR-FKB, 2017 WL 4287912, at *1 (S.D.Miss. Sept. 27, 2017) (“It is well-established that plaintiffs who fail to meet their burden on a motion for judgment on the pleadings and yet may still have a viable avenue to recover should be granted leave to amend their complaint and make their best case.” (citation omitted)).

         When a case involves a pro se party, courts are to liberally construe the pleadings, taking all well-pleaded allegations as true. Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). But “even a liberally-construed pro se . . . complaint must set forth facts giving rise to a claim on which relief may be granted.” Levitt v. Univ. of Texas at El Paso, 847 F.2d 221, 224 (5th Cir. 1988) (citing Bounds v. Smith, 430 U.S. 817, 825 (1977)). However, if the court determines that the plaintiff has pleaded his or her best case, a district court does not err in dismissing a pro se complaint with prejudice. Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999) (citing Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)).

         III. ANALYSIS

         As an initial matter, neither Title VII, the ADA, nor the ADEA provides for individual liability for supervisory employees. See Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996) (“[T]he ADEA provides no basis for individual liability for supervisory employees.”); Stoker-Hill v. Greyhound Lines, Inc., No. 3:08-CV-1456-L, 2009 WL 348274, at *4 (N.D. Tex. Feb. 11, 2009) (“It is clear from Plaintiff's Complaint that Walker and Douglas are supervisory personnel. Accordingly, to the extent Plaintiff seeks to assert an ADEA claim against Walker and Douglas, such claim will be dismissed with prejudice.”) (citing Stults, 76 F.3d at 655). Accordingly, to the extent Plaintiff seeks to assert ADEA claims against Aijaz Hussain, Julie Burzynski, and Cathy Revord in their individual capacities, such claims should be dismissed with prejudice. See Id. (citing 29 U.S.C. § 623(a)).

         Defendants also seek dismissal of Plaintiff's disparate impact claims because Plaintiff allegedly failed to exhaust his administrative remedies before filing the instant complaint. ECF No. 17. In order to bring a disparate impact discrimination claim, a party must show that the employer had “(1) a facially neutral policy; (2) that, in fact, has a disproportionately adverse effect on a protected class.” Pacheco v. Mineta, 448 F.3d 783, 791 (5th Cir. 2006) (citation omitted). Plaintiff alleges that he “suffered disparate impact” because Defendants awarded client leads to younger loan originators and because he was ultimately removed from his role as area manager. ECF No. 14 at 4. Defendants argue that the EEOC charge does not refer to a facially neutral policy that disproportionately impacts older workers. ECF No. 17 at 7. Further, Defendants argue that “a charge that complains of only past incidents of disparate treatment and does not identify a neutral employment policy does not exhaust a disparate impact claim.” Id.

         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. App'x 566, 569 (5th Cir. 2012) (citing 29 U.S.C. § 626(d)). 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 discrimination.”). Thus, the Court must determine whether ...

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