United States District Court, N.D. Texas, Fort Worth Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR., UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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
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).
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
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
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.
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
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