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Dennison v. KRGP Inc.

United States District Court, N.D. Texas, Dallas Division

May 20, 2019

RANDY DENNISON, Plaintiff,
v.
KRGP, INC. et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          KAREN GREN SCHOLER UNITED STATES DISTRICT JUDGE.

         This Order addresses Defendants KRGP, Inc., Kroger Co., and Kroger Texas LP's ("Defendants") Motion to Dismiss [ECF No. 15]. For the reasons stated below, the Motion is granted without prejudice.

         I. BACKGROUND

         This action arises out of Plaintiff Randy Dennison's ("Plaintiff) employment with Defendants as a store manager. First Am. Compl. ¶ 1. After working for Defendants for 38 years, Plaintiff was allegedly fired for failing to meet performance standards. See Id. ¶¶ 1, 14-22. Plaintiff alleges that Defendants discriminated against Plaintiff on the basis of his age because (1) a female employee of unspecified age who replaced Plaintiff was less experienced; (2) Defendants treated several younger store managers more favorably but in unspecified ways; (3) the individuals who terminated Plaintiff were in their 40s; (4) the termination of employment letter did not comply with the requirements of the Older Workers Benefit Protection Act ("OWBPA"); and (5) Defendants did not respond to Plaintiffs requests to address his concerns regarding the termination of employment letter. See Id. ¶¶ 1, 10, 11-13, 15, 16, 22, 24, 26.

         II. LEGAL STANDARD

         To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell AH. Corp, v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008). To meet this "facial plausibility" standard, a plaintiff must "plead[] 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). Plausibility does not require probability, but a plaintiff must establish "more than a sheer possibility that a defendant has acted unlawfully." Id. The court must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). However, the court does not accept as true "conclusory allegations, unwarranted factual inferences, or legal conclusions." Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007). A plaintiff must provide "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 555 (internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citations omitted).

         In ruling on a Rule 12(b)(6) motion, the court limits its review to the face of the pleadings. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). However, the court may also consider documents outside of the pleadings if they fall within certain limited categories. First, the "court is permitted ... to rely on 'documents incorporated into the complaint by reference, and matters of which a court may take judicial notice."' Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). Second, the "court may consider documents attached to a motion to dismiss that 'are referred to in the plaintiffs complaint and are central to the plaintiffs claim.'" Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010) (quoting Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003)). Third, "[i]n deciding a 12(b)(6) motion to dismiss, a court may permissibly refer to matters of public record." Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994) (internal citations omitted); see also, e.g., Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (stating, in upholding district court's dismissal pursuant to Rule 12(b)(6), that "the district court took appropriate judicial notice of publicly-available documents and transcripts produced by the [Food and Drug Administration], which were matters of public record directly relevant to the issue at hand." (internal citations omitted)).

         The ultimate question is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002), At the motion to dismiss stage, the court does not evaluate the plaintiffs likelihood of success. It only determines whether the plaintiff has stated a claim upon which relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977).

         III. ANALYSIS

         To make out a prima facie case of discriminatory treatment based on age,

[Plaintiff is] required to prove: (1) [he is] within the protected class; (2) [he is] 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 ....

Smith v. City of Jackson, 351 F.3d 183, 196 (5th Cir. 2003). At the motion to dismiss stage, Plaintiff does "not have to submit evidence to establish a prima facie case of discrimination," but he must "plead sufficient facts on all of the ultimate elements of a disparate treatment claim to make his case plausible." Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016); see also Meadows v. City of Crowley, 731 Fed.Appx. 317, 318 (5th Cir. 2018) ("Because [the plaintiff] has not pled such facts, the district court properly dismissed her complaint."). At the very least, "[P]laintiff must set forth allegations that would enable the court to reasonably infer that the employer took the adverse employment action because of...[P]laintiff s age." Woldetadik v. 7-Eleven, Inc., 881 F.Supp.2d 738, 741 (N.D. Tex. 2012).

         Plaintiff alleges that Defendants engaged in age discrimination because (1) Plaintiffs replacement was less experienced; (2) Defendants treated several younger store managers more favorably; (3) the individuals who terminated Plaintiff were in their 40s, whereas Plaintiff is 55; (4) the termination of employment letter did not comply with OWBPA requirements; and (5) Defendants did not respond to Plaintiffs requests to address his concerns regarding the termination of employment letter, See First Am. Compl. ¶¶ 1, 10, 15, 16, 22, 24, 26. Viewing the Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff did not plead sufficient facts to raise a plausible inference of age discrimination.

         First, "Plaintiff does not state if he was older or younger than the" female employee who replaced him. Lacey v. City of Desoto, Civ. A. No. 3:04-CV-1277, 2005 WL 17656, at *3 (N.D. Tex. Jan. 3, 2005). Plaintiff alleges no more than that the female employee was "less experienced" than Plaintiff[1]See First Am. Compl. ¶¶ 1, 10, 24. Thus, "Plaintiff did not plead sufficient facts to support a claim that [he] was replaced by someone younger or outside the protected class." Bates v. Kroger Tex., L.P., Civ. A. No. H-14-1713, 2015 WL 1640429, at *2 (S.D. Tex. Mar. 31, 2015). Although Plaintiff alleges that Defendants applied "ambiguous and subjective" performance standards to Plaintiff "more harshly" than to younger store managers, Plaintiff does not plead any facts in support of this allegation. See First Am. Compl. ΒΆΒΆ 1, 10, 24, 26. The Complaint is silent as to whether the younger store managers also failed to meet their performance goals, whether the goals were different for them, or any ...


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