Champlin v. Manpower Inc.

RESPONSE to 61 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Rule 56 Motion for Summary Judgment

S.D. Tex.February 19, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JEFFREY S. CHAMPLIN, § Champlin, § § vs. § CIVIL ACTION NO. 4:16-cv-00421 § JURY DEMANDED EXPERIS US, INC., and § QUANTLAB FINANCIAL, LLC, § Defendants. § PLAINTIFF’S RESPONSE TO QUANTLAB FINANCIAL, LLC’S RULE 12(b)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION TO THE HONORABLE ANDREW S. HANEN: Plaintiff, Jeffrey S. Champlin, files this Plaintiff’s Response to Quantlab Financial, LLC’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction and would show the following: I. INTRODUCTION AND BACKGROUND This is an age-discrimination case where Plaintiff, Jeffrey S. Champlin (“Champlin” or “Plaintiff”) alleges Defendants, Experis US, Inc. and Quantlab Financial, LLC,1 discriminated against him because of his age by emailing Champlin and other potential applicants a job posting on behalf of Quantlab that discouraged older potential applicants from applying for employment. Champlin has diligently litigated the case. When Experis failed to fully respond to Champlin’s written discovery or requests for supplementation, the Court compelled responses on November 7, 2018.2 In part, the Court compelled answers to Interrogatory No. 3 and No. 4, which required Experis to identify those who received a copy of the discriminatory email and 1 Defendants, Experis US, Inc. (herein “Experis”) and Quantlab Financial, LLC (herein “Quantlab”), shall collectively be referred to as “Defendants.” 2 Document 52. Case 4:16-cv-00421 Document 75 Filed in TXSD on 02/19/19 Page 1 of 9 -2- those who responded. Such information was requested for Champlin’s proof of a prima facie case on his disparate impact claim. See Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 995-96, n. 3, 108 S. Ct. 2777 (1988) (plurality opinion). Although Experis was ordered by the Court to produce the information by November 21, 2018, and Experis had represented to Champlin’s counsel that Experis had provided all the information it had, on January 7, 2019, Experis finally produced a list of approximately 1,000 recipients of the email job posting. However, Experis still has not complied with the Court’s order to answer Interrogatory No. 4. Experis has failed to identify individuals who responded to, submitted a résumé for, or completed a job application in response to the email.3 In response to Experis’s denial of the existence of any information regarding to whom the job posting was sent, Champlin subpoenaed the Experis representative who authored the email, Joe Dionne (“Dionne”). Champlin subpoenaed and noticed the deposition of non-party witness, Dionne, for December 28, 2018, January 3, 2019, and January 10, 2019. Champlin took a certificate of non-appearance on January 3, 2019, and January 10, 2019,4 when Dionne failed to appear for deposition although having been duly served with subpoena on both occasions. Champlin is preparing a motion to compel Dionne’s appearance and to recover fees and expenses from him for failing to respond to the subpoena and appear. 3 See Exhibit 1, Defendant’s Second Amended Answers to Plaintiff’s First Set of Interrogatories, Answer Interrogatory No. 4. Experis only identified those résumés it submitted to Quantlab, not what it received in response to the email. 4 See Exhibit 2 and Exhibit 3. Case 4:16-cv-00421 Document 75 Filed in TXSD on 02/19/19 Page 2 of 9 -3- When Experis failed to provide dates for a corporate representative’s deposition, Champlin noticed the corporate representative’s deposition for January 8, 2018. The corporate representative for Experis failed to appear for the deposition, and Champlin secured a certificate of non-appearance.5 In mid-January 2019, the law firm representing Champlin, Fiddler & Associates, P.C. (“F&A”), began the process of winding down, closing on January 31, 2019. Attorneys and staff from F&A joined the firm of Jackson Walker LLP on February 1, 2019. The process of F&A’s physical relocation and transition of electronic files (which still is not completed) has effectively prevented any discovery on this case from mid-January until the present. Champlin’s attorney is in the process of requesting new dates for the corporate representatives of Experis and Quantlab. On January 10, 2019, Quantlab filed its Defendant Quantlab Financial, LLC’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction and Rule 56 Motion for Summary Judgment (“Motion to Dismiss”).6 The submission date was January 31, 2019. The parties agreed to bifurcate the response. Champlin agreed to address Quantlab’s 12(b)(1) motion first but preserved the right to argue the motion was premature.7 As is shown below, on most of the issues on which the motion is based, the motion is premature. II. ARGUMENT AND AUTHORITIES In the 12(b)(1) motion, Quantlab argues Champlin lacks Article III standing to bring an Age Discrimination in Employment Act (“ADEA”) claim because (1) he never applied for the job with Quantlab; and (2) he was not qualified for the job and therefore would not have been hired anyway. 5See Exhibit 4. Experis only later offered a date for deposition during the first week of February, but as mentioned in the following paragraph, Champlin’s attorney was in the midst of a transition to a new law firm and was unable to take the deposition then. 6 Document 61. 7 Document 65, p. 2, n. 1. Case 4:16-cv-00421 Document 75 Filed in TXSD on 02/19/19 Page 3 of 9 -4- A. Champlin was not required to apply for the job if to do so would be futile It is not necessary that a victim of discrimination apply for a job if to do so would be futile. Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324, 329 (1977). In Teamsters, the United States brought a case against the International Brotherhood of Teamsters, alleging discriminatory hiring, assignment, and promotion policies against African Americans and Hispanics. Id. On appeal, the Teamsters argued that unless an individual was able to establish they actually applied for a job, the individual should not be granted relief. Id. at 357. The Teamsters claimed—like Experis does here—that unless an individual applied for an open position, the individual cannot be said to have suffered an injury. Id. at 363. In rejecting the Teamsters’s argument, the Supreme Court noted: [t]he effects of and the injuries suffered from discriminatory employment practices are not always confined to those who were expressly denied a requested employment opportunity. A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection. If an employer should announce his policy of discrimination by a sign reading “Whites Only” on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs. The same message can be communicated to potential applicants . . . by the manner in which he publicizes vacancies . . . . When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application. Id. at 365-66. In addition to Teamsters, several courts of appeals have held a nonapplicant may maintain a case for unlawful discrimination for failure to hire. See, e.g., Acha v. Beame, 531 F.2d 648, 656 (2nd Cir. 1976); Hairston v. McLean Trucking Co., 520 F.2d 226, 231-33 (4th Cir. 1975); Bing v. Roadway Express, Inc., 485 F.2d 441, 451 (5th Cir. 1973) (“If an employee realizes full well that blacks simply are not hired as road drivers, why should he bother to Case 4:16-cv-00421 Document 75 Filed in TXSD on 02/19/19 Page 4 of 9 -5- apply?”); U.S. v. N. L. Indus., Inc., 479 F.2d 354, 369 (8th Cir. 1973). Whether it would have been futile for Champlin to apply for the job is ultimately a fact question for the fact-finder. See McDermott v. Lehman, 594 F.Supp. 1315, 1323 (D. Me. 1984). Champlin did not apply for the job because the wording of the email made it clear to him that do so would be futile.8 The evidence, as described below, about the ages of those who were hired bear that out.9 The hypothetical described in Teamsters applies here, except that instead of a job advertisement reading “Whites only need apply,” the email sent to Champlin stated “[w]e are not looking for . . . 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.”10 From the email one can fairly infer Quantlab had no intention of hiring him because he was not a “fit” for this “young, eager group.” That Champlin did not engage in the futile gesture of applying for a job he was already informed he would not be hired for is of no matter. See id. As shown below, Quantlab did in fact hire five substantially younger individuals for the job, and none were near Champlin’s age. Accordingly, Quantlab’s argument is without merit. B. Champlin’s discovery responses do not show he was unqualified for the job, and more discovery is needed to determine the actual requirements of the job Quantlab’s second and third arguments are based on the contention Champlin was not qualified for the job. This is a fact question. See Johnson v. Louisiana, 351 F.3d 616, 626 (5th Cir. 2003). Quantlab claims Champlin was not qualified for the job because he allegedly is not proficient in any programming language required for the position. However, the job posting does not state that he had to be “proficient” in any of the programming languages listed, just that he 8 See ¶ 4 of Declaration of Jeffrey Champlin (“Champlin Dec.), attached hereto as Exhibit 5. 9 Exhibit 6, Defendant’s Objections and Answers to Plaintiff’s Interrogatories Nos. 1-9, Answer to Interrogatory No. 7. 10 See Exhibit 5, Chaplin Dec., Exhibit 5A. Case 4:16-cv-00421 Document 75 Filed in TXSD on 02/19/19 Page 5 of 9 -6- have “[k]nowledge of a programing language . . . .”11 Moreover, the programming languages listed are obviously examples and are not exclusive because they are followed by a “etc.”12 Champlin’s responses to requests for admission that Quantlab cites only state Champlin was not proficient in the few languages identified in the requests for admissions. They do not state he had no knowledge of them or that he did not have proficiencies in other programming languages. In fact, Champlin denied he was not proficient in any programing language.13 Quantlab’s reliance on the Declaration of Jay Allen (“Allen”), a human resources representative, is equally misplaced because Allen does not state the job required proficiency in any programing language.14 Champlin could perform the job as advertised.15 However, discovery is needed as to the actual requirements of the job referenced in the July 11, 2013 email (Software Engineer in Trading Support), the true nature of the job, the standards used by those making the hiring decisions in hiring the five individuals given the jobs, the actual qualifications of those hired, any deviations made from the advertised qualifications, the extent to which proficiency in, as opposed to knowledge of, programming languages mentioned in the email were required for the job, whether a college degree in computer science or other science degree was really required, or whether 25 years of experience in the industry would have satisfied any job requirements.16 This discovery could show that Champlin was in fact qualified for the job, perhaps even more qualified than those who were hired. Such evidence would demonstrate a genuine factual dispute, to the extent one does not already exist. 11 See Exhibit 5, Chaplin Dec., Exhibit 5A. 12 See Exhibit 5, Chaplin Dec., Exhibit 5A. 13 See Document 61-2, p. 7 (Motion to Dismiss, Exhibit B). 14 See Document 61-4, ¶ 5 (Motion to Dismiss, Exhibit D). 15 Exhibit 5, Chaplin Dec., ¶ 3. 16 See ¶ 2, Affidavit of G. Scott Fiddler (“Fiddler Aff.), attached hereto as Exhibit 7. Case 4:16-cv-00421 Document 75 Filed in TXSD on 02/19/19 Page 6 of 9 -7- What is known from written discovery is that after the email was sent, Quantlab hired five persons to fill the Software Engineer in Trading Support positions, ages 24, 24, 30, 34, and 42.17 This evidence supports Champlin’s contention he (age 56 at the time) and older applicants need not have applied and that Quantlab was not hiring older applicants for the job. As mentioned above, Champlin needs to conduct further discovery on the actual qualifications of each candidate, as well as the actual requirements of the job. This will be done through depositions of one or more of the individuals hired for the job and a corporate representative of Quantlab. Champlin has stated what discovery he needs, why he needs it, and how the discovery will defeat the motion. See Int’l Shortstop Inc. v. Rally’s Inc., 939 F.2d 1257, 1267 (5th Cir. 1991). Where the party opposing a dispositive motion informs the court it has been diligent in seeking discovery, a continuance should generally be granted. See id. When the response involves rebutting the state of mind of a party opponent, as it does here, courts should be generous in allowing discovery. Id. None of the cases relied upon by Quantlab on pages 8 and 9 of its motion were cases decided without the opportunity for full discovery. Cole v. Yellow Freight System, Inc.,18 on which Quantlab relies, was an appeal from a full blown trial, not a determination of a Rule 12(b)(1) motion. The other cases cited by Quantlab are cases determined at trial or summary judgment, i.e., after discovery. See Rich v. Martin Marietta, 522 F.2d 333 (10th Cir. 1975) (trial); Bacon v. Honda of America Mfg. Inc., 370 F.3d 565 (6th Cir. 2004) (Rule 56 summary judgment); Melendez v. Illinois Bell Telephone Co., 79 F.3d 661 (7th Cir. 1996) (trial); Robinson 17 Exhibit 6, Defendant’s Objections and Answers to Plaintiff’s Interrogatories Nos. 1-9, Answer to Interrogatory No. 7. 18 646 F.2d 444 (10th Cir. 1981). Case 4:16-cv-00421 Document 75 Filed in TXSD on 02/19/19 Page 7 of 9 -8- v. Polaroid Corp., 732 F.2d 1010 (1st Cir. 1984) (trial); Collins-Pearcy v. Mediterranean Shipping Co. (USA) Inc., 698 F.Supp.2d 730 (S.D. Tex. 2010) (Rule 56 summary judgment); Vuyanich v. Republic Nat. Bank of Dallas, 723 F.2d 1195 (5th Cir. 1984) (trial). Accordingly, Quantlab’s Motion to Dismiss on the issue of whether Champlin was qualified for the job or would have been hired, should be denied because there is a factual issue, or, in the alternative, the motion is premature, and Champlin should be afforded the opportunity to complete discovery before responding.19 III. CONCLUSION For these reasons, Champlin requests Quantlab’s Rule 12(b)(1) motion be denied. In the alternative, Champlin requests the motion be continued until after he has had the opportunity to complete discovery. PRAYER WHEREFORE, Plaintiff Jeffrey S. Champlin requests the Court deny Defendant Quantlab Financial, LLC’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction,20 or, in the alternative, the Court continue the motion until after Plaintiff has had the opportunity to conduct further discovery, and that Plaintiff receive such other and further relief to which he may show himself justly entitled. 19 Quantlab’s argument against Champlin’s request for injunctive relief is based on the same lack-of- qualifications argument. Therefore, Champlin’s arguments apply equally in response. 20 Champlin interprets the remainder of Quantlab’s motion as part of its Rule 56 motion for summary judgment. According to the Court’s February 1, 2019 order, no response is due to that part of the motion until May 1, 2019. Document 67. Case 4:16-cv-00421 Document 75 Filed in TXSD on 02/19/19 Page 8 of 9 -9- Respectfully submitted, JACKSON WALKER LLP /S/ G. SCOTT FIDDLER ______________________________ G. SCOTT FIDDLER Attorney-in-Charge Texas State Bar No. 06957750 Federal ID No. 12508 sfiddler@jw.com JESSICA R. LARA Of Counsel Texas State Bar No. 24081582 Federal ID No. 3306796 jlara@jw.com 1401 McKinney Street, Suite 1900 Houston, Texas 77010 Tel: 713-752-4200 Fax: 713-754-6717 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that service of a true and correct copy of the foregoing document and proposed Order will be accomplished through the notice of electronic filing in accordance with the Federal Rules of Civil Procedure on this the 19th day of February 2019, to the following: Yvette V. Gatling, Esq. Kevin Little, Esq. ygatling@littler.com klittle@littler.com Littler Mendelson, P.C. Littler Mendelson, P.C. 1650 Tysons Blvd., Suite 700 1301 McKinney, Suite 1900 Tysons Corner, Virginia 22102 Houston, Texas 77010 Mark Jodon, Esq. mjodon@littler.com Travis J. Odom, Esq. todom@littler.com Littler Mendelson, P.C. 1301 McKinney, Suite 1900 Houston, Texas 77010 /S/ G. SCOTT FIDDLER _______________________________ G. SCOTT FIDDLER Case 4:16-cv-00421 Document 75 Filed in TXSD on 02/19/19 Page 9 of 9