Champlin v. Manpower Inc.

RESPONSE in Opposition to 69 MOTION for Judgment

S.D. Tex.February 27, 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(c) MOTION FOR JUDGMENT ON THE PLEADINGS TO THE HONORABLE ANDREW S. HANEN: Plaintiff, Jeffrey S. Champlin (“Plaintiff” or “Champlin”), files this Plaintiff’s Response to Quantlab Financial, LLC’s Rule 12(c) Motion for Judgment on the Pleadings (Document 69) (“Motion for Judgment”), and would respectfully show the following: I. INTRODUCTION AND BACKGROUND On July 11, 2013, Champlin received an email from Experis US, Inc. (“Experis”) a division of ManpowerGroup US Inc. (“Manpower”). Manpower specializes in recruiting, hiring, training, promoting, and transferring potential employees for its corporate clients.1 The email outlined a job position for a Software Engineer in Trading Support within an undisclosed company’s Operations/Support team.2 The job description included the following language: “[w]e are not 1 Document 15, p. 2, ¶ 4.2. 2 Document 15, p. 2, ¶ 4.3. Case 4:16-cv-00421 Document 77 Filed on 02/27/19 in TXSD Page 1 of 9 -2- 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.”3 Experis had copied the language that included the reference to the “pretty young, eager group” from an email from Quantlab Financial, LLC (“Quantlab”). In the email from Quantlab, there were other job postings with similar discriminatory language, which were also to be submitted to potential applicants. Further, the email to Experis from Quantlab indicated the search for the Software Engineer in Trading Support position would be “ongoing” and that the headcount for the position was six.4 Accordingly, Experis’s discrimination was not limited to just one position but extended to many. Champlin was fifty-six years old at the time he received this email from Experis. As a result of the discriminatory wording of the email, Champlin was deterred from and did not apply for the Software Engineer in Trading Support position because such an application would have been futile and lead to certain rejection.5 Individuals substantially younger than Champlin and/or outside the protected class were hired for the positions.6 On July 8, 2016, Experis filed its Defendant’s Second Motion to Dismiss for Failure to State a Claim (“Motion to Dismiss”).7 In Defendant’s Motion to Dismiss, Quantlab contended Champlin’s disparate impact claim failed because only employees could allegedly bring disparate impact claims under the Age Discrimination in Employment Act (“ADEA”). Champlin filed a 3 Document 15, p. 2, ¶ 4.4. 4 Document 15, p. 2, ¶ 4.5. 5 Document 15, p. 3, ¶ 4.6. 6 Document 15, p. 3, ¶ 4.7. 7 Document 16. Case 4:16-cv-00421 Document 77 Filed on 02/27/19 in TXSD Page 2 of 9 -3- response, Quantlab filed a reply, and Champlin filed a surresponse addressing the issue. On January 24, 2018, Judge Melinda Harmon denied the Motion to Dismiss as to Champlin’s ADEA disparate impact claim, finding that no binding authority interprets section 4(a)(2) of the ADEA to apply only to employees and, thus, the court should deny the disparate claim.8 On February 6, 2019, Quantlab filed the current Motion for Judgment re-urging the same argument. II. ARGUMENT AND AUTHORITIES A. Standard of Review for Motion for Judgment on the Pleadings A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6). Ackerson v. Bean Dredging LLC, 589 F.3d 196, 209 (5th Cir. 2009). Thus, the inquiry focuses on the allegations in the pleadings and not on whether the plaintiff actually has sufficient evidence to succeed on the merits. Id. To survive a motion to dismiss under Rule 12(b)(6), a pleading need only contain a short and plain statement of the claim showing that the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Detailed factual allegations are not required, and a claim has facial plausibility so long as the pleadings allow the Court to draw reasonable inferences from those facts that the defendant is liable for misconduct. Id. at 678. The Court must take the allegations as true and draw reasonable inferences in favor of the pleader. Iqbal, 556 U.S. at 678; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). 8 Document 31, p. 14, ¶ 3. Case 4:16-cv-00421 Document 77 Filed on 02/27/19 in TXSD Page 3 of 9 -4- B. Disparate Impact Claims are Available to Applicants Under the ADEA Quantlab’s Motion for Judgment is based on the Seventh Circuit’s recent decision in Kleber v. CareFusion Corp.9 to support its argument that non-employees cannot bring a disparate impact claim under the ADEA. However, Judge Harmon ruled on this issue in this case on January 24, 2018, finding that no binding authority interprets section 4(a)(2) of the ADEA to apply only to employees.10 Quantlab’s new motion still presents no binding authority. Quantlab cites the Fifth Circuit case of Smith v. City of Jackson, Mississippi11 in support of its argument that disparate impact claims are not available to applicants under the ADEA, but rightly acknowledges the quoted language is mere dictum.12 Judge Harmon obviously came to the same conclusion. There is no dispute Section 623(a)(2) of the ADEA authorizes disparate impact claims. See Smith v. City of Jackson Miss., 544 U.S. 228, 239 (2005). However, what is as yet unclear is whether the reference to “any individual” in Section 623(a)(2) includes job applicants, or whether the language “his employees” limits the available protections. See 29 U.S.C. § 623(a)(2). Because the statute is at best ambiguous, deference to the Equal Employment Opportunity Commission (“EEOC”) regulations is warranted. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 9 --F.3d--, 2019 U.S. App. LEXIS 2192 (7th Cir. Jan 23, 2019 (en banc). 10 Document 31, p. 14, ¶ 3. 11 351 F.3d 183 (5th Cir. 2003). 12 Smith did not hold an applicant for a job cannot present a disparate impact claim. Smith involved current employees and not applicants for employment. Smith v. City of Jackson, Miss., 351 F.3d 183, 184-85 (5th Cir. 2003). Thus, Smith did not address the question presented here: whether the ADEA authorized disparate impact claims by applicants. Case 4:16-cv-00421 Document 77 Filed on 02/27/19 in TXSD Page 4 of 9 -5- 467 U.S. 837, 843-44 (1984); see also Fed. Express Corp. v. Holowecki, 552 U.S. 389, 403 (2008) (“Where ambiguities in statutory analysis and application are presented, the agency may choose among reasonable alternatives.”). The EEOC’s interpretation of the statute is that applicants (non-employees) are protected from employment policies that have a disparate impact on them. See 29 C.F.R. § 1625.7(c). The regulation states in part: Any employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a ‘reasonable factor other than age.’ An individual challenging the allegedly unlawful practice is responsible for isolating and identifying the specific employment practice that allegedly causes any observed statistical disparities. 29 C.F.R. § 1625.7(c) (emphasis added). The EEOC’s interpretation of ambiguous language in a statute need only be reasonable to be entitled to deference. EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115 (1988). It should also be noted that the Supreme Court has already relied upon the EEOC’s interpretation that the ADEA permits disparate impact claims. See Smith v. City of Jackson Miss., 544 U.S. 228, 239 (2005). In short, the EEOC interprets the statute as extending disparate impact protections to all “individual’s within the protected group,” and deference to this interpretation is warranted. In Rabin v. PricewaterhouseCoopers LLP,13 like Quantlab, the defendant sought to dismiss the plaintiff’s claims under FED. R. CIV. P. 12(c)), arguing the ADEA does not permit job applicants to bring disparate impact claims. Id. The Rabin court analyzed and distinguished the recent Eleventh Circuit case of Villarreal v. R.J. Reynolds—which is also heavily relied upon by Quantlab here. In rejecting and refusing to adopt the Villarreal opinion, the Rabin court noted: 13 236 F. Supp. 3d 1126 (N.D. Cal. 2017). Case 4:16-cv-00421 Document 77 Filed on 02/27/19 in TXSD Page 5 of 9 -6- Finally, the most natural reading of section 4(a)(2) ‘plainly describes what [PwC allegedly] did to [Plaintiffs]. Specifically, Mr. [Rabin] is an ‘individual’ who was ‘deprive[d]’ ‘of employment opportunities’ and denied any ‘status as an employee’ because of something an employer did to ‘limit . . . his employees.’ Given that it is PwC’s alleged discrimination that deprived Mr. Rabin of his status as an employee, it would turn the ADEA on its head to say that Mr. Rabin cannot bring a disparate impact claim because he was never actually hired. Id. at 1130. (internal citations omitted). Contrary to Quantlab’s recitation of the reasoning in Kleber, as cogently explained in Rabin, the statutory language supports a conclusion that applicants may bring disparate impact claims under the ADEA. As the court discusses in Rabin, the ADEA uses the phrase “any individual” rather than “employee” when identifying those people covered by Section 4(a)(2) (29 U.S.C. § 623(a)(2)). However, in other sections where Congress was identifying those it sought to protect, it used the word “employees.” The Rabin court rightly assumed the use of different words reflected Congress’s intent to protect “all individuals” by this section. See Miss. Poultry Ass’n v. Madigan, 992 F.2d 1359, 1363-64 (5th Cir. 1993) (“[T]he use of different words or terms within a statute indicates that Congress intended to establish a different meaning for those words.”) (quoting Russello v. U.S., 464 U.S. 16, 23 (1983)). As the Rabin court noted, this reading of the statute is further bolstered by Congress’s use of the phrase, “any employee” when referring to those, for example, whose pay was reduced to comply with the ADEA. Rabin, 236 F.Supp.3d at 1128. Quantlab’s argument that the fact that Congress amended Title VII for the Civil Rights Act of 1964, as amended (“Title VII”) to add the phrase “or applicants for employment” but did not so amend the ADEA means that Congress did not intend Section 4(a)(2) to apply to applicants is equally without merit. As the Rabin court explained, the amendment to Title VII was intended to Case 4:16-cv-00421 Document 77 Filed on 02/27/19 in TXSD Page 6 of 9 -7- restate the law as set out by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971). The amendment therefore supports the interpretation the ADEA applies to both employees and applicants. Rabin, 236 F.Supp.3d at 1131. The Supreme Court’s interpretation of Title VII is further support for Champlin’s interpretation of the ADEA provision at issue here. In Robinson v. Shell Oil Co., the Supreme Court interpreted the anti-retaliation provision of Title VII. That section states in part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual . . . . 42 U.S.C. § 2000e-3 (emphasis added). First, it should be noted that Congress apparently used the word individual to apply to those potentially subject to retaliation by employment agencies, which naturally include applicants for employment. In addition though, the Supreme Court interpreted the first sentence of the anti-retaliation provision and noted the expansive meaning of the word “employee” in the statute to include former employees. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Then Supreme Court also noted: Other sections also seem to use the term “employees” to mean something other than current employees. Section 701(c) defines “employment agency” as “any person regularly undertaking . . . to procure employees for an employer or to procure for employees opportunities to work for an employer . . . .” 42 U.S.C. § 2000e(c). This language most naturally is read to mean “prospective employees.” Section 701(e) uses identical language when providing that a labor organization affects commerce if it “operates a hiring hall or hiring office which procures employees for an employer . . . .” 42 U.S.C. § 2000e(e). Case 4:16-cv-00421 Document 77 Filed on 02/27/19 in TXSD Page 7 of 9 -8- Id. at n. 3. In other words, according to the Supreme Court, the word “employee” is read to include individuals other than those with a current employment relationship with the employer, and if that is the case, surely the word “individual” can as well. The Rabin Court agrees. Rabin, 236 F.Supp.3d at 1129. Accordingly, the better reading of the ADEA provision is that it includes prospective employees or applicants for employees. At the least, the provision is ambiguous and the EEOC’s interpretation is entitled to deference. III. CONCLUSION For the foregoing reasons, Champlin requests Quantlab’s Motion for Judgment should be denied. PRAYER WHEREFORE, Plaintiff Jeffrey S. Champlin requests the Court deny Defendant Quantlab Financial, LLC’s Rule 12(c) Motion for Judgment on the Pleadings and that he receive such other and further relief to which he may show himself justly entitled. Case 4:16-cv-00421 Document 77 Filed on 02/27/19 in TXSD 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 27th 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 77 Filed on 02/27/19 in TXSD Page 9 of 9