Champlin v. Manpower Inc.

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

S.D. Tex.February 28, 2019

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JEFFREY S. CHAMPLIN, Plaintiff, vs. EXPERIS US, INC., & QUANTLAB FINANCIAL, LLC, Defendants. § § § § § § § § § § § NO. 4:16-CV-0421 DEFENDANT QUANTLAB FINANCIAL, LLC’S REPLY IN SUPPORT OF ITS RULE 12(b)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Champlin’s response to Quantlab’s 12(b)(1) motion to dismiss gives this Court no reason to keep this case on its docket. Champlin alone bears the burden of demonstrating this Court has jurisdiction over his ADEA disparate impact claim against Quantlab. Champlin failed to make this showing. Champlin’s singular attempt to meet the “injury in fact” prong of Article III standing was to reargue the futility theory Judge Harmon previously rejected in her ruling on Quantlab’s 12(b)(6) motion. The evidence, moreover, establishes that Champlin suffered no injury because—in his own words to the EEOC—after receiving the email at issue in this case, Champlin made abundantly clear he was not interested in being considered for the position. Champlin also failed to establish any causal connection between Quantlab’s alleged actions and his alleged injury, and failed to show that his alleged injury would be redressed by a favorable decision, especially because of his stated intention never to accept a job from Quantlab. Because the Court has no jurisdiction to hear this case, the Court should grant Quantlab’s 12(b)(1) Motion. Case 4:16-cv-00421 Document 78 Filed on 02/28/19 in TXSD Page 1 of 8 2 I. CHAMPLIN SUFFERED NO INJURY IN FACT A. Judge Harmon Previously Rejected Champlin’s Futility Argument, Which Is Now the Law of the Case. Champlin argues he suffered an injury in fact because Quantlab did not hire him for the software engineer in trading support position due to his age. Dkt. 75 at 4-5. Admitting he never applied for the job, Champlin supports his alleged injury in fact with his opinion that applying would have been futile. The evidence supporting this theory—consisting solely of Champlin’s own declaration (see Response at Exhibit 5 ¶ 4)— is identical to the allegations in his Original Petition, which Judge Harmon twice ruled insufficient to plausibly plead futility. See Dkt. 31 at 13. In granting, in part, Quantlab’s 12(b)(6) motion, Judge Harmon cited to her own order and opinion partially granting Experis’s 12(b)(6) motion, and said “Champlin did not offer sufficient evidence that it would be futile to [apply for the position],” and, therefore, did not state a prima facie case of his ADEA claim. Id. The existence of a prior ruling invokes the law-of-the-case doctrine, which provides that settled issues will not be revisited during the pendency of a lawsuit. Massey v. Novartis Pharm. Corp., 46 F. Supp. 3d 688, 691 (W.D. Tex. 2014). “The law-of-the-case doctrine ‘posits that when a court decides upon a rule of law, that decision should continue to govern the same issue in subsequent stages in the same case.’” Medical Center Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011) (quoting United States v. Castillo, 179 F.3d 321, 326 (5th Cir.1999)). “The doctrine applies not only to issues decided explicitly, but also to everything decided by necessary implication.” Breen v. Tex. A&M Univ., 485 F.3d 325, 336–37 (5th Cir. 2007) (quoting Office of Thrift Supervision v. Felt, 255 F.3d 220, 225 (5th Cir. 2001)), abrogated in part on other grounds by Breen v. Texas A&M Univ., 494 F.3d 516, 518 (5th Cir. 2007); see United States v. Horton, 622 F.2d 144, 148 (5th Cir.1980) (holding that a ruling on a “motion for partial Case 4:16-cv-00421 Document 78 Filed on 02/28/19 in TXSD Page 2 of 8 3 summary judgment is the law of the case on the issues decided”). Judge Harmon’s decision is the law of the case, and dictates that Champlin cannot manufacture standing by relying on the futility doctrine. B. Champlin Presented No Evidence that He Suffered an Injury In Fact. Even were this Court inclined to consider the issue anew—which it should not— Champlin’s evidence fails to satisfy the standards of the futility doctrine. The futility doctrine applies only when the applicant was deterred by a known and consistently enforced policy of discrimination. See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999); Willard v. City of Lubbock, No. Civ.A. C-05-565, 2006 WL 2794932, at *5–6 (S.D. Tex. Sept. 26, 2006) (holding that the Plaintiff’s evidence of repeated rejections for promotion, relegation to a separate work location, failure to make Plaintiff aware of opportunities for promotion, and implication that Plaintiff was not qualified for promotion were all “no evidence” supporting futile gesture theory). Champlin’s only alleged evidence to support his injury is a single email and his subjective opinion. This evidence is a far cry from a “known and consistently enforced policy of discrimination.” Because Champlin presented no evidence of an injury in fact (i.e. Champlin was not injured by not receiving a job for which he never applied), he failed to meet his burden of establishing Article III standing. II. NO CAUSAL LINK EXISTS BETWEEN THE EMAIL AND CHAMPLIN’S ALLEGED INJURY Champlin also failed to meet his burden of establishing the second prong of Article III standing—a causal link between the alleged discriminatory act and the alleged injury. Here, even if the Court were to find Champlin suffered an injury in fact—which he did not—any causal link between Quantlab’s email and Champlin’s alleged injury is belied by Champlin’s own representations to the EEOC. Specifically, Champlin confirmed to the EEOC “with strong Case 4:16-cv-00421 Document 78 Filed on 02/28/19 in TXSD Page 3 of 8 4 profanity” that he “no longer wished to be referred” to Quantlab for the job. See Sep. 29, 2015 Letter (Champlin 00091), attached as Exhibit 1 (“Experis has stated that after you objected to their email, they offered to refer you to the job in question or other jobs and that you informed them with strong profanity that you no longer wished to be referred. You verified this to [Stephen Damiani, Lead Systemic Investigator for the EEOC] on July 17, 2014 and to [an EEOC] paralegal before that time.”). Regardless of Champlin’s allegations of futility, Champlin made abundantly clear that he had no interest in pursuing the position and, in fact, never applied. Because Champlin unequivocally did not want to apply for the job he did not receive, no link exists between the email at issue here and Champlin’s alleged injury of not receiving a job for which he did not want to apply. III. A FAVORABLE DECISION WILL NOT REDRESS CHAMPLIN’S ALLEGED INJURY Finally, even if Champlin could establish the first two prongs of Article III standing— which he cannot—Champlin cannot meet his burden of establishing the final prong because a favorable ruling will not redress his alleged injury. Indeed, nearly five years ago, Champlin told the EEOC that “he would not accept a job offer from [Quantlab] now.” See Apr. 2, 2014 Statement (Champlin 00123), attached as Exhibit 2. In his Original Petition, Champlin asserts that he seeks lost wages and benefits in the past and future as damages for his ADEA disparate impact claim, Dkt. 1-1 ¶ 6.3 in case 4:16-cv-02987 (pre-consolidation). Because it is impossible for Champlin to recover lost wages for a job he did not want to apply for, did not apply for, was not qualified for, and would not have accepted if offered, a favorable decision in this case would not redress his alleged injuries. Champlin has not met his burden of establishing standing. The Court should grant Quantlab’s Rule 12(b)(1) Motion. Case 4:16-cv-00421 Document 78 Filed on 02/28/19 in TXSD Page 4 of 8 5 IV. FURTHER DISCOVERY IS FUTILE Champlin asks this Court to entertain further discovery so that he can try to show that he was qualified for the job at Quantlab and, therefore, suffered an injury in fact when he was not selected for the position. See Response at 5–8. This argument misses the point. Champlin bears the burden of presenting evidence sufficient to establish his Article III standing. Glass v. Paxton, 900 F.3d 233, 238 (5th Cir. 2018). As described in Sections I-III above, the discovery Champlin seeks still would not confer Article III jurisdiction. More specifically, to support its Rule 12(b)(1) Motion, Quantlab presented the sworn affidavit of Jay Allen, Quantlab’s Director of Human Resources. See Dkt. 61-4 ¶ 2. Under oath, Mr. Allen testified that “Quantlab would not have hired Champlin into the Software Engineer in Trading Support role, even if he had applied because he does not have the required qualifications for that position.” Id. ¶ 7. Champlin’s response is that he needs discovery because he has a subjective belief that he was qualified for the job, but this ipse dixit statement does not justify disregarding the evidence of Mr. Allen’s clear, unequivocal, and undisputed sworn statement. Further discovery is not warranted when Champlin cannot establish a plausible basis for believing that the specified facts exist. Moreover, Champlin cannot show how the requested discovery would influence the outcome of the motion. He has not—and cannot—show that he wanted to apply for the job or would have accepted the job had it been offered. Indeed, as noted above, Champlin told the EEOC that he did not want Experis to submit him for the position and that he would not have accepted the job from Quantlab even if it had been offered. More discovery on whether Champlin was or was not qualified for the job is unlikely to impact this dispositive fact. As such, the discovery he claims he needs is wholly irrelevant to the issue of Article III standing and Case 4:16-cv-00421 Document 78 Filed on 02/28/19 in TXSD Page 5 of 8 6 should not delay a prompt ruling. Finally, Champlin urges the Court to deny Quantlab’s motion or to continue the motion because of the existence of a “fact question” concerning Champlin’s qualifications. Response at p. 5. First, there is no fact question as to qualification, as seen through the eyes of the employer. See Dkt. 61-4 ¶ 7 (Champlin “does not have the required qualifications for that position.”). But even if there were a fact question regarding qualification, the existence of a fact question does not preclude the Court’s grant of the 12(b)(1) motion. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987) (“the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims”). A court may dismiss plaintiff’s claim for lack of subject matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Clark v. Tarrant County, Texas, 798 F.2d 736, 741 (5th Cir. 1986). Champlin’s qualification for the job at issue is not an express element of his disparate impact claim, but rather, pertains solely to the issue of standing. See Powell v. Dallas Morning News LP, 776 F. Supp. 2d 240, 257–58 (N.D. Tex. 2011) (setting out the elements of a disparate impact claim under the ADEA as (1) the existence of a facially neutral policy or practice; and (2) statistical disparity arising from the alleged policy or practice). As such, the Court is empowered to determine factual disputes pertaining to qualification based on undisputed facts in the record, and on its resolution of disputed facts. V. PLAINTIFF LACKS STANDING AS A NON-EMPLOYEE Not only does Champlin lack Article III Constitutional standing, but as fully set forth in Quantlab’s Rule 12(c) Motion for Judgment on the Pleadings (Dkt. 69), Champlin also lacks statutory standing under the ADEA. As a non-employee, Champlin is not able to bring a claim Case 4:16-cv-00421 Document 78 Filed on 02/28/19 in TXSD Page 6 of 8 7 for disparate impact. See Dkt. 68; Kleber v. CareFusion Corp., -- F.3d --, 2019 U.S. App. LEXIS 2192, at *10 (7th Cir. Jan. 23, 2019) (en banc) (“In the end, the plain language of § 4(a)(2) leaves room for only one interpretation: Congress authorized only employees to bring disparate impact claims”); see also Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016) (en banc) (refusing to recognize ADEA disparate impact claim brought by non- employee). Dismissal is therefore appropriate on the basis of lack of statutory standing as well. VI. PRAYER For the foregoing reasons, as well as those reasons set forth in Quantlab’s 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, Quantlab asks that Champlin’s sole remaining claim against Quantlab be dismissed with prejudice. Of Counsel Travis J. Odom State Bar No. 24056063 Federal ID No. 997750 LITTLER MENDELSON, P.C. A PROFESSIONAL CORPORATION 1301 McKinney Street Suite 1900 Houston, TX 77010 713.951.9400 (Telephone) 713.951.9212 (Telecopier) todom@littler.com /s/ G. Mark Jodon G. Mark Jodon (Attorney-In-Charge) State Bar No. 10669400 Federal I.D. No. 6052 LITTLER MENDELSON, P.C. A PROFESSIONAL CORPORATION 1301 McKinney Street Suite 1900 Houston, TX 77010 713.951.9400 (Telephone) 713.951.9212 (Telecopier) mjodon@littler.com ATTORNEYS FOR DEFENDANT, QUANTLAB FINANCIAL, LLC Case 4:16-cv-00421 Document 78 Filed on 02/28/19 in TXSD Page 7 of 8 8 CERTIFICATE OF SERVICE I hereby certify that on the 28th day of February, 2019, a true and correct copy of the foregoing document was sent by the court’s ECF filing system to: G. Scott Fiddler Drew Barber FIDDLER & ASSOCIATES, P.C. 1004 Congress, 3rd Floor Houston, Texas 77002 ATTORNEYS FOR PLAINTIFF Yvette V. Gatling Littler Mendelson, P.C. 1650 Tysons Blvd., Suite 700 Tysons Corner, VA 22102 Kevin Little Littler Mendelson, P.C. 1301 McKinney St., Suite 1900 Houston, Texas 77010 ATTORNEYS FOR DEFENDANT, EXPERIS /s/ Travis J. Odom Travis J. Odom Case 4:16-cv-00421 Document 78 Filed on 02/28/19 in TXSD Page 8 of 8