Champlin v. Manpower Inc.

REPLY in Support of 69 MOTION for Judgment

S.D. Tex.March 8, 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(c) MOTION FOR JUDGMENT ON THE PLEADINGS The three arguments Champlin raises in his response to Quantlab’s 12(c) motion for judgment on the pleadings, see Dkt. 77 (the “Response”) are meritless. First, Judge Harmon did not rule that ADEA disparate impact claims are available to non-employees. See id. at 4. Second, the ADEA’s disparate impact provision is not ambiguous and, therefore, the Chevron doctrine is inapplicable. Id. at 4–8; see also 29 U.S.C. § 623(a)(2) (statutory text). Third, aside from a single California district court, no other court in the United States has allowed a job applicant to bring an ADEA disparate impact claim against a putative employer. But even more critically, no court in the United States has ever allowed a non-applicant to bring an ADEA disparate impact claim against an employer with whom the would-be plaintiff never applied to work. Because the unambiguous statutory language forecloses Champlin’s claim, the Court should grant Quantlab’s Rule 12(c) Motion. (See Dkt. 69.) Case 4:16-cv-00421 Document 79 Filed on 03/08/19 in TXSD Page 1 of 8 2 I. JUDGE HARMON’S DECISION NOT TO RULE AT THE 12(B)(6) STAGE DOES NOT PRECLUDE RULING NOW To avoid dismissal, Champlin claims that Judge Harmon previously ruled that the ADEA permits disparate impact claims by non-employees. Resp. 4. This is false. Judge Harmon’s earlier ruling expressly declined to make this finding, and instead left the question for another day. See Dkt No. 31, at 15 (“The Court concludes that without binding authority at the 12(b)(6) stage, we should not dismiss Champlin’s disparate claim.”) (emphasis added). That day has come. Although the standard of review for Rule 12(b)(6) and Rule 12(c) motions may be identical, the purpose behind each motion is distinct. “Rule 12(b)(6) is concerned with the technical sufficiency of the allegations in the complaint . . . . Rule 12(c), in contrast, is concerned with the merits . . . .” Reed Elsevier, Inc. v. TheLaw.net Corp., 269 F. Supp. 2d 942, 947 (S.D. Ohio 2003) (distinguishing between a 12(b)(6) and a 12(c) motion); see also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1369, at 532– 33) (“The granting of a Rule 12(b) motion merely means that plaintiff has failed to satisfy one of the procedural prerequisites for asserting his claim for relief. A motion for judgment on the pleadings, however, theoretically is directed towards a determination of the substantive merits of the controversy. . . .”). The question of the ADEA’s scope is purely legal, turning solely on the interpretation of unambiguous statutory language. Regardless of whether the Court makes a ruling in the context of Quantlab’s Rule 12(c) Motion, Quantlab’s Rule 56 Motion for Summary Judgment, Quantlab’s Rule 12(b)(1) Motion, or on some other dispositive motion, it indisputably falls to the Court to decide this issue regardless of whether controlling authority from the Fifth Circuit or the United States Supreme Court currently exists. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the Case 4:16-cv-00421 Document 79 Filed on 03/08/19 in TXSD Page 2 of 8 3 law is.”). Because the plain language of the ADEA does not permit a disparate impact claim for non-employees, the Court should grant Quantlab’s Rule 12(c) Motion. Regardless of what the facts of this case may or may not be, it is axiomatic that Champlin cannot recover on a statutory claim that does not exist. II. AS THE ADEA’S DISPARATE IMPACT PROVISION IS UNAMBIGUOUS, THE EEOC’S REGULATION PLAYS NO ROLE HERE The thrust of Champlin’s Response is that, because the ADEA’s disparate impact provision is ambiguous, the Court must defer to the EEOC’s conclusion that the statute permits applicants to bring ADEA disparate impact claims. Resp. 4–8. As Quantlab’s Motion makes clear,1 Section 4(a)(2) of the ADEA is not ambiguous and does not extend disparate impact protection to non-employees. See Mot. 4–9. Critically, the EEOC’s regulation is relevant only if the statute is ambiguous. Absent ambiguity, the EEOC’s interpretation deserves no deference at all. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (“If the intent of Congress is clear [from statutory language], that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”). Said differently, when an agency interprets a statute in a manner inconsistent with its plain text, the plain text’s meaning continues to control. See Chevron, 467 U.S. at 842–43. This is precisely the situation here. Regardless of what the EEOC believes the ADEA’s disparate impact provision means, the provision’s language has only one reasonable interpretation: Disparate impact claims by employees are authorized; disparate impact claims by non-employees are not. In adjudicating this Quantlab’s Rule 12(c) Motion, the Court should ignore the EEOC’s 1 For the purpose of judicial efficiency, rather than repeating its arguments here, Quantlab incorporates into this Reply, as if set forth fully herein, its arguments contained on pages 4-9 of its Motion explaining why the ADEA unambiguously prohibits disparate impact claims by non-employees. Case 4:16-cv-00421 Document 79 Filed on 03/08/19 in TXSD Page 3 of 8 4 interpretation because the plain language of the ADEA unambiguously prohibits the claim Champlin—a non-applicant, non-employee—seeks to assert against Quantlab in this case. III. CHAMPLIN’S CASE AUTHORITY IS UNPERSUASIVE No federal court in the United States has ever permitted a non-applicant to bring an ADEA disparate impact claim against an employer. No Circuit Court in the United States permits applicants (i.e. non-employees) to bring ADEA disparate impact claims against employers with whom they applied but were not hired. See Kleber v. CareFusion Corp., 914 F.3d 480, 488 (7th Cir. 2019) (en banc) (no ADEA disparate impact claims for non-employees); Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 970 (11th Cir. 2016) (en banc) (same); Smith v. City of Jackson, 351 F.3d 183, 188 (5th Cir. 2003) (implicitly finding that the ADEA prohibits non-employees from bringing disparate impact claims). And no federal district court in Texas has ever permitted a non-employee to bring an ADEA disparate impact claim against an employer. Champlin asks the Court to ignore the jurisprudence of its sister courts because a lone court in the Northern District of California—in Rabin v. PricewaterhouseCoopers LLP, 236 F. Supp. 3d 1126 (N.D. Cal. 2017)—permitted a job applicant to bring an ADEA disparate impact claim against an employer with whom the applicant applied but was not hired. As Judge Harmon previously recognized, Rabin is not binding on this Court. And because Rabin is a legal outlier replete with suspect reasoning and construction, this Court should also find Rabin unpersuasive. To wit: • The Rabin court supported its decision to reject the Eleventh Circuit’s holding in Villarreal v. RJ Reynolds, 839 F.3d 958 (11th Cir. 2016) that section 4(a)(2) of the ADEA protects only employees on the basis that, in Griggs v. Duke Power Co., the Case 4:16-cv-00421 Document 79 Filed on 03/08/19 in TXSD Page 4 of 8 5 United States Supreme Court did not “suggest that only employees were entitled to bring suit” See id. at 1128–29. But as even the Rabin court acknowledges, the plaintiffs in Griggs were all employees. See id. at 1131. Thus, the question of whether 4(a)(2) protects non-employees was not considered in Griggs, and the lack of a “suggestion” (dicta) on the matter is indicative of nothing. • Similarly, the Rabin court’s reliance on Griggs to support its finding that “Supreme Court precedent supports an interpretation of section 4(a)(2) that permits job-seekers to bring disparate impact claims” is wrong because Griggs—again—involved only employees, not applicants who were not hired. • Finally, the Rabin court’s deference to the EEOC’s interpretation of the ADEA is incorrect for two reasons. First, as described in Section II above, Section 4(a)(2) of the ADEA is unambiguous. Second, the Rabin court itself found Section 4(a)(2) unambiguous (in favor of allowing applicants to assert ADEA disparate impact claims) and then, incorrectly, deferred to the EEOC’s regulations as if the statute were ambiguous. See id. at 1132 (“the Court believes the language of the statute, read in light of Griggs and Smith, makes plain that the ADEA permits job applicants to bring disparate impact claims”). In other words, the Rabin court reaches a holding that precludes Chevron deference, but then relies on it anyway. See id. at 1132-33. Such reasoning is of little value and the Court should not follow it. Champlin’s reliance on the Supreme Court’s decision in Robinson v. Shell Oil Co. is also misplaced. See Resp. 7–8. Unlike this case, Robinson did not involve an ADEA disparate impact claim. Robinson v. Shell Oil Co., 519 U.S. 337, 339-40 (1997) (identifying claim at issue as Title VII retaliatory discharge). How the United States Supreme Court construed language on Case 4:16-cv-00421 Document 79 Filed on 03/08/19 in TXSD Page 5 of 8 6 a claim and a statute that is not at issue here has no bearing on this case. The real issue in Robinson was whether certain statutory provisions of Title VII apply only to current employees or extend to cover former employees as well. Robinson, 519 U.S. at 339-40. Nothing in Robinson touches on whether an employee’s cause of action could also belong to job applicant or an individual who never applied for the job. But even if the Court were to find Champlin’s authority persuasive—which it should not do—Quantlab’s Rule 12(c) Motion remains meritorious. At best, Champlin has cited one case that permitted a job applicant to assert an ADEA disparate impact claim. In this case, however, Champlin never applied for the job. But even further, Champlin told Experis not to submit him for the position and also told the EEOC that he would not have accepted the job if offered. Said differently, Champlin was not even an applicant for the job. Champlin has cited no case— because none exists—where an individual who did not apply for a job was permitted to assert an ADEA disparate impact claim against an employer for not hiring the individual who never applied. Even if somehow the ADEA permits job applicants to bring disparate impact claims— which it does not—it does not permit strangers to assert such claims against employers for which they have never worked related to jobs for which they have never applied. The difficulties of conceiving a statistical analysis showing a disparate impact on non-applicants amply demonstrates the absurdity of Plaintiff’s position. Champlin lacks any binding or persuasive authority authorizing an ADEA disparate impact claim for non-applicants. Because no set of facts can create a legal cause of action for Champlin where none exists, the Court should grant Quantlab’s Rule 12(c) Motion and dismiss Champlin’s remaining ADEA disparate impact claims against Quantlab. Case 4:16-cv-00421 Document 79 Filed on 03/08/19 in TXSD Page 6 of 8 7 IV. PRAYER For the foregoing reasons, Quantlab asks that the grant Quantlab’s Rule 12(c) Motion and dismiss Champlin’s sole remaining claim against Quantlab 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 79 Filed on 03/08/19 in TXSD Page 7 of 8 8 CERTIFICATE OF SERVICE I hereby certify that on the 8th day of March, 2019, a true and correct copy of the foregoing document was sent by the court’s ECF filing system to: G. Scott Fiddler Jessica Lara 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 79 Filed on 03/08/19 in TXSD Page 8 of 8