Champlin v. Manpower Inc.

RESPONSE to 76 MOTION to Dismiss and MOTION for Summary Judgment

S.D. Tex.March 20, 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 DEFENDANT EXPERIS US, INC.’S RULE 12(b)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND RULE 56 MOTION FOR SUMMARY JUDGMENT _____________________________________________________________________ JACKSON WALKER LLP 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 Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 1 of 20 -ii- TABLE OF CONTENTS Table of Authorities ....................................................................................................................... iii I. Introduction and Factual Summary ......................................................................................1 II. Summary of Argument ........................................................................................................4 III. Argument and Authorities....................................................................................................5 A. Standing and Subject Matter Jurisdiction ................................................................5 1. Champlin Need not Apply in a Disparate Impact Case When the Challenged Policy or Practice Causes a Disparity in Responses Rates and, Besides, Champlin Has Presented Evidence that Applying for the Position Would Have Been Futile ..............................................................................6 2. The Motion Should Be Denied, or in the Alternative, Champlin is Entitled to Discovery on Whether He was Qualified for the Position.......................9 B. The Email Job Posting Need Not be Facially Neutral ...........................................12 1. The Email Job Posting Need Not be Facially Neutral ...............................12 2. Champlin Has Presented Evidence of a Policy or Practice and Discovery is Ongoing......................................................................................................13 C. Summary Judgment is Premature Whether There is a Statistical Disparity ..........14 IV. Conclusion .........................................................................................................................15 Prayer ............................................................................................................................................ 15 Certificate of Service .................................................................................................................... 16 Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 2 of 20 -iii- TABLE OF AUTHORITIES Case Law Acha v. Beame, 531 F.2d 648 (2nd Cir. 1976) ..............................................................................................8 Bacon v. Honda of America Mfg. Inc., 70 F.3d 565 (6th Cir. 2004) ..............................................................................................11 Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570 (5th Cir. 2003) ............................................................................................14 Beard v. Whitley County REMC, 656 F.Supp. 1461 (N.D. Ind. 1987) ..................................................................................13 Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973) ..............................................................................................8 Cole v. Yellow Freight System, Inc., 646 F.2d 444 (10th Cir. 1981) ..........................................................................................11 Collins-Pearcy v. Mediterranean Shipping Co. (USA) Inc., 698 F.Supp.2d 730 (S.D. Tex. 2010) ................................................................................11 Dothard v. Rawlinson, 433 U.S. 321 (1977) .............................................................................................................6 Hairston v. McLean Trucking Co., 520 F.2d 226 (4th Cir. 1975) ...............................................................................................8 Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977) .........................................................................................................7, 8 Int’l Shortstop Inc. v. Rally’s Inc., 939 F.2d 1257 (5th Cir. 1991) ...........................................................................................11 Johnson v. Louisiana, 351 F.3d 616 (5th Cir. 2003) ...............................................................................................9 McDermott v. Lehman, 594 F.Supp. 1315 (D. Me. 1984) .........................................................................................8 Melendez v. Illinois Bell Telephone Co., 79 F.3d 661 (7th Cir. 1996) ..............................................................................................11 Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 3 of 20 -iv- Robinson v. Polaroid Corp., 732 F.2d 1010 (1st Cir. 1984) ...........................................................................................11 Rich v. Martin Marietta, 22 F.2d 333 (10th Cir. 1975) ............................................................................................11 U.S. v. N. L. Indus., Inc., 479 F.2d 354 (8th Cir. 1973) ...............................................................................................8 Vuyanich v. Republic Nat. Bank of Dallas, 723 F.2d 1195 (5th Cir. 1984) ..........................................................................................12 Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 108 S. Ct. 2777 (1988) ..................................................................................3 Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 4 of 20 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 DEFENDANT EXPERIS US, INC.’S RULE 12(b)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND RULE 56 MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE ANDREW S. HANEN: Plaintiff, Jeffrey S. Champlin, files this Plaintiff’s Response to Defendant Experis US, Inc.’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction and Rule 56 Motion for Summary Judgment and would show the following: I. INTRODUCTION AND FACTUAL SUMMARY 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. On July 11, 2013, Champlin received an email from Experis giving notice of an open job position for a Software Engineer in Trading Support within an undisclosed (Quantlab) company’s Operations/Support team. 2 The job description included the following language: “[w]e are not looking for anyone with overspecialization or HelpDesk/1st level support 1 Defendants, Experis US, Inc. (herein “Experis”) and Quantlab Financial, LLC (herein “Quantlab”), shall collectively be referred to as “Defendants.” 2 Exhibit 1, ¶ 6, Exhibit 1A. “Exhibit 1” shall refer to the attached Declaration of Jeffrey Champlin. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 5 of 20 -2- 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, so culturally . . . .” from an email from its client, Quantlab. In the email from Quantlab, there were other job postings with similar discriminatory language, which were to also 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 Experis sent the same job position for a Software Engineer in Trading Support email it sent Champlin to approximately 1,000 individuals.5 Subsequently, Quantlab hired five substantially younger individuals to fill the Software Engineer in Trading Support positions, namely, Michael Vitek (age 28), Kevin Lin (age 24), James Barwick (age 34), Alvin Guggenheim (age 30), and Jerry Wagner (age 42).6 At the time of the email job posting, Champlin was fifty-six (56) years old.7 3 Exhibit 1A. 4 Exhibit 2, Answer to Interrogatory No. 6; Exhibit 6. “Exhibit 2” shall refer to Defendant’s Second Amended Answers to Plaintiff’s First Set of Interrogatories attached hereto. “Exhibit 6” shall refer to documents Bates-stamped Experis 182 through Experis 183, attached hereto. 5 See Document 76-1. 6 Exhibit 3, Answer to Interrogatory No. 7. “Exhibit 3” shall refer to Defendant’s Objections and Answers to Plaintiff’s Interrogatories Nos. 1-8. 7 Exhibit 1, ¶ 2. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 6 of 20 -3- Champlin has diligently litigated the case. 8 When Experis failed to fully respond to Champlin’s written discovery or requests for supplementation, the Court compelled responses on November 7, 2018.9 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 those who responded, respectively. 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.10 However, Experis has failed to identify individuals who responded to, submitted a résumé for, or completed a job application in response to the email.11 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 the non-party witness, Dionne, for December 28, 2018, January 3, 2019, and January 10, 2019. Champlin took 8 See generally Document 38, Document 80, and Document 81. Exhibit 7, ¶ 5. “Exhibit 7” shall refer to the Affidavit of G. Scott Fiddler, attached hereto. 9 Document 52. 10 See Document 76, p. 20, n.3; Document 76-1. 11 Experis only identifies candidates it submitted to Quantlab and a list of recipients of the job posting email and does not identify all the résumés or applications it received in response to the job posting email. (See Exhibit 2, Answer to Interrogatory No. 4 and Document 76, p. 20, n.3; Document 76-1). However, those candidates, as well as the individuals selected to fill the position, are not even on the list of the email recipients. Cf. Exhibit 2, Answer to Interrogatory No. 4 and Exhibit 3, Answer to Interrogatory No. 7 and Document 76-1. Quantlab has produced résumés and applications it contends it received for the job posting, but it does not state those résumés and applications came in response to the job posting email. (Exhibit 3, Answer to Interrogatory No. 3). Therefore résumés and applications may have come from other recruiters or advertising efforts and may not even be relevant to doing a statistical analysis of the response to the job posting email. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 7 of 20 -4- a certificate of non-appearance on January 3, 2019, and January 10, 2019,12 when Dionne failed to appear for deposition, although having been duly served with subpoena on both occasions. Champlin has filed a motion to compel Dionne’s appearance and to recover fees and expenses from Dionne for his failing to respond to the subpoena and appear, which is currently pending with this Court.13 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.14 The parties are currently working together to secure a date for Defendants’ corporate representatives and Champlin’s depositions. II. SUMMARY OF ARGUMENT Champlin need not apply in a disparate impact case where the disparate impact alleged is the failure to apply. Besides this, Champlin has presented a fact issue on whether it would have been futile to apply. Champlin has presented evidence he was qualified for the job position in question. Experis and the declarant, Jay Allen (“Allen”), misstate the requirements in the job posting email. In the alternative, Champlin should be provided the opportunity for further discovery on whether, among other things, his qualifications were on par with or exceeded the qualifications for those hired for the position and which were actually required for the position. 12 See Document 80-4 and Document 80-5. 13 Document 80. 14 See Exhibit 4. Experis only later offered a date for deposition during the first week of February 2019, but Champlin’s attorney was in the midst of transiting to a new law firm and was unable to take the deposition then. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 8 of 20 -5- The job posting email need not be facially neutral. The cases cited by Experis are distinguishable. The mere presence of discriminatory language in the job posting email does not exonerate Experis from liability for disparate impact discrimination. Champlin has provided evidence of a practice of discrimination because those already in the job were “young,” the job posting was for six (6) positions, and those who were hired were all substantially younger than Champlin. Statistics are not required to prove a disparate impact claim. A reasonable jury could conclude from the evidence that the job posting email had a disparate impact on older individuals. Further, Champlin is entitled to further discovery because neither Experis nor Quantlab have provided information requested and needed by Champlin for a statistical analysis of the impact of the job posting email. III. ARGUMENT AND AUTHORITIES A. Standing and Subject Matter Jurisdiction Experis’s motion is essentially the same motion Quantlab filed on January 10, 2019.15 Champlin responded to Quantlab’s Motion to Dismiss16and incorporates that argument and evidence by reference here. Experis fundamentally makes two arguments in support of its Rule 12(b)(1) motion: (1) that Champlin cannot show it would have been futile to apply for the position; and (2) Champlin was not qualified for the position. Champlin will respond to each in order. 15 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 (“Quantlab Motion to Dismiss”) (Document 61). 16 Document 75. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 9 of 20 -6- 1. Champlin Need Not Apply in a Disparate Impact Case When the Challenged Policy or Practice Causes a Disparity in Response Rates and, Besides, Champlin Has Presented Evidence that Applying for the Position Would Have Been Futile Experis contends there is no standing because Champlin did not engage with Experis to apply for the position and Experis never refused to forward any application on Champlin’s behalf. Of course, there was no application to forward to Quantlab because Champlin did not apply for the position with Experis. Champlin did not apply for the position with Experis because the job posting email Quantlab authored and Experis endorsed and distributed17 made it clear to do so would have been futile.18 Initially, it should be noted that Experis’s argument is without merit because the very basis for Champlin’s disparate impact claim is that the job posting email had a disparate impact on those who received it, including Champlin, because it discouraged Champlin (and others) from applying for the open positions.19 None of the cases cited by Experis in support of its request for dismissal on this basis are disparate impact claims where the adverse impact is the failure to apply in response to a job posting alleged to be the cause of the disparate impact. As the Supreme Court noted in a disparate impact case: There is no requirement, however, that a statistical showing of disproportionate impact must always be based on analysis of the characteristics of actual applicants. [internal citation omitted]. The application process might itself not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory. [citation omitted]. Dothard v. Rawlinson, 433 U.S. 321, 330 (1977). 17 Document 15, p. 2, ¶ 4.5. 18 Exhibit 1, ¶ 4. 19 Exhibit 1, ¶ 4; Document 15, p. 3, ¶ 4.5. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 10 of 20 -7- A plaintiff need not apply for a position if to do so would be futile. See Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324, 365-67 (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. at 329. 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. 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.”20 From the email one can fairly infer Quantlab had no intention of hiring him because he was not a “fit” for this “young, eager 20 See Exhibit 1, Exhibit 1A. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 11 of 20 -8- 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; none were near Champlin’s age. 21 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 apply?”); U.S. v. N. L. Indus., Inc., 479 F.2d 354, 369 (8th Cir. 1973). Champlin did not apply for the job because the wording of the email made it clear to him that to do so would be futile.22 The evidence, as described below, about the ages of those who were hired bear out that applying would have been futile.23 Accordingly, Experis’s argument is without merit. As shown in his Plaintiff’s Motion for Reconsideration of Rule 12(b)(6) Dismissal of Disparate Treatment Claims,24 Judge Harmon’s reasoning in finding against Champlin as a matter of law on his futility argument was flawed and based on application of an improper legal standard. As explained there, Judge Harmon misapplied Teamsters and the futility doctrine and did not operate from the premise that whether it would have been futile for Champlin to apply for the job is a fact question. See McDermott v. Lehman, 594 F.Supp. 1315, 1323 (D. Me. 1984). 21 Exhibit 3, Answer to Interrogatory No. 7. 22 See Exhibit 1, ¶ 4. 23 Exhibit 3, Answer to Interrogatory No. 7. 24 Document 83. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 12 of 20 -9- 2. The Motion Should be Denied, or in the Alternative, Champlin is Entitled to Discovery on Whether he was Qualified for the Position As already addressed in response to Quantlab’s sister motion to dismiss, Champlin has diligently sought and needs additional discovery to determine what the actual, as opposed to merely posted, qualifications were for the job. Experis’s 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). First, Champlin has presented evidence he was qualified for the job.25 Experis claims Champlin was not qualified for the job because he allegedly did not have experience with any programming language required for the position and not familiar with Linux. Experis cites to Champlin’s responses to Quantlab’s requests for admission. However, the requests for admission do not ask Champlin to admit that he was not familiar with Linux (or the other programming languages), only that he was not “proficient.”26 One can be familiar with a programming language and not proficient. Champlin was familiar and experienced with Linux.27 The job posting email does not state the applicant had to be “proficient” in any of the programming languages listed or be familiar with Linux, just that he or she have “[k]nowledge of a programing language . . . .”28 Moreover, the programming languages listed are obviously examples and are not exclusive because they are followed by a “etc.”29 In fact, Champlin denied he was not proficient in any programing language.30 Experis’s reliance on the declaration of Jay Allen (“Allen”), a human resources representative, is equally misplaced because Allen does not 25 Exhibit 1, ¶¶ 3, 5. 26 See Exhibit 5, Answers to Requests Nos. 26, 27, 28, 29, and 30. “Exhibit 5” shall refer to Plaintiff’s Objections and Responses to Quantlab Financial, LLC’s Request for Admissions. 27 Exhibit 1, ¶ 5. 28 See Exhibit 1, Exhibit 1A. 29 See Exhibit 1, Exhibit 1A. 30 Exhibit 5, Answer to Request No. 25. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 13 of 20 -10- state the job required proficiency in any programing language. 31 Additionally, Allen’s declaration misrepresents the job posting because the job posting email does not state the applicant had to have knowledge of “any of the following computer languages (a) C#, Java, Python, C++.” Allen omitted the “etc.” from the end of the list of languages. Allen also states a requirement was experience with Linux and/or Windows Operation Systems administration.32 Champlin had experience with both.33 Champlin could perform the job as advertised.34 However, further 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 twenty-five years of experience in the industry would have satisfied any job requirements.35 This discovery could show that Champlin was 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. Additionally, Champlin still needs discovery (already requested from Experis) showing who actually responded to the email job posting so a statistical analysis can be attempted on the response rate.36 31 See Document 61-4, ¶ 5. 32 See Document 61-4, ¶ 5. 33 Exhibit 1, ¶ 5. 34 Exhibit 1, ¶ 3. 35 See Exhibit 7, ¶ 2. 36 Exhibit 7, ¶ 3. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 14 of 20 -11- 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. 37 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 Experis.38 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 Experis on pages 13 and 14 of its motion were cases decided without the opportunity for full discovery. Cole v. Yellow Freight System, Inc.,39 on which Experis relies, was an appeal from a full blown trial, not a determination of a Rule 12(b)(1) motion. The other cases cited by Experis 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 v. Polaroid Corp., 732 F.2d 1010 (1st Cir. 1984) (trial); Collins-Pearcy v. Mediterranean 37 Exhibit 3, Answer to Interrogatory No. 7. 38 Exhibit 7, ¶ 4. 39 646 F.2d 444 (10th Cir. 1981). Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 15 of 20 -12- 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, Experis’s Motion to Dismiss on the issue of whether Champlin was qualified for the job or would have been hired, should be denied because this is a factual issue. See Johnson, 351 F.3d at 626. Alternatively, the motion is premature, and Champlin should be afforded the opportunity to complete discovery before the motion should be ruled upon. Champlin’s motion to compel the appearance of Dionne is currently pending,40 as is Champlin’s motion to compel discovery responses from Quantlab.41 Champlin’s attorneys have requested deposition dates for corporate representatives of Experis and Quantlab and is currently working with Defendants’ attorneys to schedule those depositions. Accordingly, Champlin seeks a continuance of the determination of this part of the motion until after he has had a chance to do the discovery necessary to respond to it. B. The Email Job Posting Need Not be Facially Neutral 1. The Email Job Posting Need Not be Facially Neutral First, it should be noted that Champlin has pled that the job posting email was discriminatory but that in the event it is found not to be discriminatory then it certainly had a disparate impact on Champlin and others in the protected age group.42 In other words, if it was not discriminatory so as to permit the application of the futility doctrine, then it is apparently neutral. If the facts seem unusual cast as a disparate impact claim, it is only because the disparate treatment claim should not have been dismissed. As mentioned above, Champlin has filed a motion for reconsideration that is currently pending in this Court. 43 However, if the Court finds 40 Document 80. 41 Document 81. 42 Document 15, p. 4, ¶ 6.1. 43 Document 83. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 16 of 20 -13- the job posting email was not discriminatory, then Champlin’s disparate impact claim is the alternative. Second, the mere presence of discriminatory language in the email does not protect Experis from a disparate impact claim. The language regarding not wanting more than “1-5 years experience,” while not discriminatory on its face would have a disparate impact on older potential applicants because the older one is the more likely one is to have a higher level of work experience. It would be an odd finding that an employer could avoid a disparate impact claim by sprinkling some discriminatory language in an otherwise facially neutral policy that has a disparate impact. 2. Champlin Has Presented Evidence of a Policy or Practice and Discovery is Ongoing Experis cites Beard for the proposition that a single act cannot form the basis for a disparate impact claim. However, in Beard the plaintiff alleged the policy was the decision not to give the office and clerical group a wage increase. Beard v. Whitley County REMC, 656 F.Supp. 1461, 1469 (N.D. Ind. 1987). Here, Champlin is not claiming the failure to hire him was the policy that forms the basis for his disparate impact claim but the job posting email. Besides, the job posting email is itself evidence of a policy or practice of not hiring older people because it admits the group of people currently in the position are “young.” Additionally, the posting was for six positions, not just one.44 If six is not a practice, what is? Ten? Twenty? Furthermore, the five who were hired were all younger as well.45 Only discovery will tell the extent to which Experis had recruited for Quantlab and whether Experis was responsible for the other “young” employees also working in the position. To that extent, a determination is premature until discovery completed. 44 See Exhibit 6, p. 1. 45 Exhibit 3, Answer to Interrogatory No. 7. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 17 of 20 -14- C. Summary Judgment is Premature Whether There is a Statistical Disparity The Fifth Circuit has held a plaintiff may use either statistical or non-statistical evidence in establishing a prima facie case of disparate impact. Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 579 (5th Cir. 2003), citing Page v. U.S. Indus., Inc., 726 F.2d 1038, 1053 (5th Cir. 1984). Consequently, Experis’s contention that Champlin must present statistical evidence of a disparate impact is wrong. A reasonable jury could certainly conclude from the language of the job posting email that older individuals would be disproportionately dissuaded from applying for the job. Experis argues Champlin has all he needs to do a statistical analysis. This is not correct. Champlin has a list of names of alleged recipients of the discriminatory job posting email and résumés from individuals that allegedly applied for the position; however, as mentioned above, neither Experis nor Quantlab have produced the applications or résumés received from those to whom the email was sent.46 Experis wrongly attempts to bootstrap Champlin’s denial of certain requests for admission as evidence Champlin has all the information he needs to conduct a statistical analysis for his disparate impact claim. Champlin rightly denied the requests for admission because he does have some information. This obviously is not the same as admitting he has enough information or all the information he is entitled to have. For example, Champlin does have information suggesting the ages of persons who received notice (RFA 37) because he does have the resumes of those five who were hired for the job (assuming they were responding to the email, which is still not clear ); the ages of persons who did not apply (RFA 38) because he did not apply and he knows his age; the number of persons receiving the notice who might have been 46 See Note 11, supra. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 18 of 20 -15- qualified (RFA 39) because he received it and he knows his qualifications; the age of persons who actually applied (RFA 40) because he has been provided the resume of the five who were given the jobs; other job openings expressing a preference based on age (RFA 41) because there were six openings, not a single opening; and which applicants were qualified for the job (RFA 42) because he can identify himself as qualified. 47 Champlin’s denials to requests for admission are not evidence of anything that supports Experis’s motion. IV. CONCLUSION Champlin requests Defendant Experis US, Inc.’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction and Rule 56 Motion for Summary Judgment be denied. In the alternative and additionally, Champlin requests he be provided the opportunity for further discovery on the issues of those individuals who received and responded to the job posting email, which of those individuals’ applications were submitted to Quantlab, and the qualifications necessary for performing the job, among other things. PRAYER WHEREFORE, Plaintiff Jeffrey S. Champlin requests the Court deny Defendant Experis US, Inc.’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction and Rule 56 Motion for Summary Judgment and that he receive such other and further relief to which he may show himself justly entitled. 47 See Exhibit 5, Answers to Requests Nos. 37, 38, 39, 40, 41, and 42. Case 4:16-cv-00421 Document 85 Filed on 03/20/19 in TXSD Page 19 of 20 -16- 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 20th day of March 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 85 Filed on 03/20/19 in TXSD Page 20 of 20