Starkey v. The Hertz Corporation

Motion to Dismiss for Failure to State a Claim

W.D. Tex.February 16, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION JON STARKEY, Plaintiff, v. THE HERTZ CORPORATION, Defendant. § § § § § § § § § § CIVIL ACTION NO. 1:16-CV-1106-SS DEFENDANT’S PARTIAL MOTION TO DISMISS Defendant The Hertz Corporation (“Hertz” or the “Company”) files this Partial Motion to Dismiss Plaintiff’s retaliation claim under Federal Rule of Civil Procedure 12(b)(6) or in the alternative, 12(c). I. INTRODUCTION This is an employment case. Plaintiff Jon Starkey (“Starkey”), a former General Manager for Hertz, brings claims against his former employer under the Age Discrimination in Employment Act (“ADEA”) and the Texas Labor Code, claiming that Hertz discriminated against him because of his age and retaliated against him for opposing alleged age discrimination. This motion only concerns Starkey’s retaliation claims under the ADEA and the Texas Labor Code. Starkey claims Hertz terminated his employment after “he told his supervisor that he was not sure there was a valid reason to lay off” one employee instead of an allegedly younger employee. This is an insufficient allegation of protected conduct and fails to allege a prima facie case of discrimination. His claims should therefore be dismissed. Case 1:16-cv-01106-SS Document 8 Filed 02/16/17 Page 1 of 7 2 II. SUMMARY OF MATERIAL FACTS Starkey was the General Manager for Hertz’s Austin, San Antonio, El Paso, and South Texas off-airport zones (the “Austin-San Antonio Zone”). In early 2015, Hertz opted to reduce costs and increase efficiencies across the Company through a variety of measures, including the implementation of a nationwide reduction-in-force in May 2015. As part of the reduction-in- force, Starkey, as the General Manager, was tasked with reducing the number of employees in his region. Dkt. 1-1 at ¶ 20. Starkey claims his supervisor, Brian Liberman, the Southwest Zone General Manager, directed him to lay off one employee in lieu of an allegedly younger employee. Id. at ¶¶ 20-21. Starkey alleges: “he told his supervisor that he was not sure there was a valid reason to lay off the worker instaed [sic] of laying off the younger worker.” Id. at ¶ 22. Starkey was subsequently discharged as part of the nationwide reduction-in-force. Starkey now claims his discharge was retaliatory because of his alleged statement to Liberman. III.LEGAL STANDARD Federal Rules of Civil Procedure 12(b)(6)1 and 12(c) provide for dismissal of claims that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. See Armstrong v. U.S. Dept. of Hous. & Urban Dev., CIV.A.SA-03-1233 FB, 2004 WL 1279913, at *1 (W.D. Tex. June 3, 2004). Rule 8 of the Federal Rules of Civil Procedure requires Starkey to craft a complaint which contains enough allegations of fact to state a claim to relief that is plausible on its face. “[T]he pleading standard Rule 8 announces . . . demands more than an unadorned, the-defendant-unlawfully-harmed me 1Although a Rule 12(b) motion traditionally must be made prior to filing a responsive pleading, an exception is made when the original suit was filed in state court. See Smith v. Bank of Am. Corp., No. A-13-CV-193 LY, 2013 WL 12033215, at *3–4 (W.D. Tex. May 1, 2013), report and recommendation adopted, No. A-13-CV-193-LY, 2013 WL 12033379 (W.D. Tex. Aug. 5, 2013) (“Rule 12’s directions on the timing of filing a motion to dismiss thus [does] not govern the actions of defendants prior to removal.”). In any event, since a Rule 12(c) motion to dismiss need not be filed prior to the answer, this Partial Motion to Dismiss is timely under either Rule 12(b)(6) or Rule 12(c). Case 1:16-cv-01106-SS Document 8 Filed 02/16/17 Page 2 of 7 3 accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Similarly, “conclusory allegations or legal conclusions set forth as factual allegations will not prevent dismissal.” Shabazz v. Tex. Youth Comm’n, 300 F. Supp. 2d 467, 470 (N.D. Tex. 2003). Starkey’s retaliation claims fail to meet the standard of facial plausibility. IV. ARGUMENT AND AUTHORITIES A. An actionable claim of retaliation must allege protected conduct.2 The ADEA and the Texas Labor Code protect employees from retaliation for opposing acts of age discrimination, or for charging, testifying, assisting, or participating in any manner in an investigation, proceeding, or litigation. 29 U.S.C. § 623(d); TEX. LAB. CODE ANN. § 21.055. A plaintiff establishes a prima facie case of retaliation by showing: (1) that he engaged in protected activity; (2) that there was an adverse employment action; and (3) that there was a causal connection between the participation in the protected activity and the adverse employment decision. Holt v. JTM Indus., Inc., 89 F.3d 1224, 1225 (5th Cir. 1996); see also Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 n.2 (5th Cir. 2001) (noting Texas state courts “have articulated the same elements for establishing a prima facie case of retaliation as federal courts.”). Therefore, a showing that a plaintiff failed to engage in any protected activity would “negate any possible retaliation claim under the ADEA and TCHRA because engagement in 2 The standards under the Texas Labor Code are virtually identical to the ADEA. Hovanas v. Am. Eagle Airlines, Inc., 3:09-CV-0209-B, 2009 WL 4639492, at *4 (N.D. Tex. Dec.8, 2009) (“The requirements for establishing a prima facie discrimination or retaliation claim under the TCHRA mirror those of their ADEA counterparts.”); see also Martinez v. Wilson Cnty., No. 04-09-002330CV, 2010 WL 114407, at *6 (Tex. App.—San Antonio Jan.13, 2010, no pet.) (“‘Because our state statute tracks its federal counterpart . . . we may consider analogous federal case law in the interpretation and application of our Texas statute.’”) (citations omitted). Therefore, Hertz will jointly address Starkey’s retaliation claims. Case 1:16-cv-01106-SS Document 8 Filed 02/16/17 Page 3 of 7 4 protected activity is a required element of a prima facie claim under both statutes.” Hovanas, No 3:09-CV-0209-B, 2009 WL 4639492, at *5.3 An employee engages in protected activity when he opposes an activity he reasonably believes constitutes age discrimination. Brown v. United Parcel Serv. Inc., 406 F. App’x 837, 840 (5th Cir. 2010) (per curiam) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348-59 (5th Cir. 2007). To qualify as protected activity the complaint must at least alert an employer to the employee’s reasonable belief that unlawful discrimination is at issue, complaining of unfair or undesirable treatment will not suffice. Richard v. Cingular Wireless LLC, 233 F. App’x, 334, 338 (5th Cir. 2007); Brown, 406 F. App’x at 840. Complaints to employers that do not complain of conduct protected by the statute do not constitute protected activities. Cavazos v. Springer, No. B-06-058, 2008 WL 2967066, at *7 (S.D. Tex. Aug. 1, 2008). Where complaints “[are] not sufficiently clear or detailed for a reasonable employer to understand them, in light of both content and context, as an assertion of rights protected by the [anti-discrimination statute] and a call for the protection of such rights [,]” such complaints do not constitute protected activity. Skaggs v. Van Alstyne Indep. Sch. Dist., 4:16-CV-00227-CAN, 2017 WL 77825, at *16 (E.D. Tex. Jan. 9, 2017) (internal citation omitted). B. Starkey did not allege that he engaged in protected conduct. Starkey did not allege any protected conduct—his sole supporting allegation is that he simply “told his supervisor that he was not sure there was a valid reason to lay off the worker.” Dkt. 1-1 at ¶ 22. This statement, even if assumed true, did not provide Hertz fair notice that 3 Courts also look to case law interpreting the anti-retaliation provision of Title VII for guidance with respect to the retaliation provisions under ADEA and TCHRA. See Holt, 89 F.3d at 1226 n. 1; Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 252 n.18 (5th Cir. 1997). Case 1:16-cv-01106-SS Document 8 Filed 02/16/17 Page 4 of 7 5 Starkey had opposed any practice made unlawful by the ADEA or the Texas Labor Code; the alleged complaint did not even mention age discrimination. Starkey neither complained about age discrimination nor gave Hertz fair notice that he was asserting rights protected by the ADEA or the Texas Labor Code and calling for their protection. There is no allegation that the statement was “in opposition” to a discriminatory act. At best, Starkey was merely stating his opinion to his supervisor that the employee should be retained. A statement is protected by the anti-retaliation provision if that complaint asserts a violation of the law. Paulissen v. MEI Techs., Inc., 942 F. Supp. 2d 658, 674 (S.D. Tex. 2013); see also Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008) (analyzing the issue under the Fair Labor Standards Act (FLSA) and asserting that “not all abstract grumblings or vague expressions of discontent are actionable complaints.”). Starkey did not mention age or any other protected class; nor was his statement sufficient to put Hertz on notice that he was actually making a complaint. Therefore, his retaliation claim does not “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Cnty. of Travis ex rel. Hamilton v. Manion, 03-11-00533-CV, 2012 WL 1839399, at *8 (Tex. App.—Austin May 17, 2012, no pet.) (no protected activity where plaintiff did not allege or cite any discriminatory conduct or treatment); Martinez v. Wilson Cnty., No. 04- 09-002330CV, 2010 WL 114407, at *3 (a complaint of unfair treatment and harassment did not put the employer on notice that the complaint was based on discrimination of a protected characteristic). In Skaggs, for example, merely rebuffing a supervisor’s retirement suggestion was insufficient to constitute protected activity. Skaggs, 4:16-CV-00227-CAN, 2017 WL 77825, at *17. There, the Plaintiff rebuffed her supervisor any time the topic of her retirement arose, but Case 1:16-cv-01106-SS Document 8 Filed 02/16/17 Page 5 of 7 6 she never alerted him to any belief that his suggestions (or any other behavior) constituted unlawful discrimination. Thus, the court dismissed her claim of age-based retaliation because her rebuffing statements did not constitute the protected conduct required to state a claim for retaliation. The district court held that that her alleged complaint did not provide “fair notice that she was asserting rights protected by the ADEA and calling for their protection.” Id. Further, Starkey’s statement did not have the requisite specificity to put Hertz on notice that he was making a complaint. The Fifth Circuit has consistently held that making vague complaints to an employer without reference to an unlawful employment practice does not constitute protected activity. Tratree v. BP N. Am. Pipelines, Inc., 277 F. App’x 390, 395 (5th Cir. 2008) (“Complaining about unfair treatment without specifying why the treatment is unfair . . . is not protected activity.”); Turner, 476 F.3d at 348-49 (protected opposition must at least alert an employer to the employee’s reasonable belief that unlawful discrimination is at issue). Here, Starkey’s alleged statement makes no allegation of age discrimination; thus, his alleged statement cannot be protected conduct. Dismissal of the retaliation claim is therefore appropriate. See Turner v. Baylor Richardson Med. Ctr., CIV.A. 303CV2139P, 2005 WL 1313414, at *13 (N.D. Tex. May 31, 2005), aff’d, 476 F.3d 337, 348-49 (5th Cir. 2007) (holding that plaintiff’s alleged email complaint “does not constitute protected activity” because “the e- mail [plaintiff] references does not complain of racism; it contains no discussion of racial discrimination.”). V. CONCLUSION Defendant Hertz respectfully requests that Plaintiff Starkey’s age-based retaliation claims be dismissed with prejudice and that Hertz be awarded any other relief to which it is entitled. Case 1:16-cv-01106-SS Document 8 Filed 02/16/17 Page 6 of 7 7 Respectfully submitted, /s/ Daniel A. Verrett Bruce A. Griggs State Bar No. 08487700 bruce.griggs@ogletreedeakins.com Daniel Verrett State Bar No. 24075220 daniel.verrett@ogletreedeakins.com Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 301 Congress Avenue, Ste. 1150 Austin, Texas 78701 512-344-4700 512-344-4701 (Fax) ATTORNEYS FOR THE HERTZ CORPORATION CERTIFICATE OF SERVICE I hereby certify that on the 16th day of February, 2017, a true and correct copy of the foregoing document, Defendant’s Partial Motion to Dismiss, was filed using the electronic filing system, which will transmit a Notice of Electronic Filing to the following counsel of record: Robert J. Wiley Colin Walsh Jairo Castellanos ROB WILEY P.C. 1011 San Jacinto Blvd., Suite 401 Austin, Texas 78701 Facsimile: (512) 287-3084 cwalsh@robwiley.com Attorneys for Plaintiff /s/Daniel A. Verrett Daniel A. Verrett Case 1:16-cv-01106-SS Document 8 Filed 02/16/17 Page 7 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION JON STARKEY, Plaintiff, v. THE HERTZ CORPORATION, Defendant. § § § § § § § § § § CIVIL ACTION NO. 1:16-CV-1106-SS ORDER On this day, the Court considered Defendant’s Partial Motion to Dismiss Plaintiff’s retaliation claims under the ADEA and Texas Labor Code. Having considered the motion, the response, if any, and the other pleadings on file, the Court is of the opinion that the motion should be GRANTED. It is therefore ORDERED that Plaintiff’s retaliation claims under the ADEA and Texas Labor Code are dismissed with prejudice. SIGNED this _____ day of ___________________, 2017. _________________________________ SAM SPARKS UNITED STATES DISTRICT JUDGE Case 1:16-cv-01106-SS Document 8-1 Filed 02/16/17 Page 1 of 1