Wheeler v. Gables Residential Services Inc

Motion to Dismiss for Failure to State a Claim

N.D. Tex.March 22, 2017

DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND BRIEF IN SUPPORT - Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JAMES M. WHEELER § § Plaintiff, § § v. § CIVIL ACTION NO. 3:17-CV-449-G § GABLES RESIDENTIAL SERVICES, § INC., § § Defendant. § DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND BRIEF IN SUPPORT Defendant Gables Residential Services, Inc. (“Gables” or “Defendant”), by and through its counsel of record, files this Motion for Partial Dismissal and Brief in Support pursuant to Fed. R. Civ. P. 12(b)(6) and respectfully shows the Court as follows: I. SUMMARY Plaintiff James Wheeler (“Plaintiff” or “Wheeler”) has filed this lawsuit seeking relief under the Age Discrimination in Employment Act (“ADEA”) in connection with the termination of his employment from Gables. However, Plaintiff’s Original Complaint, in part, fails to state a claim upon which relief can be granted. In particular, Plaintiff attempts to assert an ADEA claim based on the vague allegation that Gables “followed a policy and practice of discrimination against Plaintiff.” (Complaint, Dkt. #1, ¶ 26). Plaintiff, however, fails to identify any specific policy or practice, other than to state that they include, but are not limited to “discriminating against Plaintiff in the terms, conditions, and privileges of employment based on his age, as well as harassing Plaintiff based on his age.” (Complaint, Dkt. #1, ¶ 26). For the reasons set forth below, such naked assertions are insufficient to satisfy the pleading requirements of Fed. R. Civ. 8, and Plaintiff’s ADEA claim based on such a “policy and practice” should be dismissed. Case 3:17-cv-00449-G-BN Document 8 Filed 03/22/17 Page 1 of 5 PageID 30 DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND BRIEF IN SUPPORT - Page 2 Plaintiff also asserts claims for past and future “compensatory damages” for “severe emotional distress, pain and suffering, and/or other non-pecuniary losses,” “mental anguish or emotional pain and suffering, inconvenience, and loss of enjoyment of life;” as well as exemplary damages. (Complaint, Dkt. #1, ¶¶ 27-28, 32-33). However, such damages are not available under the ADEA, and such claims should be dismissed. II. DISCUSSION A. Legal Standard. Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcraft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). When a pleading fails to satisfy this requirement, Rule 12(b)(6) authorizes a court to dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. B. Plaintiff Has Not Properly Pled a Valid ADEA Claim Based on a Discriminatory “Policy or Practice.” In his Original Complaint, Plaintiff claims that Gables violated the ADEA when it “followed a policy and practice of discrimination because of his age,” including “discriminating against Plaintiff in the terms, conditions, and privileges of employment” and “harassing Plaintiff Case 3:17-cv-00449-G-BN Document 8 Filed 03/22/17 Page 2 of 5 PageID 31 DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND BRIEF IN SUPPORT - Page 3 based on his age.” (Complaint, Dkt. #1, ¶ 26). Such vague assertions are insufficient to support an ADEA claim. For example, in Oinonen v. TRX, Inc., the plaintiffs asserted ADEA claims under both a disparate treatment and disparate impact theory, contending that the defendants discriminatorily terminated their employment in a reduction-in-force. 2010 U.S. Dist. LEXIS 9530 (N.D. Tex. Feb. 3, 2010) (Lynn, J.). The court granted the defendants’ motion to dismiss the ADEA claims because the plaintiffs failed to isolate and identify specific employment practices that would show discriminatory intent or a disproportionate impact on employees over the age of 40. Id. at *10, 14. Further, the court held that the mere possibility that a more specific policy or procedure may be revealed in discovery is insufficient to survive a Rule 12(b)(6) motion to dismiss. Id. at *16 (“[A] plaintiff cannot ‘unlock the doors of discovery…armed with nothing more than conclusions’ in the hopes of meeting his or her pleading requirements under Rule 8.”) (quoting Iqbal, 129 S. Ct. at 1950). In this case, it is not entirely clear whether Plaintiff may be attempting to assert an ADEA claim based on a disparate treatment or disparate impact theory.1 In any event, as was the case in Oinonen, Plaintiff has failed to identify a specific policy or practice that he claims is discriminatory. Plaintiff’s allegations are nothing more than “naked assertion[s] devoid of further factual enhancement” that fail to satisfy the Rule 8 pleading requirements. Iqbal, 129 S.Ct. at 1949. Accordingly, Plaintiff’s ADEA claim based on any alleged policy or practice should be dismissed. 1 ADEA claims attacking a policy or practice sometimes indicate a disparate impact theory - i.e., that a facially neutral policy or practice disproportionately impacts employees over the age of 40. Plaintiff, however, indicates that the Gables followed an unspecified policy and practice “in the terms, conditions, and privileges of employment based on his age,” suggesting a disparate treatment theory. In any event, such vague allegations are insufficient to satisfy the pleading requirements under either theory for the reasons set forth herein. Case 3:17-cv-00449-G-BN Document 8 Filed 03/22/17 Page 3 of 5 PageID 32 DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND BRIEF IN SUPPORT - Page 4 C. Plaintiff’s Claims for Compensatory Damages and Exemplary Damages are Improper. Plaintiff has also asserted claims for past and future “compensatory damages” for “severe emotional distress, pain and suffering, and/or other non-pecuniary losses,” “mental anguish or emotional pain and suffering, inconvenience, and loss of enjoyment of life,” (Complaint, Dkt. #1, ¶¶ 27-28, 32-33). Plaintiff also asserts a claim for exemplary damages. (Complaint, Dkt. #1, ¶¶ 27-28, 32). However, such damages are not available under the ADEA. Dean v. Am. Sec. Ins. Co., 559 F.2d 1036 (5th Cir. 1977) (“[N]either general nor punitive damages are recoverable in private actions posited upon the ADEA.”); Owen v. STMicroelectronics, Inc., 2017 U.S. Dist. LEXIS 25210, at *15 (N.D. Tex. Feb. 23, 2017 (Boyle, J.) (“to the extent that [the plaintiff] attempts to seek compensatory damages for mental anguish and pain and suffering, as a matter of law the ADEA precludes this type of recovery”). Indeed, courts have recently granted Rule 12(b)(6) motions on these grounds, and the Fifth Circuit has approved of one such decision. Vaughan v. Anderson Reg’l Med. Ctr., 2017 U.S. App. LEXIS 2699 at *2 (5th Cir. Feb. 15, 2017) (holding that the district court properly granted a Rule 12(b)(6) motion dismissing pain and suffering and punitive damages claims); Owen, 2017 U.S. Dist. LEXIS 25210, at *15 (granting 12(b)(6) motion on claims for compensatory damages for mental anguish and pain and suffering). Accordingly, Plaintiff’s claims for such damages should be dismissed. III. CONCLUSION For the reasons stated above, Defendant respectfully requests that the Court:  dismiss Plaintiff’s purported ADEA claim based on a “policy and practice;”  dismiss Plaintiff’s claims for damages for compensatory damages for severe emotional distress, pain and suffering, and/or other non-pecuniary losses, mental anguish or emotional pain and suffering, inconvenience, and loss of enjoyment of life; and  grant Defendant any further relief to which the Court deems it justly entitled. Case 3:17-cv-00449-G-BN Document 8 Filed 03/22/17 Page 4 of 5 PageID 33 DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND BRIEF IN SUPPORT - Page 5 Respectfully submitted, By: /s/ Thomas E. Reddin THOMAS E. REDDIN Texas State Bar #16660950 treddin@winstead.com MARCUS BROWN Texas State Bar #24050340 mbrown@winstead.com THEANNA SEDLOCK Texas State Bar #24089243 tsedlock@winstead.com WINSTEAD PC 500 Winstead Building 2728 N. Harwood Street Dallas, Texas 75201 (214) 745-5400 (214) 745-5390 - FAX ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing was served via ECF and facsimile on this 22nd day of March, 2017, on all counsel of record in this matter. Marshay Howard Texas Bar No. 24083204 Howard & Associates 4144 N. Central Expressway, Suite 600 Dallas, TX 75204 Telephone: (469) 458-3540 Fax: (972) 308-6011 Email: mhoward@lawyersdemandingjustice.com ATTORNEY FOR PLAINTIFF /s/ Thomas E. Reddin Thomas E. Reddin 4825-4999-6613v.2 47859-4 Case 3:17-cv-00449-G-BN Document 8 Filed 03/22/17 Page 5 of 5 PageID 34