Accordingly, Plaintiff’s complaint must be DISMISS WITH PREJUDICE against all defendants for failing to state a cognizable claim under A.D.E.A. B. PLAINTIFF FAILS TO STATE A RETAILATION CLAIM UNDER A.D.E.A.: The ADEA also prohibits retaliation: an employer may not discriminate against an employee who has “opposed any practice made unlawful by this section” or who has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.” 29 U.S.C.A. § 623(d).

Id. Here, EEOC’s retaliation claim is premised on the Participation Clause of the anti-retaliation provision of the ADEA, 29 U.S.C. § 623(d), which mirrors the Participation Clause in Title VII, 42 U.S.C. §2000e-3(a). The EEOC claims Ms. Potts participated in a statutorily-established right to file a charge of discrimination, and that Defendant retaliated against her for doing so by filing and continuing to litigate the State Lawsuit against her.

The language also distinguishes between employees and applicants multiple times. See 29 USC § 623(c)(2) (“adversely affect [any individual's] status as an employee or as an applicant for employment, because of such individual's age”); Id. § 623(d) (extending protection to “applicants for Case 4:16-cv-00421 Document 61 Filed in TXSD on 01/10/19 Page 21 of 28 14 employment” and “applicant[s] for membership” in a labor organization). If Congress intended to include provision for disparate impact claims by applicants or even by unqualified individuals who never applied for the job, it would have used clear language including applicants and non- applicants as it did elsewhere in the statute. United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (“where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). 3. A Comparison to Title VII Shows that Congress Has Not Authorized Non- Employees (and Non-Applicants) to Bring Disparate Impact Claims Under the ADEA Section 703(a) of Title VII served as the model for § 4(a) of the ADEA.

That view that retirement-plan integration is not discriminatory has been codified into the private sector ADEA. 29 U.S.C. §§ 623(l)(1)(a)(ii). However, the lack of a comparable express provision in the public sector ADEA does not mean that such integration is discriminatory in the public sector.

. 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d); 29 C.F.R. § 1614.101(b). I. THE EXHAUSTION REQUIREMENT UNDER TITLE VII AND THE ADEA Both Title VII and the ADEA require that a plaintiff file a timely charge of discrimination with the Equal Employment Office (“EEO”) Commission as a precondition to filing an action in federal court, absent limited circumstances under the ADEA.

Two types of discrimination claims are authorized under ADEA: disparate treatment and disparate impact. Age Discrimination in Employment Act of 1967, § 4(a)(1, 2), 29 U.S.C. § 623(a)(1, 2); Munoz, 200 F.3d at 299; Smith v. City of Jackson, Miss., 544 U.S. 228, 240, 125 S.Ct. 1536 (2005)

Contrary to Quantlab’s recitation of the reasoning in Kleber, as cogently explained in Rabin, the statutory language supports a conclusion that applicants may bring disparate impact claims under the ADEA. As the court discusses in Rabin, the ADEA uses the phrase “any individual” rather than “employee” when identifying those people covered by Section 4(a)(2) (29 U.S.C. § 623(a)(2)). However, in other sections where Congress was identifying those it sought to protect, it used the word “employees.”

r reasonably believed employee’s drug test results were caused by cocaine consumption, despite employee’s alternative explanation of test results); Adkins v. Excel Mining, LLC, 214 F.Supp. 3d 617, 625 (E.D. Ky. Oct. 4, 2016) (holding no unlawful pretext under ADA where employer “honestly believed” employee violated company drug policy, “regardless of whether he actually did”); Martinets v. Corning Cable Systems, LLC, 2002 WL 31906341 at *3 (N.D. Tex. Dec. 26, 2002) (explaining that even if test results were in error, as plaintiff alleged, this would not be sufficient to prove disability discrimination under the ADA); Graham v. Long Island R.R., 230 F.3d 34, 44 (2d Cir. 2000) (explaining that “[e]ven assuming a jury were later to find that the laboratory’s drug test was either improperly administered or inaccurate,” this would not establish that the employer acted with unlawful discriminatory motive); O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-12 (1996); 29 U.S.C. § 623(a)(1) evidence of unlawful pretext under ADA where employer “honestly believed” employee violated company drug policy, “regardless of whether he actually did”); Martinets v. Corning Cable Systems, LLC, 2002 WL 31906341 at *3 (N.D. Tex. Dec. 26, 2002) (explaining that even if test results were in error, as plaintiff alleged, this would not be sufficient to prove disability discrimination under the ADA); Graham v. Long Island R.R., 230 F.3d 34, 44 (2d Cir. 2000) (explaining that “[e]ven assuming a jury were later to find that the laboratory’s drug test was either improperly administered or inaccurate,” this would not establish that the employer acted with unlawful discriminatory motive). Case 3:17-cv-00040 Document 74 Filed in TXSD on 06/22/18 Page 20 of 22 18 arrived at work under the influence to have a 0.

Id. at 2350 (quoting 29 U.S.C. § 623(a)(1) (emphasis in the Court’s opinion)).9 The Gross Court held that the ADEA does not authorize a mixed-motives age discrimination claim. Id.

Case 3:16-cv-03054 Document 23 Filed 06/06/18 Page 12 of 14 PageID #: 74   13 4828-6694-4102 v4 2016212-000090 06/06/2018 B. Plaintiff's Claim of Retaliation The ADEA prohibits employers from retaliating against employees for reporting age discrimination. 29 U.S.C. § 623(d). To establish a prima facie case of retaliation, a plaintiff must show that: (1) she was engaged in a protected activity, (2) the employer was aware that she had engaged in that activity, (3) the employer took an adverse employment action against the employee, and (4) there is a causal connection between the protected activity and the adverse action.