United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS, DISTRICT JUDGE
Elmer Downs (“Downs”) brings this action against
Defendant United States Postal Service (“USPS”)
alleging violations of the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et seq., and
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000d et seq. [DE 1, Compl. at
4, ¶¶ 18-25]. USPS now moves to dismiss all claims
pursuant to Federal Rules of Civil Procedure 12(b)(6). [DE 9
at 27]. Briefing is complete, and the matter is ripe. [See DE
9-1, Mem. to Mot. to Dismiss; DE 10, Pl.'s Resp. to
Def.'s Mot. to Dismiss; DE 11, Reply]. For the reasons
below, the Motion is GRANTED IN PART and DENIED IN PART. [DE
1966, USPS hired Downs as a Distribution Clerk. [DE 1 at 2,
¶ 10]. During his thirty-three years with USPS, Downs
filed several complaints of race or gender discrimination.
Id. In 1999, Downs retired from USPS. Id.
Ten years later, Downs applied to be a mediator for USPS to
preside over informal Equal Employment Opportunity
(“EEO”) complaints. Id. at ¶ 11.
Downs alleges that he “was informed that he could not
be considered for a position because he had previously filed
an EEO complaint against the Postal Service.”
Id. Downs then filed an EEO claim of reprisal.
2011, USPS solicitated applications to fill investigator
positions with the National Equal Employment Opportunity
Investigative Services Office (“NEEOISO”).
Id. at ¶ 12. Downs applied to attend the Skills
Enhancement Training session (“training
session”). Id. After no response, Downs asked
about the status of his application and USPS informed him he
was not selected. Id. In August 2012, Downs filed an
EEO complaint against NEEOISO, which the parties settled in
March 2014. Id. As part of the settlement agreement,
USPS invited Downs to participate in a future training
2015, Downs participated in the training session that ran
from June 8 to June 12. Id. at ¶ 13. Downs
alleges that on June 10 he was informed he could not complete
the training session based on the failing grade from his last
homework assignment. Id. at ¶ 14. Downs also
alleges he received no prior warnings of his poor performance
and that he was unaware he needed to improve his performance
to remain in the training session. Id. at ¶ 14.
USPS contends that Downs could not successfully pass the
course because it was mathematically impossible when combined
with his other scores. [DE 9-1, Mem. to MTD].
filed this lawsuit against USPS alleging the reason given by
USPS for not allowing him to complete the training course was
a pretext for age discrimination and retaliation under the
ADEA and Title VII. [DE 1]. USPS moves to dismiss these
claims arguing that (i) Downs has no right to relief under
the ADEA or Title VII because he sought a position as an
independent contractor, not as an employee [DE 9-1 at 31];
and that (ii) Downs failed to adequately plead a retaliation
claim as the Complaint contains no facts causally connecting
Downs' EEO activity with his expulsion from the training
program. Id. at 30, n.3. In response, Downs argues
that, as a former USPS employee who engaged in protected
activity, he is protected from retaliation “regardless
of whether the later position he sought was an employee or
independent contractor.” [DE 10 at 38]. Alternatively,
Downs argues that whether the position was for an employee or
independent contractor requires factual analysis not
appropriate on a motion to dismiss. Id.
Standard of Review.
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
court must dismiss a complaint if it “fail[s] to state
a claim upon which relief can be granted[.]”
Fed.R.Civ.P. 12(b)(6). To state a claim, 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). When considering a motion to dismiss,
courts must presume all factual allegations in the complaint
to be true and make all reasonable inferences in favor of the
non-moving party. Total Benefits Plan. Agency, Inc. v.
Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434
(6th Cir. 2008) (citation omitted). The court must determine
whether “the claimant is entitled to offer evidence to
support the claims, ” not whether the plaintiff can
ultimately prove the facts alleged. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511 (2002) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
abrogated by Harlow v. Fitzgerald, 457 U.S. 800
(1982)). “But the district court need not accept a bare
assertion of legal conclusions.” Tackett v. M &
G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)
(citation omitted). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a
cause of action will not do. Nor does a complaint suffice if
it tenders naked assertion[s] devoid of further factual
enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citation and quotation omitted).
survive a motion to dismiss under Rule 12(b)(6), the
plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Traverse Bay
Area Intermediate Sch. Dist. v. Mich. Dep't of
Educ., 615 F.3d 622, 627 (6th Cir. 2010) (internal
quotation marks omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim becomes
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). “A complaint will be dismissed pursuant
to Rule 12(b)(6) if no law supports the claims made, if the
facts alleged are insufficient to state a claim, or if the
face of the complaint presents an insurmountable bar to
relief.” Southfield Educ. Ass'n v. Southfield
Bd. of Educ., 570 Fed.Appx. 485, 487 (6th Cir. 2014)
(citing Twombly, 550 U.S. at 561-64). To summarize,
the Court may grant a motion to dismiss “only if, after
drawing all reasonable inferences from the allegations in the
complaint in favor of the plaintiff, the complaint still
fails to allege a plausible theory of relief.”
Morris v. Murray St. Univ., No. CIV.A.
5:18-CV-156-TBR, 2019 U.S. Dist. LEXIS 104235, at *6 (W.D.
Ky. June 21, 2019).
Count I: Age Discrimination.
brings a claim of age discrimination under the ADEA alleging
that USPS “discriminated against Downs based on his age
when it refused to allow him to complete training to be
certified as an EEO Investigator.” [DE 1, ¶ 19].
Under the ADEA, “employers are prohibited from
discharging or otherwise discriminating against any employee
with respect to compensation, terms, conditions, or
privileges of employment because of that individual's
age.” Allen v. Highlands Hosp. Corp., 545 F.3d
387, 393 (6th Cir. 2008). Plaintiffs alleging age
discrimination have the initial burden of showing that age
was a determinative factor in the adverse employment action
taken against them. Colter v. Bowling Green-Warren Cty.
Reg'l Airport Bd., No. CIV.A. 1:17-CV-00118-JHM,
2017 WL 5490920, at *11 (W.D. Ky. Nov. 15, 2017) (citing
Allen, 545 F.3d at 394). To state a plausible age
discrimination claim, a plaintiff may present direct or
circumstantial evidence. Allen, 545 F.3d at 394.
“Direct evidence of discrimination is that evidence
which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the
employer's actions.” Id. at 393.
“Circumstantial evidence, on the other hand, is proof
that does not on its face establish discriminatory animus but
does allow a factfinder to draw a reasonable inference that
discrimination occurred.” Id.
plaintiff seeks to prove discrimination through indirect or
circumstantial evidence, courts apply the McDonnell Douglas
burden shifting framework. See McDonnell Douglas Corp. v.
Green,411 U.S. 792, 802 (1973), holding modified by
Hazen Paper Co. v. Biggins,507 U.S. 604 (1993). Under
this framework, a plaintiff must first establish a prima
facie case of discrimination. Allen, 545 F.3d at
394. To establish a prima facie case of age discrimination,
Downs must show that: (1) he is a member of a protected
class, (i.e., he is over 40-years-old); (2) he was subjected
to an adverse employment action; (3) he was qualified for the