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Downs v. United States Postal Service

United States District Court, W.D. Kentucky, Louisville Division

August 20, 2019

ELMER DOWNS Plaintiff
v.
UNITED STATES POSTAL SERVICE Defendant

          MEMORANDUM OPINION AND ORDER

          REBECCA GRADY JENNINGS, DISTRICT JUDGE

         Plaintiff 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 9].

         BACKGROUND[1]

         In 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. Id.

         In 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 session. Id.

         In 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].

         Downs 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.

         DISCUSSION

         A. Standard of Review.

         Under 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).

         To 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).

         B. Count I: Age Discrimination.

         Downs 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.

         When a 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 ...


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