Opinion
Civil Action No. 3:04-CV-1277-M.
January 3, 2005
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's First Amended Motion to Dismiss Pursuant to Rule 12(b)(6) and Motion for a More Definite Statement, filed on September 13, 2004. Plaintiff has not responded to these Motions. For the reasons described below, Defendant's Motion to Dismiss is DENIED and Defendant's Motion for a More Definite Statement is GRANTED in part and DENIED in part.
Plaintiff Michael Lacey alleges that the Defendant City of Desoto discriminated against him on the basis of age. Plaintiff, a former City of Desoto Police Officer, is alleging three causes of action: (1) Plaintiff alleges that he was discriminated against on the basis of age when the Defendant decided not to promote him to the rank of corporal; (2) Plaintiff alleges he was discriminated against on the basis of age when the Defendant decided not to select him as a C.I.D. Investigator; and (3) Plaintiff alleges that he was suspended and then fired in retaliation for his filing charges of discrimination with the Equal Employment Opportunity Commission ("EEOC").
Plaintiff allegedly was near the top of the list for promotion to the rank of corporal. He further alleges that he was passed over for promotion in favor of four younger officers. In addition, Plaintiff was not selected as a C.I.D. Investigator. Plaintiff complained to the EEOC about being passed over for these opportunities. On March 15, 2004, Plaintiff obtained a Right to Sue Letter from the EEOC. After receiving his Right to Sue Letter, Plaintiff was suspended and then discharged, purportedly for unauthorized personal use of a cellular phone and/or performance of an allegedly illegal arrest. Plaintiff alleges that his discharge was in retaliation for his filing charges with the EEOC. Plaintiff filed this suit on June 10, 2004.
Defendant has moved to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted. Defendant argues that Plaintiff's suit fails to state a valid claim for three reasons. First, Defendant argues that an issue in this case has already been litigated in state court. Second, Defendant avers that the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (2004), does not apply to the Plaintiff because he was a law enforcement officer discharged in accordance with a bona fide hiring plan. Third, Defendant contends that the Plaintiff has alleged no specific facts showing that any decisions regarding his employment were made with an improper motive.
First, Defendant contends that res judicata bars the Plaintiff from litigating the propriety of his non-promotion because this issue was already litigated in another judicial proceeding. The rules of res judicata encompass two separate but linked preclusive doctrines: (1) true res judicata or claim preclusion, and (2) collateral estoppel or issue preclusion. Kaspar Wire Works, Inc. v. Leco Eng'g Mach., Inc., 575 F.2d 530, 535-36 (5th Cir. 1978). This case concerns the application of collateral estoppel. Collateral estoppel "generally refers to the effect of a prior judgment in foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, whether or not the issue arises on the same or a different claim." New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001).
The Defendant alleges that a state court has already reviewed and rendered judgment on Plaintiff's non-promotion. The Defendant requests that the Court take judicial notice of the fact that Lacey v. Desoto et al, No. 03-13413-J, was heard in the 191st Judicial District Court of Dallas County and a judgment was entered on June 10, 2004, the same day this Complaint was filed. However, Defendant did not provide a copy of the judgment to this Court. This Court has no way of knowing any of the pertinent details of that proceeding, or even if the party in that case is the same Mr. Lacey who is before this Court. Thus, the Court declines to take judicial notice of the contents of documents filed in the state court, when those documents have not been presented. The Court will not dismiss Plaintiff's age discrimination claim based solely on Defendant's assertion that this issue has already been litigated.
Defendant also avers that Plaintiff's "remaining claims are currently before arbitrators, and those decisions will likewise be binding upon Plaintiff." Def. Br. Mot. Dismiss at 6. The Court will not engage in speculation as to whether unspecified claims before arbitrators should preclude any other issues before this Court.
Second, Defendant argues that Plaintiff's Complaint improperly relies on the ADEA, which does not provide a cause of action for him because of an exception in the ADEA that would allow for the discharge of law enforcement officers based on their age, pursuant to a proper hiring or retirement plan. 29 U.S.C. § 623(j)(2) (2004) (stating that it is not unlawful for a municipality "to discharge any individual because of such individual's age if such action is taken pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this Act."). Plaintiff contends that the stated reasons for his suspension and ultimate discharge were unauthorized personal use of a cellular phone and performance of an allegedly illegal arrest. Plaintiff avers that these stated reasons are pretextual and that he was actually fired in retaliation for bringing charges of discrimination against the Defendant.
When deciding a Rule 12(b)(6) motion, the Court accepts "the [factual] allegations of the complaint as true, and resolv[es] 'any ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff.'" Jones v. ALCOA, Inc., 339 F.3d 359, 362 (5th Cir. 2003) (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)). Therefore, the Court assumes that the Defendant discharged Plaintiff in retaliation for his filing charges of discrimination with the EEOC and his discharge was not pursuant to a bona fide hiring or retirement plan. This being the case, the "bona fide hiring or retirement plan" exception in the ADEA would not apply, and the termination may be the basis of a retaliation claim. See Holt v. JTM Indus., 89 F.3d 1224, 1225 (5th Cir. 1996) ("Section 623(d) of the ADEA protects 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 under the ADEA."). Plaintiff shall be allowed to proceed with his claim that he was suspended and ultimately terminated in retaliation for filing charges of discrimination with the EEOC. Thus, Defendant's Motion to Dismiss is DENIED as to Plaintiff's retaliation claim.
Defendant also contends that Plaintiff's Complaint should be dismissed because he has alleged no specific facts showing that employment decisions, with respect to his employment, were made with any improper motive. The Supreme Court has held that an "employment discrimination complaint need not include [specific facts establishing a prima facie case of discrimination] and instead must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (citing FED. R. CIV. P. 8(a)(2)). However, at the same time, 'conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'" Jones, 339 F.3d at 362 (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)).
As to Plaintiff's claim that he was discriminated against when the Defendant declined to select him as a C.I.D. Investigator, it is unclear from his pleading why Plaintiff believes he was discriminated against. Plaintiff alleges that he "has been denied equal employment opportunities by the Defendants [sic] and was discriminated against by Defendant because of his age." Pl. Am. Compl. ¶ 8. That bold assertion without more is not enough to allow Plaintiff's claims of age discrimination to proceed. See, e.g., Swierkiewicz, 534 U.S. at 514 (allowing an ADEA and race discrimination suit to proceed where the Plaintiff's "[C]omplaint detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination."). Plaintiff does not state if he was older or younger than the person selected as a C.I.D. Investigator; in fact, he does not state whether anyone was selected to be a C.I.D. Investigator. Plaintiff does not even allege that he was qualified for the position. Plaintiff alleges no facts other than the fact that he was not selected. His bare claim of discrimination is not enough. See Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999) ("Finally, a [C]omplaint, which contains a "bare bones" allegation that a wrong occurred and which does not plead any of the facts giving rise to the injury, does not provide adequate notice."). The Court finds that Plaintiff has not sufficiently alleged a claim of age discrimination in Defendant's decision to not select him as a C.I.D. Investigator. However, due to the liberal pleading requirements of the Federal Rules of Civil Procedure, it is preferable that the Plaintiff be given an opportunity to replead this allegation properly rather than to incurr dismissal of this cause of action at this stage. See 2-12 MOORE'S FEDERAL PRACTICE — CIVIL § 12.36 (2004) ("Despite the courts' general disfavor toward granting motions for more definite statement, the generous reading called for by the Rules' concept of notice pleading makes such motions preferable to dismissal under Rule 12(b). . . ."). Thus, the Defendant's Motion for a More Definite Statement is GRANTED as to Plaintiff's age discrimination claim for Defendant's failure to select him as a C.I.D. Investigator and Defendant's Motion to Dismiss is DENIED as to this cause of action.
Plaintiff's claim of age discrimination in the Defendant's decision not to promote him is sufficient to withstand Defendant's Motion to Dismiss. Plaintiff is only required to give "a short and plain statement of the claim . . ." Swierkiewicz, 534 U.S. at 508. Plaintiff, however, has gone farther than that. He has directly alleged every element necessary to prove age discrimination. The four elements of a charge of age discrimination are:
(1) [Plaintiff] belongs to a protected class; (2) [Plaintiff] was qualified for the job [he] sought; (3) despite [Plaintiff's] qualifications, [he] was rejected; and (4) after [Plaintiff] was rejected, the employer promoted, hired, or continued to seek applicants with [his] qualifications. . . . Plaintiff may alternatively satisfy the fourth element by showing that [he] was either (a) replaced by someone outside the protected class, (b) replaced by someone younger, or (c) otherwise discriminated against because of [his] age.Patrick v. Ridge, No. 3:01-CV-0152-P, 2004 U.S. Dist. LEXIS 154, *10 (N.D. Tex., Jan. 6, 2004) rev'd on other grounds, 2004 U.S. App. LEXIS 25987 (internal citations omitted). First, Plaintiff alleges that he was 53 years old at the time of Defendant's allegedly discriminatory conduct. The ADEA protects employees over the age of 40. 29 U.S.C. § 631 (2004). Second, Plaintiff alleges that he was ranked number two on the list of persons eligible for promotion. The Court assumes that being ranked number two on the list of eligible persons means that an individual is qualified for promotion. Third, Plaintiff alleges that he was passed over for the promotion to corporal. Fourth, Plaintiff alleges that four younger officers were promoted instead of him. These allegations are sufficiently pled to survive Defendant's Rule 12(b)(6) Motion to Dismiss. Thus, Defendant's Motion to Dismiss is DENIED as to Plaintiff's claim of age discrimination in Defendant's failure to promote him.
In the alternative, Defendant has moved for a more definite statement. This Motion is DENIED as to Plaintiff's retaliation claim and Plaintiff's claim of age discrimination due to Defendant's decision not to promote him. Plaintiff's claims are not so vague as to render the Defendant unable to respond. See Dreamers Candles, Ltd. v. Eli, No. 3:00-CV-2133-G, 2001 U.S. Dist. LEXIS 10361, *24 (N.D. Tex. 2001) ("When a party moves under Rule 12(e) for a more definite statement, the court is afforded discretion to determine whether the [C]omplaint is such that a party cannot reasonably be required to frame a responsive pleading. . . . A pleading is sufficient if it is clear enough to serve the purpose of notice pleading contemplated by the rules."). Plaintiff's allegations are sufficient to place the Defendant on notice of the charges which he must defend against. Therefore, Defendant's Motion for a More Definite Statement is DENIED as to Plaintiff's retaliation claim and Plaintiff's claim of age discrimination in Defendant's decision not to promote him.
Having considered Defendant's Motions, the Court DENIES the Motion to Dismiss. Defendant's Motion for a More Definite Statement is GRANTED as to Plaintiff's age discrimination claim in Defendant's decision not to select him as a C.I.D. Investigator. Plaintiff shall replead this allegation by January 18, 2005, or this cause of action will be stricken.