United States District Court, E.D. Louisiana
ANTHONY F. BROWN
ON-SITE FUEL SERVICE, INC.
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
the Court is defendant's motion to dismiss
plaintiff's complaint. For the following reasons, the Court
grants the motion.
case arises out of allegations of employment discrimination
on the basis of race and age. Plaintiff Anthony Brown is
African-American. On January 16, 2017, plaintiff began
working for Defendant On-Site Fuel Service, Inc. as a Route
Manager. Defendant's Operations Manager, Scott
Thompson, instructed plaintiff to report to training in
Houston, Texas on January 16, 2017. Thompson allegedly told
plaintiff that the training would last one to two
weeks. Plaintiff asserts that he completed one
full week of training, but did not receive his schedule for
the second week. According to the complaint, plaintiff made
several inquiries regarding his schedule and pay, but did not
receive a response. On January 30, 2017, Thompson allegedly
called plaintiff. The complaint does not specify what
Thompson said on this call. On October 16, 2017, plaintiff
filed a pro se complaint alleging that he was
subjected to discrimination because of his race and
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
plead “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when the
plaintiff pleads facts that allow the court to “draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. A court must
accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. See
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th
legally sufficient complaint must establish more than a
“sheer possibility” that the plaintiff's
claim is true. Iqbal, 556 U.S. at 678. It need not
contain detailed factual allegations, but it must go beyond
labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Id. In other words,
the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal
relevant evidence of each element of the plaintiff's
claim. Lormand, 565 F.3d at 257. The claim must be
dismissed if there are insufficient factual allegations to
raise a right to relief above the speculative level,
Twombly, 550 U.S. at 555, or if it is apparent from
the face of the complaint that there is an insuperable bar to
relief, Jones v. Bock, 549 U.S. 199, 215 (2007).
asserts claims of age and race discrimination in
employment.The Court liberally construes
plaintiff's pro se complaint. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007). But,
“regardless of whether the plaintiff is proceeding
pro se or is represented by counsel, conclusory
allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to
dismiss.” Taylor v. Books a Million, Inc., 296
F.3d 376, 378 (5th Cir. 2002) (internal citation and
quotation marks omitted).
discrimination in employment is prohibited by 42 U.S.C.
§ 1981 and Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e, et seq. Race discrimination claims
under both statutes are subject to the same substantive legal
standards and differ only in their statutes of limitations
and administrative exhaustion requirements. See Jones v.
Robinson Prop. Grp., LP, 427 F.3d 987, 992 (5th Cir.
2005); see also Thompson v. City of Waco, 764 F.3d
500, 503 (5th Cir. 2014); Mendoza v. Helicopter, 548
F. App'x 127, 128 (5th Cir. 2013).
complaint need not allege facts establishing each element of
a prima facie case of employment discrimination to
survive a motion to dismiss. See Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 515 (2002). But the complaint must
allege sufficient facts to indicate that “defendant
took the adverse employment action against a plaintiff
because of [his] protected status.” Raj v.
La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013)
(internal citation and quotation marks omitted). Here, the
complaint does not state that plaintiff was fired or suffered
any other adverse employment action. Further, plaintiff
alleges no facts to suggest that any adverse employment act
was taken because of his race.
discrimination in employment is prohibited by the Age
Discrimination in Employment Act (ADEA). The ADEA makes it
unlawful for an employer “to fail or refuse to hire or
to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's age.” 29 U.S.C. § 623(a)(1). The
ADEA applies only to individuals who are at least 40 years
old. See 29 U.S.C. § 631; see also Gen.
Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 591
(2004). Plaintiff's complaint fails to allege that he is
older than 40 or that he suffered an adverse employment
action. Nor does the complaint indicate that an adverse
action was taken because of plaintiff's age.
plaintiff fails to state a plausible claim of race or age
discrimination, his complaint must be dismissed.
Plaintiff's opposition to the motion to dismiss includes
no legal arguments, and instead presents new factual
allegations. For instance, plaintiff's opposition
asserts that Thompson stated “that he wants
Thoroughbreds on his team, not any 40 and 50 year old.
Thompson made it clear that he want[s] younger Managers on
his team.” The Court liberally construes
plaintiff's opposition as a request to amend his
complaint. See Riley v. Sch. Bd. Union Par., 379 F.
App'x 335, ...