United States District Court, W.D. Oklahoma
L. PALK, UNITED STATES DISTRICT JUDGE
the Court are two motions. First, after Plaintiff filed an
Amended Complaint [Doc. No. 12] while proceeding pro se,
Defendant filed its Second Partial Motion to Dismiss [Doc.
No. 14]. Plaintiff did not file a response to Defendant's
motion, and the Court may not summarily deem Defendant's
motion confessed under Local Civil Rule 7.1(g). See Issa
v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003).
Instead, the Court has “examine[d] the allegations in
[Plaintiff's Amended Complaint and his proposed Second
Amended Complaint] and determine[d] whether [he] has stated a
claim upon which relief can be granted” based on
Defendant's brief. Id. at 1178. Defendant's
dismissal motion [Doc. No. 14] is at issue due to
Plaintiff's failure to respond to it.
and instead of responding to Defendant's motion,
Plaintiff filed an Opposed Motion for Leave to Amend Second
Amended Petition [Doc. No. 24]-more than two months after
Plaintiff's deadline to file a response to
Defendant's motion and by which point Plaintiff had
obtained counsel to represent him in this matter. In his
motion, Plaintiff seeks permission to amend his complaint for
a second time pursuant to Federal Rule of Civil Procedure
15(a)(2). Plaintiff's motion does not cite any case law,
and it consists of a single paragraph. Defendant filed a
response brief, and Plaintiff did not file a reply.
See Def.'s Resp., Doc. No. 25. Plaintiff's
amendment motion [Doc. No. 24] is at issue because Defendant
filed a timely response to it.
Standards of decision
12(b)(6) applies to Defendant's motion. In considering a
motion to dismiss, a court must determine whether the
plaintiff has stated claims upon which relief may be granted.
Under Rule 8(a)(2), a pleading is to contain “a short
and plain statement of [each] claim showing that the pleader
is entitled to relief.” While Rule 8(a)(2) “does
not require ‘detailed factual allegations,' . . .
it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). As such, “labels and conclusions” and
“a formulaic recitation of the elements of a cause of
action” are insufficient. Twombly, 550 U.S. at
555. In essence, a plaintiff must “nudge [his] claims
across the line from conceivable to plausible” in order
to survive a motion for dismissal. Id. at 570.
assess the sufficiency of claims made by a plaintiff, a
two-pronged approach is deployed. First, “a judge
ruling on a defendant's motion to dismiss a complaint
must accept as true all of the factual allegations contained
in the complaint.” Twombly, 550 U.S. at 572
(quotation marks and citation omitted). A court need not,
however, accept the veracity of “mere conclusory
statements.” Iqbal, 556 U.S. at 678. Second,
in light of the well-pleaded factual allegations, the court
must determine whether “a complaint states . . .
plausible claim[s] for relief.” Id. at 679.
15(a)(2) applies to Plaintiff's motion. “While Rule
15 provides that leave to amend a complaint shall be freely
given when justice so requires, a district court may refuse
to allow amendment if it would be futile. A proposed
amendment is futile if the complaint, as amended, would be
subject to dismissal.” Full Life Hospice, LLC v.
Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013)
(quotation marks and citations omitted). In addition, leave
to amend is properly denied if the nonmoving party shows the
existence of “undue delay [on the part of the movant],
bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or, as already stated,
] futility.” Foman v. Davis, 371 U.S. 178, 182
(1962); see Bylin v. Billings, 568 F.3d 1224, 1229
(10th Cir. 2009). Still, “[t]he purpose of [Rule 15] is
to provide litigants the maximum opportunity for each claim
to be decided on its merits rather than on procedural
niceties.” Minter v. Prime Equip. Co., 451
F.3d 1196, 1204 (10th Cir. 2006) (quotation marks and
was employed by Defendant from August 2015 through his
termination in February 2017. At the time of his termination,
he was a thirty-four-year-old male with a disability rating
(due to his status as a military veteran) of ninety percent.
Plaintiff asserts that his hiring constituted “a
contract, a constructive contract or a quasi contract”
between him and Defendant which included “key vested
term[s] and covenant[s]” of Plaintiff not being
required to work on Sundays, Plaintiff being “allowed
time [off] from work to attend necessary follow up medical
[appointments] and Veterans' Administration services,
” and “that [Plaintiff] would not be asked to
violate, condone, support or to remain silent of any
violation of any law, regulation, public policy or [to] do
anything unethical or immoral.” Second Am. Compl.
¶ 30, Doc. No. 24-1. Plaintiff does not allege that he
was a member of the military during any portion of his
employment by Defendant.
filed a Charge of Discrimination [Doc. No. 14-1] with the
U.S. Equal Employment Opportunity Commission, and he was
subsequently issued a Notice of Right to Sue. In the EEOC
charge, Plaintiff checked boxes for religion, disability, and
retaliation due to labor costs. Plaintiff's EEOC filing
does not reference his gender, his race or national origin,
or his age (except to indicate he had the most seniority at
his store, which is not necessarily indicative of age).
now asserts claims for (i) gender discrimination in violation
of Title VII of the Civil Rights Act of 1964 and the Civil
Rights Act of 1991 (“Title VII”), (ii) reverse
age discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”), (iii) discrimination
because of a physical impairment in violation of both the
Americans with Disabilities Act of 1990 (“ADA”)
and the Uniformed Services Employment and Reemployment Rights
Act of 1994 (“USERRA”), (iv) religious
discrimination in violation of Title VII, (v) discrimination
based on his national origin in violation of Title VII, (vi)
breach of contract, and (vii) wrongful discharge in violation
of public policy-i.e., a Burk tort.
Discussion and analysis
determine whether Plaintiff's Amended Complaint should be
dismissed, as well as to determine whether Plaintiff should
be granted leave to file his proposed Second Amended
Complaint, the Court evaluates the causes of action asserted
therein individually to determine whether such claims are
subject to dismissal.
Plaintiff's ADEA age discrimination claim
asserts what he describes as a “reverse age
discrimination” claim based in the ADEA. Second Am.
Compl. ¶ 17, Doc. No. 24-1. Plaintiff, who was at the
time of his termination (and is now) under the age of 40,
cannot assert a discrimination claim based in the ADEA.
See 29 U.S.C. § 631(a) (“The prohibitions
in this chapter shall be limited to individuals who are at
least 40 years of age.”). That is, no “reverse
age discrimination” claim exists in federal
discrimination law. As stated by the U.S. Supreme Court
fifteen years ago, “the text, structure, and history
point to the ADEA as a remedy for unfair preference based on
relative youth, leaving complaints of the relatively young
outside the statutory concern.” Gen. Dynamics Land
Sys., Inc. v. Cline, 540 U.S. 581, 593 (2004).
Accordingly, Plaintiff's age discrimination claim is
subject to dismissal, and granting Plaintiff leave to assert
such a claim in an amended pleading would be futile.
Plaintiff's USERRA and ADA disability discrimination
bases his disability discrimination claim in two laws-the
USERRA and the ADA-which the Court addresses in turn. First,
to the extent Plaintiff claims he was discriminated against
in violation of the USERRA, his claim fails as a matter of
law. “To survive a motion to dismiss, [a plaintiff
alleging a USERRA claim] must have alleged . . . that [his]
own military service . . . was a motivating factor that
caused [the employer] to [take the adverse employment
action]. Norris v. Glassdoor, Inc., No. 2:17-cv-791,
2018 WL 3417111, at *5 (S.D. Ohio July 13, 2018). Here,
Plaintiff has not alleged that Defendant took an adverse
employment action based on his military service; rather, he
alleges that he was discriminated against due to the
disability he suffered during his military service.
See Second Am. Compl. ¶ 20, Doc. No. 24-1. Such
alleged discrimination is not within the scope of
USERRA's protections. See 38 U.S.C. §
4311(a) (indicating that USERRA protections extend to
“[a] person who is a member of, applies to be a member
of, performs, has performed, applies to perform, or has an
obligation to perform service in a uniformed service . . .
on the basis of that membership, application for
membership, performance of service, application for service,
or obligation” (emphasis added)). “[T]he fact