Ferrell v. Ezpawn Oklahoma, Inc.

          ORDER

          SCOTT L. PALK, UNITED STATES DISTRICT JUDGE

         Before the Court are two motions. First, after Plaintiff filed an Amended Complaint^[1] [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.

         Second, 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.

         I. Standards of decision

         Rule 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, the-defendant-unlawfully-harmed-me accusation.” 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.

         To 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.

         Rule 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 citation omitted).

         II. Factual allegations^[2]

         Plaintiff 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.

         Plaintiff 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.^[3] 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).

         Plaintiff 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.^[4]

         III. Discussion and analysis

         To 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.

         A. Plaintiff's ADEA age discrimination claim

         Plaintiff 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.

         B. Plaintiff's USERRA and ADA disability discrimination claim

         Plaintiff 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 ...