Leal v. McHugh

• Decision Date: 26 September 2013
• Docket Number: No. 12–40069.,12–40069.
• Citation: 731 F.3d 405
• Parties: George LEAL; John M. Lozano, Plaintiffs–Appellants, v. John McHUGH, Secretary, Department of the Army, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

731 F.3d 405

George LEAL; John M. Lozano, Plaintiffs–Appellants,

v.John McHUGH, Secretary, Department of the Army, Defendant–Appellee.

No. 12–40069.

United States Court of Appeals,Fifth Circuit.

Sept. 26, 2013.

Thomas Joseph Crane, Attorney, San Antonio, TX, for Plaintiffs–Appellants.

Jimmy Anthony Rodriguez, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, Charles William Wendlandt, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Corpus Christi, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.

CARL E. STEWART, Chief Judge:

Plaintiffs–Appellants, George Leal and John M. Lozano, appeal the district court judgment granting Defendant–Appellee John McHugh's ¹ motion to dismiss Appellants' age discrimination claims and Leal's retaliation claim, as well as the court's denial of their request for leave to amend their complaint. We AFFIRM IN PART and REVERSE AND REMAND IN PART.

I. FACTUAL AND PROCEDURAL HISTORY

Appellants allege the following facts in their First Amended Complaint: ²

Plaintiff–Appellants John Lozano (“Lozano”), born in 1947, and George Leal (“Leal”), born in 1953, (collectively “Appellants”), worked for the Facilities, Engineering, and Management Division (“FEMD”) at the Corpus Christi Army Depot (“CCAD”).

Lozano began working for the CCAD in 1985, and acquired over twenty years of experience as an Engineering Technician, Project Manager, Quality Assurance Inspector, and Construction Officer Representative. Lozano also volunteered as a Construction Representative Technician with the Army Corps of Engineers for five years in Kuwait. He has received accolades such as “the most productive employee in the [FEMD].”

Leal began working for the CCAD in 1986. He worked as a Material Maintenance Management Specialist, and was promoted to Engineering Technician. From 2007 to the present, Leal has worked as a Contractor Officer Representative for contracts relating to various facilities, including elevators, solid waste disposal, grounds maintenance, and eyewash stations/showers at the CCAD. Leal has received top ratings for performance since 1992, except for one year when he received the second-highest rating.

In 2009, CCAD Facilities and Engineering announced two new positions at the GS–12 level.³ Lozano and Leal applied for the positions. Both applicants were omitted from the initial selection list in September 2009, but were added to the selection list in October 2009. The selecting official, Michael Webb, initially made selections after the first list was issued but before the second list was issued. Webb did not immediately announce these selections, however.

Webb selected John Clay and Rudy Solis to fill the two new positions. Solis is substantially younger than Appellants.⁴ Solis also had a close personal relationship with Webb's supervisor, Luis Salinas, who was the Chief of the FEMD. Salinas expressed a need for “new blood” in his department. Salinas denies involvement in the selection of Solis, although this denial is contradicted by Salinas's testimony during the equal employment opportunity (“EEO”) investigation. Webb also stated that Salinas told Webb to select Solis. Prior to his selection, Solis told his co-workers that he would be selected.

In their filings below, Appellants have asserted that the CCAD's failure to follow its own procedural rules for making selections— i.e., by choosing Solis and Clay before the second candidate list was issued—constitutes circumstantial evidence of discrimination. Appellants have also argued they are “clearly better qualified” than Solis and, thus, this finding supports an inference of pretext.

Additionally, Leal alleges that Salinas was his supervisor in 2000 when Leal filed a retaliation claim. Leal also previously participated in EEO complaints on behalf of his co-workers as recently as 2006. Accordingly, Leal alleges that he was not selected for the Construction Representative position due to his prior EEO activity, in addition to age discrimination.

Following their non-selection, Appellants filed administrative complaints alleging that they were discriminated against based on age and, in the case of Leal, based on his protected EEO activity.⁵ An investigator with the Department of Defense's Civilian Personnel Management Division investigated Appellants' complaints. [ See, e.g.,R. 77–90]. Subsequently, an Administrative Law Judge (“ALJ”) at the Equal Employment Opportunity Commission (“EEOC”) conducted a hearing on Appellants' complaints on April 13, 2011. [R. 91–102]. The ALJ issued a decision finding no discrimination, which the agency adopted on May 5, 2011. Appellants subsequently alleged in their complaint before the district court that the ALJ did not address the many inconsistencies in witness testimony or the “subtle pressure applied to one of the witnesses” during the EEO investigation.

Appellants filed suit in federal court on August 2, 2011, alleging that they were not hired for the two newly-created positions because of their age, in violation of the ADEA, 29 U.S.C. § 621 et seq. Leal also alleged that his non-selection was retaliation for his prior protected activity, in violation of Title VII of the Civil Rights Act of 1964. See42 U.S.C. § 2000e et seq. On October 18, 2011, Appellee moved to dismiss the complaint or, alternatively, for summary judgment. Appellants amended their complaint on October 26, 2011 and also opposed Appellee's motions.

On November 4, 2011, the district court dismissed Appellants' claims under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). On November 14, 2011, Appellants filed a motion pursuant to Federal Rule of Civil Procedure 59(e), requesting that the district court reconsider its dismissal of their complaint. Contained within the motion for reconsideration was also Appellants' request for leave to amend their complaint a second time. On December 20, 2011, the district court vacated its prior dismissal order and substituted it with the court's opinion and order on Appellants' Rule 59(e) motion for reconsideration.

In the December 20 opinion, the district court granted Appellee's motion to dismiss Appellants' complaint, ruling that Appellants' allegations regarding Solis's personal relationship with Salinas “defeat[ed]” their age discrimination claims, and that Appellants “asserted a mixed-motive case, which is prohibited” under Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). See generally id. at 180, 129 S.Ct. 2343 (holding that ADEA plaintiffs must prove that age was the “but-for cause” of, rather than a “motivating factor” in, the adverse employment action). The district court further ruled that Leal's retaliation claim failed to demonstrate a plausible causal connection between his protected activity and his non-selection for the new position, since his latest alleged protected activity was in 2006 and the non-selection occurred three years later, in 2009. The district court also denied Appellants' request for leave to amend their complaint. Regarding this latter request, the court concluded that the denial was warranted due to Appellants' “fatal ‘mixed motive’ allegation of the ‘personal relationship’ between Solis and Salinas” and Appellants' failure to demonstrate how any amendment would not be futile. Appellants timely appealed the district court's December 20 order.

II. DISCUSSION

Appellants challenge the district court's dismissal of their age discrimination claims and Leal's retaliation claim and the court's denial of their request for leave to amend their complaint. We address each set of challenges in turn.

A. Appellants' Age Discrimination Claims1. Standard of Review

We review de novo the district court's grant of a motion to dismiss for failure to state a claim under Rule 12(b)(6). Sullivan v. Leor Energy, L.L.C., 600 F.3d 542, 546 (5th Cir.2010) (citation omitted). This court construes facts in the light most favorable to the nonmoving party, “as a motion to dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.’ ” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir.2011) (citation omitted). Dismissal is appropriate only if the complaint fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Yet, the complaint must allege enough facts to move the claim “across the line from conceivable to plausible.” Id. Determining whether the plausibility standard has been met is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted).

2. Applicable Law

The ADEA prohibits employment discrimination in both the private and local government sectors, and in federal employment. See29 U.S.C. § 623(a) (private and local government sectors, or “nonfederal sectors”); id. § 633a (federal sector). Under the relevant provision pertaining to the nonfederal sectors, “[i]t shall be unlawful for an employer to fail or refuse to hire ... 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.” Id. § 623(a)(1). In contrast to § 623(a)'s prohibition of employment decisions “because of such individual's age,” the federal sector provision states that “all personnel decisions affecting employees or applicants for employment [with various federal agencies] who are at least 40 years of age ... shall be made free from any discrimination based on age.” Id. § 633a(a).

To establish a prima facie case of discriminatory treatment based on age, Appellants are required to prove: 1) “they are within the protected class”; 2) “they are...