Raymond v. Spirit Aerosystems Holdings, Inc.
| Decision Date | 14 August 2019 |
| Docket Number | Case No. 16-1282-JWB |
| Citation | 406 F.Supp.3d 996 |
| Parties | Donetta RAYMOND, et al., Plaintiffs, v. SPIRIT AEROSYSTEMS HOLDINGS, INC., and Spirit Aerosystems, Inc., Defendants. |
| Court | U.S. District Court — District of Kansas |
Daniel B. Kohrman, Pro Hac Vice, Dara S. Smith, Pro Hac Vice, Laurie A. McCann, Pro Hac Vice, Osvaldo Vazquez, Pro Hac Vice, AARP Foundation Litigation, Washington, DC, Diane S. King, Pro Hac Vice, Jennifer Bezoza, Pro Hac Vice, Kylie M. Schmidt, Pro Hac Vice, Julian G. G. Wolfson, Pro Hac Vice, King & Greisen, LLP, Denver, CO, Randall K. Rathbun, Depew Gillen Rathbun & McInteer, LC, Wichita, KS, for Plaintiffs.
Boyd A. Byers, Charles E. McClellan, James M. Armstrong, Jeff P. DeGraffenreid, Teresa L. Shulda, Foulston Siefkin LLP, Wichita, KS, Stacy D. Mueller, Pro Hac Vice, Steven W. Moore, Pro Hac Vice, Constangy, Brooks, Smith & Prophete, LLP, Denver, CO, for Defendants.
This matter is before the court on Spirit's1 motion for partial judgment on the pleadings. (Doc. 409.) The motion is fully briefed and is ripe for decision. (Docs. 410, 417, 422.) For the reasons stated herein, Spirit's motion is GRANTED. Plaintiffs' motion for a hearing on the foregoing motion (Doc. 424) is DENIED, as the court determines that oral argument would not assist in deciding the issues presented.
Plaintiffs are former Spirit employees in Wichita whose employment was terminated in a July 2013 reduction-in-force (RIF). Plaintiff's fifth claim for relief, based on the Age Discrimination in Employment Act (ADEA), alleges that after July 2013, "Spirit implemented a policy, procedure, and/or practice of rejecting applications for open positions from individuals terminated in the July 2013 RIF." (Doc. 1 at 80.) Plaintiffs allege this "failure and refusal to hire former employees terminated in the July 2013 RIF had a significant adverse impact on the work opportunities of former Spirit employees age 40 or above," including the Applicant Plaintiffs and the Deterred Applicant Plaintiffs,2 and was not based on "reasonable factors other than age," such that it violated the ADEA. (Id. )
Plaintiffs' fifth claim for relief is based on 29 U.S.C. § 623(a)(2), which is part of the ADEA's prohibition on age discrimination. It states as follows:
29 U.S.C.A. § 623(a) (West).3
In Smith v. City of Jackson, Miss. , the Supreme Court held that subsection (a)(2) permits claims of disparate impact. Smith , 544 U.S. 228, 232, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). At the same time, the Court indicated that subsection (a)(1) only permits claims of disparate treatment.4 Id. at 236, 125 S.Ct. 1536, n.6 (plurality opinion); Texas Dept. of Hous. and Cmty. Affairs v. Inclusive Cmtys. Project, Inc. , ––– U.S. ––––, 135 S. Ct. 2507, 2545, 192 L.Ed.2d 514 (2015) (Alito, J., dissenting) () As explained in Smith , the difference arises because the focus of (a)(1) is on an employer's actions with respect to "a targeted individual," but in (a)(2) there is "an incongruity between the employer's actions – which are focused on his employees generally – and the individual employee who adversely suffers because of those actions." Smith , 544 U.S. at 236, n.6, 125 S.Ct. 1536. Thus, even absent an intent to discriminate, "an employer who classifies his employees without respect to age may still be liable [under (a)(2) ] ... if such classification adversely affects the employee because of that employee's age – the very definition of disparate impact." Id. Although Smith spoke about subsection (a)(2) entirely in terms of the effect of a classification on "employees," it did not explicitly address whether this subsection can be applied to non-employee job applicants who claim they were not hired because of the disparate impact of a facially neutral employment policy.
Spirit moves to dismiss Plaintiff's fifth claim for relief pursuant to Fed. R. Civ. P. 12(c), arguing the ADEA does not authorize failure-to-hire claims under a disparate impact theory. (Doc. 410 at 1.) Claims of discriminatory failure-to-hire must be brought under § 623(a)(1), Spirit argues, which does not permit a disparate impact theory. Plaintiffs' fifth claim for relief is based on § 623(a)(2), which allows disparate impact claims, but Spirit argues this subsection only applies to current employees, not to outside job applicants. (Id. at 3.)
In response, Plaintiffs raise three basic arguments in support of their position that they have stated a claim under § 623(a)(2). Fundamentally, Plaintiffs argue that subsection (a)(2) always applies to failure-to-hire claims by outside job applicants. (Doc. 417 at 6-25.) Alternatively, Plaintiffs argue that their status as former employees brings them within the purview of subsection (a)(2) because that provision speaks in terms of "employee" and "employees," and because prior Supreme Court precedent in the Title VII context teaches that the term "employee" can encompass both current employees and former employees. (Id. at 4-6.) Finally, relying on similar logic, Plaintiffs argue they fall within the scope of subsection (a)(2) because they "suffer from the disparate impact of policies Spirit developed and set into motion while Plaintiffs were still employees. " (Id. at 2) (italics in original.) As to this particular theory, Plaintiffs contend Spirit violated subsection (a)(2) by designating older workers for the RIF and developing a policy of excluding such workers from consideration for rehire. (Id. at 3.) Plaintiffs argue this fact distinguishes their claims from the cases cited by Spirit, which interpreted § 623(a)(2) to exclude claims by outside job applicants.
Rule 12(c) permits a motion to dismiss on the pleadings after the pleadings are closed. The standards applicable to such a motion are the same as those governing Rule 12(b)(6) motions. See Morris v. City of Colorado Springs , 666 F.3d 654, 660 (10th Cir. 2012). In order to withstand a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face. Robbins v. Oklahoma , 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). All well-pleaded facts and the reasonable inferences derived from those facts are viewed in the light most favorable to the plaintiff. Archuleta v. Wagner , 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon the court's consideration. Shero v. City of Grove, Okla. , 510 F.3d 1196, 1200 (10th Cir. 2007).
A. Whether § 623(a)(2) permits a claim based on a failure to hire outside applicants. Plaintiffs argue that the language in § 623(a)(2), specifically the prohibition of "depriv[ing] any individual of employment opportunities," provides a basis for their disparate impact claim. Two en banc circuit court decisions have addressed whether subsection (a)(2) permits disparate impact claims based on an employer's failure to hire outside (i.e. not current employee) job applicants.5 See Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc), petition for cert. docketed, No. 18-1346 (U.S. Apr. 26, 2019); Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016) (en banc). A majority in each case concluded that subsection (a)(2) does not permit such claims.
The arguments concerning construction of § 623(a)(2) were exhaustively discussed in the Kleber and Villarreal en banc opinions. After reviewing those decisions, and the parties' arguments in this case, the court agrees with the majorities' conclusions that § 623(a)(2) does not apply to an employer's failure to hire outside job applicants such as Plaintiffs. Resolution of this issue turns on whether the term "individual" as used in subsection (a)(2) includes outside job applicants.
In resolving a similar question regarding the meaning of the term "employee" in § 704(a) of Title VII, the Supreme Court began its analysis by evaluating whether the meaning of that term was plain or ambiguous. Robinson v. Shell Oil Co. , 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341, 117 S.Ct. 843. Finding no clear answer in the specific language at issue or in Title VII's definition of "employee," the Court concluded in short order that the term "employee" was ambiguous, noting specifically that "[o]nce it is established that the term ‘employees’ includes former employees in some sections, but not in others, the term standing alone is necessarily ambiguous and each section must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute." Id. at 343–44, 117 S.Ct. 843. The Court's inquiry focused on whether the term "employee" had a plain and consistent meaning throughout the act. Finding that it meant current employee in some sections and contemplated former employees in other sections, the...
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