United States District Court, D. Oregon, Medford Division
OPINION & ORDER
Michael McShane United States District Judge.
matter comes before the Court on Defendant Lowes Home
Centers, LCC (“Lowes”)'s Motion to Dismiss
Plaintiff's second claim for relief. ECF No. 6. The Court
heard oral argument by telephone on May 31, 2017. For the
reasons discussed below, the motion is GRANTED.
Nancy Garay (“Garay”) was employed by Lowes for
more than 16 years, most recently as a Facilities Service
Associate (“FSA”). On May 9, 2016, Garay was
terminated, apparently for using her accrued sick days. Garay
was 55 years old at the time of her termination and she was
replaced as FSA by a younger employee.
plaintiff “fail[s] to state a claim upon which relief
can be granted, ” the court must dismiss the action.
Fed.R.Civ.P. 12(b)(6). In order to state a viable claim, a
plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009). This means
a complaint must contain “factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678 (internal quotation marks and citation
omitted). The complaint must contain “well-pleaded
facts” which “permit the court to infer more than
the mere possibility of misconduct.” Id. at
purposes of a motion to dismiss, the complaint is liberally
construed in favor of the plaintiff and its allegations taken
as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th
Cir. 1983). Bare assertions, however, that amount to nothing
more than a “formulaic recitation of the
elements” of a claim “are conclusory and not
entitled to be assumed true.” Iqbal, 556 U.S.
second claim for relief alleges age discrimination based on
disparate impact. A disparate impact claim challenges
“employment practices that are facially neutral in
their treatment of different groups but that in fact fall
more harshly on one group than another and cannot be
justified by business necessity.” Pottenger v.
Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003)
(internal quotation marks and citation omitted). In order to
state a claim for age discrimination based on disparate
impact, a plaintiff must show “(1) the occurrence of
certain outwardly neutral employment practices, and (2) a
significantly adverse or disproportionate impact on persons
of a particular [age] produced by the employer's facially
neutral acts or practices.” Id. (internal
quotation marks and citation omitted).
disparate impact claim must challenge a specific business
practice.” Pottenger, 329 F.3d at 749.
“[I]t is not enough to simply allege that there is a
disparate impact on workers, or point to a generalized policy
that leads to such an impact . . . [r]ather, the employee is
responsible for isolating and identifying the
specific employment practices that are allegedly
responsible for any observed statistical
discrepancies.” Smith v. City of Jackson, 544
U.S. 228, 241 (2005) (emphasis in original). Identifying the
specific practice in age discrimination cases alleging
disparate impact “is not a trivial burden.”
Stockwell v. City and Cnty. of San Francisco, 749
F.3d 1107, 1114 (9th Cir. 2014). “The plaintiff must
also demonstrate a causal connection between those specific
employment practices and the asserted impact on those of a
particular age.” Id.
case, Garay does not sufficiently allege that the age
discrimination is based on a specific business practice.
Garay claims that Lowes “acted upon a policy which
encourages discrimination against older workers in that they
have systematically been getting rid of employees who have
been with the company for more than ten years.” The
Amended Complaint provides no other facts about the policy in
question or its implementation.
does not allege any facts to support her claim that the
challenged policy disproportionately impacts employees of a
particular age. Garay claims that the policy discriminates
against “older workers within the company, ” but
provides no facts to support that conclusion. The Amended
Complaint is focused almost entirely on Garay's own
termination and provides no information from which the Court
might infer that a facially neutral policy is
disproportionately harming employees of a particular age.
does Garay allege a causal connection between the policy and
discrimination against employees of a certain age, other than
to suggest that it is unlikely that a twenty-nine year old
employee would have been with the company for more than ten
years. An employee's age is, however, "analytically
distinct from his years of service." Hazen Paper Co.
v. Biggins, 507 U.S. 604, 611 (1993) (addressing a
disparate treatment claim under the ADEA); see also
Jianqing Wu v. Special Counsel, Inc., 54 F.Supp.3d 48,
55 (D. D.C. 2014) (addressing a disparate impact claim and
concluding that "age and experience in the field are not
logical equivalents, "). As Lowes points out, a younger
employee might easily have more seniority with the company
than a newly-hired, but older, employee.
allegations contained in the Amended Complaint cannot,
therefore, sustain a claim for age ...