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. 14. 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.
Second Amended Complaint (“SAC”) alleges that
Lowes has “terminated several workers over the age of
40 without valid reasons or for bogus events which [Lowes]
has created to justify termination.” Garay claims that
Lowes has “acted upon a policy which encourages
discrimination against older workers in that they have
systematically been harassing to the point that employees
quit or firing employees who have been with the company for
more than ten years, ” and this policy is aimed at
“keeping a younger workforce.”
alleges that in the three years preceding Garay's
termination and in the year following, Lowes's policies
have resulted in “at least 15 employees over the age of
40 being terminated or being forced to quit without
sufficient justification.” Garay claims that the
terminations have been “in far greater proportion for
those over age 40 than they have been to those who are under
2, 2017, the Court dismissed Garay's second claim for
relief with leave to amend. ECF No. 12. Garay filed her SAC
on July 2, 2017, and this motion followed.
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, 679 (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.
preliminary matter, Garay's Response in Opposition to
Lowes's Motion to Dismiss was not timely filed.
See LR 7-1(e) (“A party must file and serve
any response within 14 days after service of the
motion.”). The Local Rules provide that failure to
timely file a response constitutes a waiver of oral argument
on the motion. LR 7-1(d)(4). Garay provides no explanation
for her late Response and Lowes urges the Court to disregard
the untimely filing. The Court has opted to resolve this
motion on the merits, but Garay is warned that all future
filings should be submitted within the timeframe provided by
the Local Rules.
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) (internal quotation marks and citation
omitted, 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. The standards for a disparate impact ...