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Garay v. Lowes Home Centers, LLC

United States District Court, D. Oregon, Medford Division

November 14, 2017

NANCY GARAY, Plaintiff,

          OPINION & ORDER

          Michael McShane United States District Judge.

         This 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.


         Plaintiff 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.

         The 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.”

         The SAC 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 age 40.”

         On June 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.


         Where a 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 679.

         For 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. at 681.


         As a 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.

         Garay's second claim for relief alleges age discrimination based on disparate impact.[1] 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).

         “A 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 ...

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