# Norwood v. Perdue

> District Court, W.D. Louisiana · February 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10193482

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** February 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
BRUCE NORWOOD CASE NO. 3:19-CV-00256
VERSUS JUDGE TERRY A. DOUGHTY
SONNY PERDUE, ET AL. MAG. JUDGE KAREN L. HAYES

RULING

Pending before the Court is a Motion to Dismiss [Doc. No. 16] filed by Defendants Sonny
Perdue, Secretary of the United States Department of Agriculture; Clarence Hawkins
(“Hawkins”); and Vernell Wilson-Williams (“Wilson-Williams”), pursuant to Federal Rule of
Civil Procedure 12 (b)(6). Defendants move to dismiss the claims of Plaintiff Bruce Norwood
(“Norwood”) against Hawkins and Wilson-Williams because they are not proper Defendants.
Additionally, Defendants move to dismiss Norwood’s claim for age discrimination because he
failed to allege facts that would show he suffered any adverse employment action on the basis of
his age.
I. FACTS AND PROCEDURAL HISTORY
This suit arises from Norwood’s claim that the United States Department of
Agriculture (“USDA”) did not select him for promotion to Supervisory Loan Specialist (Gen)
(Area Director), GS-1165-12/13 with the Rural Development office in Monroe, Louisiana,
because of his age, in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”),
29 U.S.C. §§ 621-634.
According to his Complaint, Norwood is an older male with over thirty-seven (37) years
of experience with USDA. [Doc. No. 1, ¶ 13]. At the time of the alleged harm, Norwood worked
as a loan specialist at the USDA Rural Development office in Monroe. Id. at ¶ 13. In June 2015,
Norwood applied for the Supervisory Loan Specialist (Gen) GS-1165-12/13 (“Area Director”)
position (vacancy no. LA-2015-179). Id. at ¶ 5. Norwood was placed on the “best qualified list”
and granted an interview. Id. at ¶ 8. Norwood was not selected for the position. Id. at ¶ 24. Instead,
a younger woman was chosen, Wilson-Williams. Id. at ¶ 24.
Norwood claims that he was more qualified than the selectee but did not receive the
promotion because of his age.1 Id. at ¶¶ 25- 26.
According to Norwood, the decision to hire Wilson-Williams instead of him is a failure by
the USDA to hire according to its own policies and procedures, and this specific failure ostensibly
constitutes discrimination against Norwood based on age. Id. at ¶16. Specifically, Norwood

alleges that his age “played a role” in the USDA’s decision not to select him for the position “as
defendant Hawkins made comments about retirement because of his age and length of
service.” Id. at ¶ 27. However, Norwood fails to identify what the alleged age-related comments
were, to whom they were directed, and when they were made. Norwood does not state his own
age or the age of the selectee, Wilson-Williams. Norwood simply maintains that he is “an older
gentleman” and that Wilson-Williams is a “younger female.” Id. at ¶ 24.
The relevant ROI (“Record of Investigation”) which Norwood routinely references in
his Complaint identifies his date of birth as September 15, 1957, and Wilson-Williams’ date of
birth as December 6, 1965.
On February 27, 2019, Norwood filed a Complaint in this Court.
On July 9, 2019, a Notice of Intent to Dismiss issued for failure to effect service within
ninety (90) days. When that failure was not remedied, on August 7, 2019, the lawsuit was

1Two additional persons, Cheryl Rodgers and Steven Brister, make similar allegations of
discrimination based on their non-selection for the same position in two additional, separate
lawsuits. See Cheryl Rodgers v. Sonny Perdue, et al., 19-00253 (W.D. LA. February 27, 2019);
Steven Brister v. Sonny Perdue, et al., 19-00258 (W.D. LA. February 27, 2019). Defendants have
filed motions to dismiss in those cases as well.
dismissed.
On September 6, 2019, within thirty (30) days, Norwood moved to re-open the case. That
motion was granted. [Doc. No. 7].
On January 21, 2020, Defendants filed the instant motion. Any opposition to the motion
was due no later than February 11, 2020. No opposition was filed.
II. LAW AND ANALYSIS
A. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a case for

failure to state a claim upon which relief can be granted. The Court must accept as true all well-
pleaded facts contained in the plaintiff’s complaint and view them in the light most favorable to
the plaintiff. Taylor v. Books A Million, 296 F.3d 37 6, 378 (5th Cir. 2002) (citation omitted). In
deciding a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To “survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Gonzalez, 577 F.3d at 603 (quoting Iqbal, 556 U.S. at 678, (2009)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “It
follows, that ‘where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is
entitled to relief.’” Id.
B. ADEA
1. Claims Against Hawkins and Wilson-Williams
Under the ADEA, it is “unlawful for an employer to fail or refuse to hire or to discharge
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.” 29 U.S.C. §
623(a)(1). The ADEA authorizes suits against employers for age discrimination. See 29 U.S.C.
§ 623(a). “The Supreme Court has . . . held that the ADEA is to be construed in accordance with
Title VII [of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., prohibiting other forms of
employment discrimination]. See Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988). “Under
Title VII . . . the proper defendant is ‘the head of the department, agency, or unit, as appropriate.’”
Id. (quoting 42 U.S.C. § 2000e–16(c)); 29 U.S.C. § 794a(a)(1) (adopts Title VII procedures). Thus,

the appropriate defendant to be sued under the ADEA is the same person as under Title VII. In
the private sector, Fifth Circuit precedent is clear that individuals are not liable under the ADEA.
See Malcolm v. Vicksburg Warren Sch. Dist. Bd. of Trustees, 709 Fed. App’x. 243, 247 (5th Cir.
2017) (citing Medina v. Ramsey Steel Co., 238 F.3d 674, 686 (5th Cir. 2001)) (citation omitted).
The head of the USDA is the Secretary of Agriculture. Norwood has failed to state factual
allegations or cite this Court to any law which would allows claims to be asserted against
individual Defendants Hawkins and Wilson-Williams. Therefore, Norwood has failed to state a
claim against the remaining individual Defendants, and they must be dismissed.
2. Norwood’s Age Discrimination Allegations
When a plaintiff alleges age discrimination, “liability depends on whether the protected
trait actually motivated the employer's decision.” Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 141 (2000). That is, the individual’s age must have “actually played a role in [the
employer’s decision making] process and had a determinative influence on the outcome.” Id.
Therefore, by a preponderance of the evidence, the plaintiff must prove that age was the “but-for”
cause of the challenged adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
177–78 (2009).
A plaintiff may prove his case by direct or circumstantial evidence. Reeves, 530 U.S. at
141. Evidence is direct when it “proves the fact of discriminatory animus without inference or
presumption.” Terry v. Promise Hosp. of Ascension, Inc., CIV.A. No. 13–128–SDD, 2014 WL
4161581, at *5 (M.D. La. Aug. 19, 2014). Evidence is circumstantial when an inference is
required for the evidence to tend to prove discriminatory animus. Id. In order for comments to
constitute direct evidence of age discrimination, they must be “1) age related; 2) proximate in time
to the termination; 3) made by an individual with authority over the employment decision at issue;
and 4) related to the employment decision at issue.” Reed v. Neopost USA, Inc., 701 F.3d 434, 441

(5th Cir. 2012) (citing Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.1996) (abrogated on
other grounds by Spears v. Patterson UTI Drilling Co., 337 Fed. App’x. 416, 419 (5th Cir. 2009)).
If a plaintiff lacks direct evidence, courts employ the burden-shifting framework of
McDonnell–Douglas. Reeves, 530 U.S. at 142–43. At the first step of that framework, a plaintiff
must establish a prima facie case of discrimination by showing that: (1) he was over 40 years of
age; (2) qualified for the position; (3) not promoted; and (4) the position was filled by someone
younger. Leal v. McHugh, 731 F.3d 405, 410-11 (5th Cir. 2013). When the selectee is also in the
age-protected class, the analysis becomes a comparator of the age between the age-protected
applicants. Specifically, a comparator need not be outside the protected group, under age 40, but
must be substantially younger than the complainant. O’Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308 at 311 (1996).
To state a plausible claim for unlawful discrimination, a plaintiff must “plead
sufficient facts on all of the ultimate elements of a disparate treatment claim.” Chim v. Univ. of
Texas, 836 F.3d 467, 470 (5th Cir. 2016). At the pleading stage, a plaintiff is not required to “make
out a prima facie case of discrimination in order to survive a Rule 12(b)(6) motion to dismiss. Raj
v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013). Nevertheless, the plaintiff’s complaint
still must plausibly address “the ultimate question in a Title VII disparate treatment claim,” that
is, “whether a defendant took the adverse employment action against a plaintiff because of [his or]
her protected status.” Raj, 714 F.3d at 331. Likewise for the ADEA. See Leal, 731 F.3d at 412.
In this case, the Complaint includes no factual allegations that could support
Norwood’s conclusory assertions of discriminatory motivation. Norwood claims the USDA
failed to hire according to its own policies and procedures, but, even if true, such claims do not
constitute age discrimination on their face. Additionally, Norwood theorizes that age was a
factor in his non-selection because the alleged decision maker “made comments about
retirement because of [Norwood’s] age and length of service.” Jd. 26. But these alleged
comments are insufficiently detailed to show direct or indirect evidence of discrimination. See
E.E.O.C. v. Tex. Instruments, 100 F.3d 1173, 1181 (Sth Cir. 1996) (“This court has repeatedly held
that ‘stray remarks’ do not demonstrate age discrimination.”). In summary, Norwood has failed
to assert the facts needed to raise [his] claims above a speculative level”). See Bauer v. Albemarle
Corp., 169 F.3d 962, 967 (Sth Cir.1999) (“[A]n employee's subjective belief of discrimination
alone is not sufficient to warrant judicial relief.”).
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED, and Norwood’s
Complaint is DISMISSED WITH PREJUDICE.
Monroe, Louisiana, this 14" day of February, 2020.
en
TERRY A, DOUGHTY
UNITED $ ATES DISTR J (ogk

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10193482. Public record. Not legal advice.