Keplar v. Google LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JEFFREY KEPLAR, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 3:22-CV-2281-B

§

GOOGLE, LLC, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Google, LLC (“Google”)’s Motion to Dismiss (Doc. 37)

Plaintiff Jeffrey Keplar’s Second Amended Complaint (Doc. 31). For the following reasons, the Court

GRANTS in part and DENIES in part Google’s Motion to Dismiss. Specifically, the Court

GRANTS the Motion as to Keplar’s claims for sex discrimination and breach of contract but

DENIES the Motion as to Keplar’s claims for age discrimination. The Court DISMISSES Keplar’s

sex discrimination and breach of contract claims WITH PREJUDICE.

I.

BACKGROUND 1

A. Factual Background

Keplar was hired by Google on July 1, 2019—Keplar was 62 years old when he began working

for Google. Doc. 31, Second Am. Compl., ¶ 5. Keplar was a Director for Google Cloud. Id. Keplar

had “substantial sales education and training and substantial computer-related enterprise sales

management experience.” Id.

1 The Court derives the factual background from Keplar’s Second Amended Complaint (Doc. 31).

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In late 2021, Google hired Elizabeth Elkins, a woman around 51 years old, who Keplar alleges

“lacked significant enterprise technology sales or sales management experience.” Id. ¶ 8. While Elkins

was Keplar’s superior, Google required Keplar to train Elkins for her role. Id. Elkins was then further

promoted in December 2021 to a position Google created for Elkins without providing Keplar notice

of the position “so he could compete for it.” Id. ¶¶ 12–13.

Keplar met his sales quota in 2019 and 2020, while also receiving excellent performance

reviews his first two years at Google. Id. ¶ 10. He then struggled to meet his sales quotas in 2021, and

ultimately received a “needs improvement” rating from his supervisor in November 2021. Id. ¶¶

12–13. Google ultimately fired Keplar on April 8, 2022. Id. ¶ 15. Keplar’s supervisor, Elkins,

temporarily performed Keplar’s duties until Google hired Keplar’s permanent replacement—Ivan

Fernandez—a man around 47 years old. Id.

Bob Allison, a man around 59 years old, was Keplar’s original supervisor at Google, until

Google terminated Allison in February 2021. Id. ¶ 6. Google then replaced Allison with a woman

around 53 years old. Id. In addition to Keplar and Allison’s terminations, Keplar also alleges that

Google discriminated against two more men above the age of 60. Id. ¶ 9. He alleges that Jeff Perry,

a man around 63 years old, was terminated by Google and replaced by a woman around 53 years old.

Id. Additionally, Keplar alleges Google demoted David Ooley, a man roughly 61 years old, and

replaced him with a woman around 54 years old. Id. Keplar alleges that both of these men had more

industry experience and knowledge than the women who replaced them. Id.

Lastly, while at Google, Keplar participated in a company stock-benefits plan that he refers

to as simply “the Plans.” Id. ¶ 17. The Plans provided both “cash-based and stock-based awards,”

which the Plans referred to as “Incentive Awards.” Id. ¶ 19(b). These Incentive Awards were given

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to various Google employees subject to a committee’s discretion. Id. This committee, which

administered the Plans, decided which employees received Incentive Awards and “the amount, type

and other terms and conditions of such Incentive Awards.” Id. ¶ 19(c)(4). As part of his

compensation, Keplar received a stock grant in January 2022 that was distinct from the grant he

received when Google hired him. Id. ¶ 14.

Keplar asserts six claims in his Second Amended Complaint: (1) that he was subjected to age

discrimination in violation of the Age Discrimination in Employment Act (“ADEA”); (2) that he

was subjected to sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”); (3) that he was subjected to age discrimination in violation of Chapter 21 of the Texas Labor

Code (“TLC”); (4) that he was subjected to sex discrimination in violation of Chapter 21 of the

TLC; (5) that Google violated Section 1140 of the Employment Retirement Income Security Act

(“ERISA”); and (6) that Google breached a contract regarding the stock grants. Id. ¶¶ 22–27.

B. Procedural History

Keplar filed his original Complaint on October 12, 2022. Doc. 1, Compl. Thereafter, Google

filed its first Motion to Dismiss for failure to state a claim on December 7, 2022. Doc. 9, Mot.

Dismiss. In response, Keplar filed his First Amended Complaint, which rendered Google’s first

Motion to Dismiss moot. See Doc. 12, Am. Compl.; Doc. 14, Order. Google then moved to dismiss

Keplar’s First Amended Complaint. Doc. 19, Mot. Dismiss. Keplar then sought leave to file a Second

Amended Complaint, which the Court granted—as a result, the Court dismissed Google’s Second

Motion to Dismiss as moot. Doc. 31, Second Am. Compl.; Doc. 32, Order. After Keplar filed his

Second Amended Complaint, Google filed its third 12(b)(6) Motion to Dismiss, which the Court

considers below. See Doc. 37, Mot. Dismiss.

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II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) authorizes a court

to dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.” Fed.

R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, “the Court must accept all

well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff.” Walker v.

Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019) (internal quotations omitted). But the

“court will not look beyond the face of the pleadings to determine whether relief should be granted

based on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999) (citation omitted).

To survive a motion to dismiss, plaintiffs must plead “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). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 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. “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

(quoting Twombly, 550 U.S. at 556). When well-pleaded facts fail to meet this standard, “the

complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679

(quotation marks and alterations omitted).

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III.

ANALYSIS

Google’s third Motion to Dismiss argues that Keplar’s age discrimination, sex discrimination,

and breach of contract claims should be dismissed for failing to state a claim. Doc. 37, Def’s Mot.

Dismiss, 10. The Court finds that Keplar has not stated a claim for sex discrimination or breach of

contract. However, the Court concludes he has stated a claim for age discrimination.

A. Keplar Has Failed to State a Claim for Sex Discrimination

Keplar brings sex discrimination claims under both Title VII and Chapter 21 of the TLC.

Doc. 31, Second Am. Compl., ¶¶ 23, 25. Title VII makes it unlawful for an employer to “discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Likewise, Chapter 21

of the TLC prohibits employers from “discharging an individual” because of their sex. TEX. LAB.

CODE § 21.051(1). The Supreme Court of Texas construes the TLC “to provide for the execution

of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” Ysleta

Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). Therefore, the Court will analyze

the federal and state sex discrimination causes of action together. See Newbury v. City of Windcrest,

991 F.3d 672, 675, 679 (5th Cir. 2021) (analyzing sex discrimination claims under both Title VII and

Chapter 21 of the TLC using only the Title VII framework); see Hobbs v. Ketera Techs., Inc., 865 F.

Supp. 2d 719, 726 (N.D. Tex. 2012)(Lindsay, J.) (“[t]he court determines the same standard applies

to discrimination claims under Title VII and [Texas law].”).

Under Title VII, to state a prima facie case for sex discrimination, plaintiffs must establish

the following elements: (1) they are a member of a protected class; (2) they are qualified for the

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position; (3) they suffered an adverse employment action; and (4) others similarly situated but

outside the protected class were treated more favorably. Alvarado v. Texas Rangers, 492 F.3d 605, 611

(5th Cir. 2007), abrogated on other grounds by Hamilton v. Dallas Cnty., 79 4th 494 (5th Cir. 2023).

Plaintiffs establish the fourth element of their prima facie case—the similarly situated prong—by

identifying a comparator, who is an employee outside of the plaintiffs’ protected class, that the

employer treated more favorably than the plaintiffs in “nearly identical circumstances.” Lee v. Kansas

City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).

Google argues that Keplar’s Second Amended Complaint should be dismissed because he

failed to plead a prima facie case for sex discrimination by not identifying a comparator. Doc. 37,

Mot. Dismiss, 4. Keplar, in response, contends that the “nearly identical circumstances” standard

from Lee only applies in cases involving disparate discipline, which he claims is not at issue here. Doc.

39, Resp., 4. Instead, Keplar argues, the fourth element of a prima facie case for sex discrimination

simply requires a showing of “substantial similarity.” Id. at 5 n.4.

However, neither party addressed the correct issue at the motion to dismiss stage. The Fifth

Circuit has held “[a] district court . . . errs by requiring a showing of each prong of the prima facie

test for disparate treatment at the pleading stage.” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d

762, 766 (5th Cir. 2019) (internal quotations omitted). Rather, a plaintiff need only “‘plead sufficient

facts on all of the ultimate elements of a disparate treatment claim to make their case plausible.’” Id.

(emphasis in original) (quoting Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016)).

Disparate treatment claims have two ultimate elements the plaintiff must plead to survive a motion

to dismiss: (1) that the plaintiff suffered an adverse employment action (2) because of their protected

status. Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013). Plaintiffs establish these elements

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when the facts alleged in their complaints “nudge [their] claims across the line from conceivable to

plausible.” Cicalese, 924 F.3d at 768 (quoting Twombly, 550 U.S. at 547)) (further citation omitted).

While a court cannot require plaintiffs prove their prima facie case at the motion to dismiss

stage, courts can reference the prima facie case to help determine “whether a plaintiff has plausibly

alleged the ultimate elements of the disparate treatment claim” when a plaintiff’s claim relies on

circumstantial evidence. Cicalese, 924 F.3d at 767. But the Court will not conduct “a rigorous

factual or evidentiary analysis . . . in response to a motion to dismiss.” Id.

In Cicalese, the Fifth Circuit held that Italian plaintiffs pled sufficient facts to survive a

12(b)(6) motion to dismiss. Id. There, the plaintiffs were Italian professors who alleged that their

supervisors made several derogatory comments regarding Italians, including that “[y]ou should go

back to Italy” and that stupidity was “an Italian thing.” Id. at 764–65 (internal quotations omitted).

The Court held the plaintiffs presented enough facts to make the claim that the adverse employment

actions “were motivated by anti-Italian bias” plausible but acknowledged that it was “a close call.”

Id. at 768.

While plaintiffs need not identify a comparator at the pleading stage, their complaint must

nevertheless allow a reasonable inference of discrimination. For example, the Fifth Circuit held in

Olivarez v. T-Mobile USA, Inc., that a transgender employee did not plead sufficient facts to make

his gender identity discrimination claim plausible. 997 F.3d 595, 600 (5th Cir. 2021). There, the

plaintiff failed to plead any facts that would create “a reasonable inference that T-Mobile terminated

Olivarez because of gender identity.” Id. Additionally, the plaintiff did not allege any facts regarding

a comparator that suggested the defendant treated any similarly situated employees outside the

plaintiff’s protected class differently. Id.

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Thus, the relevant inquiry is whether Keplar has alleged facts that plausibly show Google fired

him because of his sex. The Court concludes that Keplar has not done so. The only fact in the

pleadings regarding sex discrimination that directly involves Keplar is his allegation that Google

required him to train Elizabeth Elkins. Doc. 31, Second Am. Compl., ¶ 8. Keplar argues that being

required to train a female employee is circumstantial evidence of sex discrimination, yet he provides

no support for this assertion. See Doc. 39, Resp., 6. Keplar also argues that he was replaced by a

woman because Elkins temporarily performed his responsibilities. Doc. 39, Resp., 6 n.5. However,

Keplar indicates that Google ultimately replaced him with a man. Doc. 31, Second Am. Compl., ¶

15. These allegations do not make it plausible that Google fired Keplar because of his sex. Nor has

Keplar alleged any facts suggesting that his supervisors had any bias towards men in a manner similar

to that alleged in Cicalese. See 924 F.3d at 764–65. For example, Keplar did not allege that his

supervisors made derogatory comments regarding his protected characteristic. See id. (noting it was

“a close call” whether it was plausible the adverse employment actions were because of anti-Italian

bias). Without alleging any similar facts, Keplar has failed to meet his burden to survive a motion to

dismiss.

Keplar also argues his Second Amended Complaint shows Google has a pattern of replacing

male employees with female employees. Doc. 39, Resp., 5 n.4. For example, Keplar’s original

supervisor, Bob Allison, was fired and replaced by a woman. Doc. 31, Second Am. Compl., ¶ 6. Jeff

Perry, a man around 63 years old, and David Ooley, a man around 61 years old, were both replaced

by women around 53 or 54 years old. Id. ¶ 9. These facts, however, fail to make it plausible that

Google terminated Keplar because of his sex. These facts are unrelated to his termination because

they fail to show he was part of a larger pattern. Unlike Perry, Allison, and Ooley, Google did not

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hire a female employee to replace Keplar. Doc. 31, Second Am. Compl., ¶ 15; Doc. 39, Resp., 8 n.6.

Keplar was replaced by a man; under these circumstances, allegations that other employees were

replaced by women do not, by themselves, make it plausible that Keplar was fired because he was a

man. Additionally, Keplar does not allege any facts suggesting that Google fired these individuals

because they were men. Simply replacing male employees with female employees (or vice versa) does

not move Keplar’s sex discrimination claim from conceivable to plausible. See Cicalese, 924 F.3d at

767 (noting that the adverse employment action occurred because of the plaintiff’s protected status).

Notably, Keplar refers to Perry and Ooley as two examples of “other instances of apparent age

discrimination” in his Second Amended Complaint, and offers no facts, other than the sex of each

person involved, to suggest Perry and Ooley were replaced because they were men. Doc. 31, Second

Am. Compl., ¶ 9.

Alternatively, Keplar has not sufficiently pled his sex discrimination claim by identifying any

comparators that Google treated differently than him. As discussed above, courts can reference the

prima facie case to help determine whether a plaintiff pleaded the ultimate elements of a claim. See

Cicalese, 924 F.3d at 767. Here, Keplar would eventually be required to prove that Google treated

him “less favorably than others outside of his protected class.” See Olivarez, 997 F.3d at 600

(quotation and emphasis omitted). Keplar has nonetheless failed to identify anyone outside of his

protected class who is similarly situated to him or plead facts that suggest a comparator exists. Keplar

has not pled any facts suggesting other female employees at his level in Google failed to meet their

sales quotas or had similar negative performance reviews, let alone that any such individuals were

not fired. Thus, Keplar has likewise failed to state a claim using this theory.

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While a plaintiff need not prove their prima facie case for disparate treatment at the motion

to dismiss stage, they do need to plead facts that make it plausible they suffered the adverse

employment action because of their sex. Cicalese, 924 F.3d at 766–67. The facts offered by Keplar

fail to accomplish this. For these reasons, the Court finds that Keplar has failed to state a claim and

grants the motion to dismiss his sex discrimination claims.

B. Keplar Has Failed to State a Claim for Breach of Contract

Google also argues that Keplar’s state law breach of contract claim should be dismissed for

failure to state a claim. Doc. 37, Mot. Dismiss, 7. As part of Keplar’s employment agreement with

Google, he participated in the Plans, which provided benefits, including stock grants, to Google’s

employees. Doc. 31, Second Am. Compl., ¶ 17. Keplar’s only argument supporting his breach of

contract claim is that Google prevented him from fulfilling a condition precedent by terminating

him—this means, Keplar contends, that he is entitled to the stock grants that he would have

received had Google not terminated his employment. See Doc. 31, Second Am. Compl., ¶ 19(d);

Doc. 39, Resp., 11–12. Therefore, for the breach of contract claim to survive the motion to dismiss,

Keplar must plausibly plead that his employment agreement had a condition precedent. See Twombly,

550 U.S. at 556. The Court finds that Keplar has failed to do so.

“A condition precedent may be either a condition to the formation of a contract or to an

obligation to perform an existing agreement.” Allstate Ins. Co. v. Irwin, 627 S.W.3d 263, 270 (Tex.

2021) (quotation omitted). “A condition precedent to an obligation to perform . . . must occur before

there is a right to immediate performance and before there is a breach of contractual duty.” Id.

(quotation omitted). Texas law generally disfavors recognizing conditions precedent in contractual

provisions due to their harshness. Criswell v. Eur. Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 948

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(Tex. 1990). Examples of phrases indicating a disputed contract contains a condition precedent

include “if,” “provided,” and “on condition that.” Criswell, 792 S.W.2d at 948.

Ultimately, the terms of the Plans do not create any underlying obligation regarding stock

grants had Keplar remained employed by Google. The terms of the Plans give the committee

administering them significant discretion when deciding who receives benefits. See Doc. 31, Second

Am. Compl., ¶ 19(c)(4). In other words, Keplar was not guaranteed any stock or other type of grant

had he remained employed at Google. Because the Plans did not create any underlying obligation,

Keplar cannot support his breach of contract claim. See Allstate, 627 S.W.3d at 270.

However, even if the Plans created an underlying obligation, the Court would still find that

there was not a condition precedent. As discussed above, Keplar’s breach of contract claim relies on

the theory that Google prevented him from fulfilling a condition precedent by terminating him. See

Doc. 31, Second Am. Compl., ¶ 19(d) (“a claim for breach of contract based on the forfeiture of

stock to Plaintiff based solely on his no longer being employed by Defendant”). Keplar fails to point

to any language in “the Plans” that would create the asserted condition precedent. Because the only

contractual language Keplar references in the Second Amended Complaint was from the terms

governing the Plans, the Court will look to these terms to decide if there was a condition precedent.

The Plans do not include any conditional language such as “if,” “provided,” or “on condition

that.” See id. ¶ 19(c)(4). Instead, it simply says that the committee in charge of administering the

Plans “shall . . . from time to time, designate those employes and consultants of the Company . . .

who shall be granted Incentive Awards under the Plan and the amount, type and other terms and

conditions of such Incentive Awards.” Id. These discretionary terms are in stark contrast with the

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“if,” “provided,” or “on condition that” language provided in Criswell and fail to create a condition

precedent. See 792 S.W.2d at 948.

Because Keplar fails to allege that the Plans contain contractual language creating an

underlying obligation or the necessary conditional language to support finding a condition precedent,

the Court concludes Keplar has failed to state a breach of contract claim upon which relief can be

granted. See Criswell, 792 S.W.2d at 948.

C. Keplar Has Stated a Claim for Age Discrimination

Lastly, Keplar brings age discrimination claims under both the ADEA and Chapter 21 of the

TLC. Doc. 31, Second Am. Compl., ¶¶ 22, 24. The ADEA makes it "unlawful for an employer . .

. [to] 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). Similarly, the

TLC makes it unlawful to "discharge[] an individual" because of their age. TEX. LAB. CODE §

21.051(1). Because of the similarities between the two statutes, the Court will treat both causes of

action together for their prima facie cases. See King v. Stevenson Beer Distrib. Co., 11 F. Supp. 3d 772,

787 (S.D. Tex. Mar. 27, 2014) ("The requirements for establishing a prima facie discrimination claim

under [Texas law] mirror those of the ADEA.") (emphasis in original) (citation omitted); see also

Norsworthy v. Houston Indep. Sch. Dist., 70 F.4th 332, 337 (5th Cir. 2023) (listing the same elements

for a prima facie case of age discrimination under both the ADEA and Chapter 21 of the TLC).

To establish a prima facie case of age discrimination under the ADEA, a plaintiff must show:

"(1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class

at the time he suffered the adverse employment action; and (4) he was either (i) replaced by

someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged

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because of his age." Goudeau v. Nat'l Oilwell Varco, LP, 793 F.3d 470, 474 (5th Cir. 2015) (quotation

omitted).

Keplar pleaded sufficient facts on each element of his prima facie case for age discrimination.

See Cicalese, 924 F.3d at 766 (quotation omitted). First, Keplar suffered an adverse employment

action because Google fired him. See McCoy v. City of Shreveport, 492 F.3d 551, 559 (noting that

discharging an employee is an adverse employment action). Second, Keplar pleaded sufficient facts

to make it plausible that he was qualified for the position. He had significant sales and management

experience before working at Google. Doc. 31, Second Am. Compl., ¶ 5. Keplar also received strong

performance evaluations and met his sales quotas his first two years at Google. Id. Third, Keplar pled

sufficient facts establishing he was within a protected class under the ADEA when he was fired. The

ADEA prohibits discrimination against anyone, on the basis of age, who is more than 40 years old.

29 U.S.C. § 631(a)(1). He has alleged he was 64 years old when Google fired him. See id. ¶¶ 5, 15.

Fourth, Keplar alleged he was replaced by someone younger than him. See Rachid v. Jack In

The Box, Inc., 376 F.3d 305, 313 (5th Cir. 2004). The Supreme Court has said "an inference [of age

discrimination] cannot be drawn from the replacement of one worker with another worker

insignificantly younger." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996). Instead,

the replacement must be "substantially younger than the plaintiff" to support an inference of age

discrimination. Id. Keplar alleges he was replaced by a 47-year-old man. Doc. 31, Second Am.

Compl., ¶ 14. Keplar was around 64 years old when Google terminated him. See id. ¶¶ 5, 15. So,

Keplar alleged that his replacement was 17 years younger than him, which is sufficient to establish

he was replaced by someone substantially younger than him. Doc. 31, Second Am. Compl., ¶¶ 5,

14–15; see Rachid v. Jack In The Box, 376 F.3d 305, 313 (5th Cir. 2004) (noting, without deciding,

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that an age difference of five years presents a close question of whether a replacement is "substantially

younger"); see Young v. Harris Health Care, Inc., 226 F.3d 643, at *3 (5th Cir. 2000)

(unpublished)(determining that ten years was enough of an age difference to support a "substantially

younger" finding); see Irvin v. Ascension Par. Sch. Bd., No. CV 15-518-JWD-EWD, 2017 WL 354854,

at *1 (M.D. La. Jan. 24, 2017) (finding that "the eight and one quarter year difference between

Plaintiff and Yates satisfies [the substantially younger] standard."). Therefore, Keplar pleaded

sufficient facts to establish all four elements of his prima facie case for age discrimination.

Google argues that Keplar "simply [made] out a formulaic recitation of the elements of his

age discrimination claim." Doc. 42, Reply, 8. However, Keplar did not simply recite the elements of

an age discrimination claim—he pled specific facts that established each element of his prima facie

case, which is more than what is required at the pleadings stage. See Cicalese, 924 F.3d at 766. Keplar

only needs to plead sufficient facts to make his age discrimination claims plausible—he has met this

requirement. See Haskett v. T.S. Dudley Land Co., 648 F. App’x 492, 495–97 (5th Cir. 2016)

(unpublished) (vacating the district court dismissing the plaintiff's ADEA claim because the plaintiff

stated a prima facie case for age discrimination against the defendant).

Because Keplar has more than met his pleading requirements for his age discrimination claims

under the ADEA and the TLC, the Court denies Google's Motion to Dismiss Keplar's age

discrimination claims.

D. The Court Will Not Grant Keplar Leave to Amend

“[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies

before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the

court that they are unwilling or unable to amend in a manner that will avoid dismissal.” Great Plains

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Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). District courts give

plaintiffs leave to amend their complaints “when justice so requires.” Fed. R. Civ. P. 15(a)(2). This

liberal standard, however, is “tempered by the necessary power of a district court to manage a case.”

Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003).

When deciding whether to give parties leave to amend their complaints, district courts

consider the following factors: “undue delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party, and futility of amendment.” Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998)

(quotation and emphasis omitted). Granting leave to amend a complaint is futile if “the amended

complaint would fail to state a claim upon which relief could be granted.” Stripling v. Jordan Prod. Co.,

LLC, 234 F.3d 863, 873 (5th Cir. 2000).

While Keplar has not requested leave to amend his complaint, the Court will nevertheless

consider whether to grant him leave to do so. Keplar has had three opportunities to state a claim for

sex discrimination, and he has had two opportunities to state a claim for breach of contract. While

the Court did not address whether Keplar’s earlier complaints contained sufficient facts to survive

a motion to dismiss, Keplar did receive notice of potential deficiencies from Google’s first two

motions to dismiss. Despite receiving notice of potential deficiencies and having multiple

opportunities to amend his complaint, he still was unable to state a claim for sex discrimination and

breach of contract. The Court, therefore, concludes that any further amendments would also fail to

state a claim. For this reason, the Court determines it would be futile to allow him to amend his

complaint for a third time. Therefore, the Court dismisses these claims with prejudice.

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IV.

CONCLUSION

For the reasons explained above, the Court GRANTS in part and DENIES in part Google’s

Motion to Dismiss. Specifically, the Court DENIES the Motion as to Keplar’s claims for age

discrimination. The Court GRANTS the Motion as to Keplar’s claims for sex discrimination and

breach of contract. Keplar’s sex discrimination claim under Title VII, his sex discrimination claim

under Chapter 21 of the TLC, and his breach of contract claim are DISMISSED WITH

PREJUDICE.

SO ORDERED.

SIGNED: November 7, 2023.

NITED SWATES DISTRICT JUDGE

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