Phillip Haskett v. T.S. Dudley Land Company, Inc.

Case: 14-41459 Document: 00513515656 Page: 1 Date Filed: 05/20/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41459 United States Court of Appeals

Fifth Circuit

FILED

PHILLIP DAVID HASKETT, May 20, 2016

Lyle W. Cayce

Plaintiff - Appellant Clerk

v.

T.S. DUDLEY LAND COMPANY, INCORPORATED; UNKNOWN CLIENTS

OF T.S. DUDLEY LAND COMPANY, INCORPORATED #1-#9; JON

DOUGHS #1-#9,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:14-CV-277

Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.

PER CURIAM:*

Phillip Haskett applied for petroleum landman positions with the T.S.

Dudley Land Company (“TSD”). TSD didn’t hire him. He sued for age

discrimination, and now appeals the district court’s dismissal of his complaint.

We VACATE that dismissal in part, AFFIRM in part, and REMAND.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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I

Haskett alleged the following facts in his first amended complaint. 1

Haskett was born in 1957. He is a “Registered Professional Landman (RPL)

certified by the Association of Professional Landmen (AAPL)” and has ten

years’ experience in the field. 2 TSD is an Oklahoma-based petroleum land

management company. Beginning in 2012, TSD posted several job openings on

an industry website. Haskett applied for the jobs by submitting his resume to

TSD, but TSD never responded. Instead, it hired younger workers. Haskett

believes TSD discriminated against him because of his age, “as part of a

suspected industry-wide effort to replace the existing labor force with younger,

less experienced but more easily manipulated employees.”

Haskett filed an Age Discrimination in Employment Act (ADEA)

complaint with the Equal Employment Opportunity Commission (EEOC). 3

TSD responded, as described in greater detail below. The EEOC investigated,

found no evidence of unlawful discrimination, and issued Haskett a Dismissal

and Notification of Rights letter affirming his right to sue. He did so, naming

as defendants TSD and various unspecified clients and employees of the

company. TSD then moved to dismiss for failure to state a claim, arguing that

Haskett’s complaint alleged insufficient facts. Haskett amended his complaint

in response, and TSD filed a second motion to dismiss. 4 The district court

1 Because Haskett appeals from the dismissal of his complaint under Rule 12(b)(6),

we accept all of its well-pleaded facts as true. Raj v. Louisiana State Univ., 714 F.3d 322,

329-30 (5th Cir. 2013).

2 Haskett elaborates: “The level of experience required to obtain an RPL certification

is well-known within the petroleum land management industry, and an RPL designation is

generally accepted in the industry as evidence of significant competency as a landman.”

3 See 29 U.S.C. § 623(a)(1) (“It shall be unlawful for an employer to fail or refuse to

hire . . . any individual . . . because of such individual’s age . . . .”).

4 TSD claims that “the on-line postings for a contract landman to which Appellant

responded were for independent contractor positions and therefore T.S. Dudley is not an

‘employer’ within the meaning of the ADEA,” but concedes that “for the purposes of the

Motion to Dismiss filed by T.S. Dudley in the lower court, T.S. Dudley argued that, even if it

2

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summarily granted that motion, and Haskett appealed. “We review a district

court’s grant of a motion to dismiss based on failure to state a claim de novo,

accepting all well-pleaded facts in the complaint as true and viewed in the light

most favorable to the plaintiff.” 5

II

Before assessing the sufficiency of Haskett’s complaint, we address a few

preliminary issues. First, in a point of purported error, Haskett claims that the

district court abused its discretion by “failing to advise [him] that he should

amend his complaint” a second time. 6 As his elliptical phrasing reveals,

Haskett did not ask the district court for leave to re-amend his complaint. Nor

does he cite additional facts that he might have introduced. Therefore, the

district court did not abuse its discretion in failing to invite a second

amendment, Haskett’s pro se status notwithstanding. 7

Second, although Haskett sued several defendants, only his claims

against TSD itself are preserved on appeal. In his reply brief, Haskett appears

to explicitly waive what he terms his “Respondeat Superior claims” insofar as

they are separate from his claim against TSD. Presumably, this refers to his

was an employer, Appellant failed to state a plausible claim for age discrimination under the

ADEA.” To be sure, we could affirm the dismissal anyway if we found that TSD was not an

“employer” for purposes of Haskett’s suit, rendering that suit legally unsupported. See Hosein

v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006) (“We may affirm a district court’s Rule 12(b)(6)

dismissal on any grounds supported by the record.”). However, we find the record

insufficiently developed to allow such a fact-intensive determination, especially since TSD

did not argue the “independent contractor” issue below or in this court.

5 Raj v. Louisiana State Univ., 714 F.3d 322, 329-30 (5th Cir. 2013).

6 Haskett also claims, as another point of purported error, that the district court failed

to liberally construe his pro se pleadings. Even if so, this is not reversible error per se, but

rather informs our analysis of whether dismissal was proper.

7 See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (“Brewster [a pro se litigant]

gives no indication that he did not plead his best case in his complaint and more definite

statement. He does not state any material facts he would have included in an amended

complaint. Brewster has therefore failed to show that the district court abused its discretion

by dismissing his complaint without granting him leave to amend.” (citations and footnote

omitted)).

3

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claims against the unnamed employee and client defendants. In any event,

Haskett’s briefing focuses exclusively on TSD and does not mention the

unnamed defendants, nor argue that his claim against them was improperly

dismissed. Therefore, only Haskett’s claim against TSD itself is live, and the

district court’s dismissal as to the other defendants stands. 8

Finally, TSD argues that Haskett’s request below for a declaratory

judgment was properly dismissed in any event because such a request does not

amount to an independent cause of action. 9 In his amended complaint, Haskett

presented a request for declaratory judgment both as a “second claim for relief”

and in a list of desired remedies at the end of the complaint. His reply brief

appears to clarify that the request was derivative of his main ADEA claim, i.e.,

that it was remedial in nature. Thus, we need not address whether it could or

should have survived as a separate claim for relief.

III

We now consider whether Haskett’s complaint sufficiently stated a

claim. We have not specified a distinct pleading threshold for ADEA claims,

and the Supreme Court has affirmed that none exists. 10 Thus, the typical Rule

12(b)(6) standard applies: a complaint must “plead ‘enough facts to state a

claim to relief that is plausible on its face.’” 11

8 See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all

issues not raised and argued in its initial brief on appeal.”).

9 See, e.g., Val-Com Acquisitions Trust v. CitiMortgage, Inc., 421 F. App’x 398, 400-01

(5th Cir. 2011) (unpublished) (“In a declaratory judgment action, the parties litigate the

underlying claim, and the declaratory judgment is merely a form of relief that the court may

grant.”).

10 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (in an employment

discrimination case under the ADEA and Title VII, rejecting a “heightened pleading standard

in employment discrimination cases”); see, e.g., Leal v. McHugh, 731 F.3d 405, 410, 413 (5th

Cir. 2013) (relying on general principles of notice pleading, as set forth in Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), in reversing the

district court’s Rule 12(b)(6) dismissal of ADEA claims).

11 Leal, 731 F.3d at 410 (quoting Twombly, 550 U.S. at 570).

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“[A] plaintiff need not make out a prima facie case of discrimination in

order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim”; 12

however, “the elements of a prima facie case are helpful . . . in framing what

constitutes an ADEA claim.” 13 Haskett stated a prima facie case against TSD

because he alleged in his complaint that “(1) he belongs to a protected class; (2)

he applied for and was qualified for a position that was seeking applicants; (3)

he was rejected; and (4) following his rejection, another applicant not of the

protected class was hired.” 14 In another recent ADEA case, Wooten, we found

that an ADEA complaint satisfied Rule 8 (from which Rule 12(b)(6)’s

plausibility requirement derives) 15 by alleging only that the complainant had

worked for a company, that he filed an age discrimination charge against the

company, and that the company constructively discharged him in response,

causing him harm. 16 If anything, Haskett’s filing was more factually detailed

than the bare-bones complaint we accepted in Wooten. We find that his

12 Raj, 714 F.3d at 331 (Title VII race discrimination case); see Flores v. Select Energy

Servs., L.L.C., 486 F. App’x 429, 432 (5th Cir. 2012) (unpublished) (applying this rule in an

ADEA case).

13 Flores, 486 F. App’x at 432.

14 Haas v. ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir. 1999).

15 Twombly, 550 U.S. at 557 (Rule 12(b)(6)’s plausibility requirement derives from the

“threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘show

that the pleader is entitled to relief.’”) (alteration omitted); Gen. Elec. Capital Corp. v. Posey,

415 F.3d 391, 396-97 (5th Cir. 2005) (similar). Wooten addressed whether the complaint at

issue sufficed to support a default judgment, not a Rule 12 motion to dismiss. Of course,

dismissal may still be warranted under Rule 12(b)(6), despite compliance with Rule 8, if the

complaint’s factual allegations could not possibly give rise to a right to relief, but TSD focused

below and in this court on the factual sufficiency of Haskett’s complaint. See supra note 4;

Bank of Abbeville & Trust Co. v. Commonwealth Land Title Ins. Co., 201 F. App’x 988, 990

(5th Cir. 2006) (unpublished) (“[M]ere compliance with Rule 8 does not itself immunize the

complaint against a motion to dismiss.”).

16 Wooten v. McDonald Transit Associates, Inc., 788 F.3d 490, 498 (5th Cir. 2015). The

Wooten complaint did not specify the nature of the company’s allegedly unlawful actions, but

stated only that it “discriminated and retaliated against [Wooten], and created a hostile work

environment, until such time that [Wooten] was constructively discharged.” Id.

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complaint gave TSD “fair notice” of his age discrimination claim, and therefore

met Rule 12(b)(6)’s factual sufficiency requirement. 17

In arguing otherwise, TSD relies heavily on its response to Haskett’s

EEOC charge. In that response, TSD indicated that 1) its records indicated

that Haskett only applied for one opening; 2) the opening was for a project for

which the company ultimately hired “8-10” landmen, three of whom were over

the age of 50; and 3) Haskett was not hired for the project because he did not

live near the worksite and because his prior work for TSD was unsatisfactory.

Haskett attached TSD’s response as an exhibit to his complaint, so we

may consider it in ruling on TSD’s motion to dismiss. 18 Nonetheless, at this

stage, it would be perverse to use TSD’s self-serving claims to reject Haskett’s

factual allegations, as we recently recognized in Bosarge. In that case, the

defendants moved for judgment on the pleadings and attached affidavits to

their motion. The plaintiff, Bosarge, then filed an amended complaint which

“borrow[ed] a number of facts from the . . . affidavits, while disputing other

claims made in” them. The defendants claimed that Bosarge had effectively

incorporated these affidavits into his complaint, requiring this court to accept

them as true for purposes of their motion for judgment on the pleadings. We

disagreed:

[W]hile the affidavits may be considered as an aid to evaluating

the pleadings, they should not control to the extent that they

conflict with Bosarge’s allegations. We distinguish these affidavits

from contracts and medical records attached to a complaint, which

we have held generally trump contradictory allegations in the

complaint. Accepting the Defendant-agents’ unilateral statements

as true would deprive Bosarge of the presumption of truth to which

17 Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see

Wooten, 788 F.3d at 499-500.

18 See, e.g., Bosarge v. Mississippi Bureau of Narcotics, 796 F.3d 435, 440 (5th Cir.

2015); Kamps v. Baylor Univ., 592 F. App’x 282, 284 n.1 (5th Cir. 2014), cert. denied, 135 S.

Ct. 2380 (2015) (unpublished).

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he is entitled at this stage of the litigation. . . . We therefore do not

accept as true all allegations in the agents’ affidavits[.] 19

The same logic straightforwardly applies here. 20 Haskett clearly did not

adopt TSD’s allegations to the EEOC as his own for purposes of his complaint. 21

They are therefore still “unilateral” and to the extent they are in tension with

the complaint itself, they cannot control. 22 Rather, any such tension is an

evidentiary issue appropriate for summary judgment analysis. 23

CONCLUSION

“[A] well-pleaded complaint may proceed even if it strikes a savvy judge

that actual proof of [its allegations] is improbable.” 24 Haskett’s complaint

partially clears the low bar of Rule 12(b)(6). Accordingly, we VACATE the

dismissal of his claim against TSD, AFFIRM the dismissal as to all other

parties, and REMAND for further proceedings consistent with this opinion.

19 Bosarge, 796 F.3d at 440-41 (5th Cir. 2015); see also id. (citing Scanlan v. Tex. A &

M Univ., 343 F.3d 533, 537 (5th Cir. 2003), for the proposition that “even where a document

attached to a motion to dismiss is incorporated into the pleadings [including the complaint],

the district court still must ‘construe the plaintiffs’ factual allegations in the light most

favorable to the plaintiffs’”).

20 Indeed, Bosarge noted that the analyses for 12(b)(6) dismissal and judgment on the

pleadings were similar. Id.

21 To the contrary, he disputes them extensively in the complaint.

22 See also N. Indiana Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449,

455 (7th Cir. 1998) (“To conclude summarily . . . that letters written by [defendants] represent

the truth with regard to the defendants’ intent simply because [plaintiff] attached them to

its complaint for reasons unrelated to their truthfulness is inappropriate. . . . A blanket

adoption rule makes sense in the context of an attached contract or loan agreement because

the contract represents an agreement between two or more parties to which the law binds

them. We are not inclined to apply such a rule in the case of letters written by the opposition

for what could be self-serving purposes.”).

23 See Lormand v. US Unwired, Inc., 565 F.3d 228, 267 (5th Cir. 2009).

24 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

7