George Leal v. John McHugh
2013 U.S. App. LEXIS 19677
| 5th Cir. | 2013Background
- Plaintiffs George Leal (b.1953) and John Lozano (b.1947) were long‑time employees at the Corpus Christi Army Depot’s Facilities, Engineering, and Management Division and applied for two new GS‑12 Construction Representative positions in 2009 but were not selected.
- The selecting official, Michael Webb, chose John Clay (similar age) and Rudy Solis (substantially younger); plaintiffs allege Salinas (FEMD chief) exerted influence, saying the department needed “new blood.”
- Plaintiffs exhausted administrative remedies (DoD investigator, EEOC ALJ hearing) and the agency found no discrimination; plaintiffs then sued under the ADEA (age discrimination) and Leal added a Title VII retaliation claim for prior EEO activity.
- The district court dismissed the complaint under Rule 12(b)(6), reasoning plaintiffs had pleaded a mixed‑motive case barred by Gross and that Leal’s retaliation claim lacked causal proximity; the district court also denied leave to amend.
- The Fifth Circuit reversed dismissal of the age‑discrimination claims (holding plaintiffs adequately pleaded a plausible claim under the federal‑sector ADEA provision) affirmed dismissal of Leal’s retaliation claim (temporal gap too attenuated), and affirmed denial of leave to amend on alternative grounds (futility and failure to propose specific additional facts).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of federal‑sector ADEA provision (§ 633a) | Claims arise from federal employment; federal‑sector ADEA applies | Defendant asserted plaintiffs waived reliance on § 633a | Court concluded federal‑sector provision applies (parties/district court treated case as federal sector) |
| Pleading sufficiency for age discrimination under ADEA | Plaintiffs alleged protected age, qualifications, nonselection, substantially younger selectee, and evidence of "new blood" statement and procedural irregularities — sufficient to state a claim | Defendant argued inconsistent/mixed‑motive allegations (personal relationship + age) defeat ADEA claim and that plaintiffs cannot both obtain the single position | Reversed district court: allegations, viewed in plaintiffs’ favor, are plausibly sufficient to survive 12(b)(6); mixed theories permissible at pleading stage |
| Causation standard post‑Gross for federal‑sector claim | Plaintiffs argued pleading need not show sole cause; case should proceed regardless of ultimate proof standard | Defendant argued Gross bars mixed‑motive ADEA claims and plaintiffs’ mixed allegations negate their claim | Court avoided deciding whether Gross’s but‑for standard applies to § 633a but held plaintiffs’ complaint would survive even under a but‑for standard at the pleading stage |
| Retaliation (Leal) — causal connection | Leal alleged participation in EEO activity as recently as 2006 and prior retaliation claim; this supports inference of retaliation | Defendant argued the temporal gap (3–9 years) is too remote to establish causation | Affirmed dismissal: temporal proximity too attenuated to plausibly plead causation |
Key Cases Cited
- Sebelius v. Hobby Lobby Stores, 635 F.3d 757 (5th Cir.) (procedural rule on 12(b)(6) reliance on complaint and judicially noticeable matters)
- Gross v. FBL Financial Servs., Inc., 557 U.S. 176 (2009) (ADEA plaintiff ordinarily must prove age was the but‑for cause of the adverse action)
- O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996) (replacement by substantially younger worker is strong evidence of age discrimination)
- Ford v. Mabus, 629 F.3d 198 (D.C. Cir.) (discussing that Gross’s but‑for standard may not apply to the ADEA federal‑sector provision)
- Jones v. Okla. City Pub. Schs., 617 F.3d 1273 (10th Cir.) (Gross does not require age be the sole cause; age must be the factor that made a difference)
- Smith v. City of Jackson, 351 F.3d 183 (5th Cir.) (elements of prima facie ADEA discrimination case)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state plausible claim to survive dismissal)
- Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) (protected trait must have determinative influence on the outcome)