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Kilcrease v. United States Department of Agriculture

United States District Court, S.D. Mississippi, Western Division

August 6, 2018

ORLANDO KILCREASE PLAINTIFF
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, SONNY PERDUE, and STEVEN PETERSON DEFENDANTS

          ORDER AND OPINION

          DAVID BRAMLETTE, UNITED STATES DISTRICT JUDGE

         The United States Department of Agriculture, Secretary of Agriculture Sonny Perdue, and Farm Service Agency Acting Administrator Steven Peterson move the Court to dismiss Orlando Kilcrease's complaint for failure to state a claim. For the reasons that follow, the motion is DENIED.

         Background

         This employment-discrimination dispute arises from the United States Department of Agriculture's decision not to hire Orlando Kilcrease to fill a loan specialist position.

         Kilcrease is a 51 year-old African-American male and a 17-year veteran of the United States Department of Agriculture Farm Service Agency. (Doc. 1, ¶¶ 3, 8). For a time, Kilcrease served as the chairman of the Mississippi Farm Service Agency State Committee. (Doc. 1, ¶ 8).

         In March 2016, the United States Department of Agriculture Farm Service Agency posted an opening for a loan specialist position. (Doc. 1, ¶ 10). Kilcrease applied for the position. (Doc. 1, ¶ 10).

         A five-member interview panel reviewed applications for the position. (Doc. 1, ¶ 12). Each member of the panel was white and between the ages of 43 and 62. (Doc. 1, ¶ 12). The panel recommended four white applicants for the position, two of whom were less than 40 years old. (Doc. 1, ¶ 13). Kilcrease sued, alleging race and age discrimination. (Doc. 1).

         The United States Department of Agriculture, Perdue, and Peterson now move the Court to dismiss Kilcrease's complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc. 6). They argue that Kilcrease's complaint fails to allege plausible claims for race- and age-based discrimination because the complaint lacks factual allegations linking Kilcrease's race or age to the United States Department of Agriculture's decision not to hire him. (Doc. 7, p. 3).

         Defendants' motion is untimely: Defendants moved to dismiss seven days after answering Kilcrease's complaint. (Docs. 3, 6). So the Court construes the motion as a Federal Rule of Civil Procedure 12(c) motion for judgment on the pleadings. See, e.g., Yakovets v. Bailin, Civ. A. No. JKB-13-3439, 2014 WL 279697, at *1 (D. Md. Jan. 23, 2014); Jenkins v. Allied Interstate, Inc., Civ. A. No. 5:08-CV-125-DCK, 2009 WL 3157399, at *2 (W.D. N.C. Sept. 28, 2009); Bennerson v. City of New York, Civ. A. No. 10182-RWS, 2004 WL 902166, at *3 (S.D.N.Y. Apr. 28, 2004). Defendants' failure to timely file a Rule 12(b) motion is inconsequential because the Rule 12(c) and Rule 12(b)(6) standards are the same. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 318 n.8 (5th Cir. 2002).

         Kilcrease did not respond to Defendants' motion. See L. U. Civ. R. 7(b)(4).[1]

         I

         To overcome Defendants' motion, Kilcrease must allege a plausible claim for relief. Romero v. City of Grapevine, Tex., 888 F.3d 170, 176 (5th Cir. 2018) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is plausible if it is pleaded with factual content that allows the Court to reasonably infer that Defendants are liable for the misconduct alleged. Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (citing Iqbal, 556 U.S. at 678).

         In ruling on Defendants' motion, the Court accepts the complaint's well-pleaded facts as true and views them in the light most favorable to Kilcrease. Midwest Feeders, Inc. ...


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