United States District Court, S.D. Mississippi, Western Division
ORDER AND OPINION
BRAMLETTE, UNITED STATES DISTRICT JUDGE
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.
employment-discrimination dispute arises from the United
States Department of Agriculture's decision not to hire
Orlando Kilcrease to fill a loan specialist position.
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).
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).
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.
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.
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).
did not respond to Defendants' motion. See L. U. Civ. R.
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).
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,