United States District Court, N.D. Mississippi, Oxford Division
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE
before the court is Defendant's motion to dismiss for
failure to state a claim. Upon due consideration of the
motion, response, complaint and documents attached thereto,
the court is ready to rule.
and Procedural Background
instant suit arises from Plaintiff Lola Silas' employment
with Defendant Ellis Turnage. Silas was employed for a short
time as a legal secretary at Turnage's law office. Silas
alleges that, during her employment, Turnage
“questioned [her] ability to perform [her] duties,
asked [her] age, and stated that a younger person could
perform the [job] with no difficulty.” Silas further
alleges that she was fired after she complained to Turnage
about the alleged discriminatory remark.
subsequently filed a charge with the Equal Employment
Opportunity Commission (“EEOC”), alleging age
discrimination under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621. Shortly
thereafter, the EEOC sent Silas a letter stating that it had
no authority to investigate Silas' charge because Turnage
did not have the requisite number of employees to be a
covered “employer” under the ADEA.
acting pro se, filed the instant action on August
31, 2018, seemingly asserting claims for age discrimination
under the ADEA, Title VII of the Civil Rights Act
(“Title VII”), 42 U.S.C. §2000e, and 42
U.S.C. §1981. Turnage now moves to dismiss for failure
to state a claim upon which relief can be granted.
complaint must contain a “short and plain statement . .
. showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). For a plaintiff to survive a Rule
12(b)(6) motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
motion to dismiss for failure to state a claim tests both the
legal and factual sufficiency of a plaintiff's complaint.
Id. at 679. Though motions to dismiss are
“viewed with disfavor and [are] rarely granted, ”
the burden rests on the plaintiff to prove her claim should
go forward. Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 497 (5th Cir. 2000).
the ADEA, “[i]t shall be unlawful for an
employer to . . . discharge any individual or
otherwise discriminate against any individual . . . because
of such individual's age.” 29 U.S.C. §
623(a)(1) (emphasis added). The ADEA defines an
“employer” as “a person engaged in an
industry affecting commerce who has twenty  or
more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar
year.” 29 U.S.C. §630(b) (emphasis added).
moving to dismiss, Turnage argues, and Silas does not
dispute, that he is not subject to the ADEA because he lacks
the requisite number of employees to be deemed an
“employer” under the statute. The statute's
employee-numerosity requirement is an element of Silas'
ADEA claim which must be established. See Arbaugh v.
Y& H Corp., 546 U.S. 500, 502 (2006); see also
Dowdle v. MSE Const., 2013 WL 3216065 (E.D. La. Jun. 24,
2013). Because Turnage is not an “employer”
within the meaning of the ADEA, the court finds that this
claim must be dismissed.
addition to her ADEA claim, Silas asserts claims for age
discrimination under Title VII and §1981. Neither of those
statutes, however, prohibit discrimination based upon
one's age. See 42 U.S.C. 2000e-2 (providing that
“it shall be an unlawful employment practice for an
employer to discharge any individual . . . because of such
individual's race, color, religion, sex or national
origin”); General Bldg. Contractors Ass'n, Inc.
v. Pennsylvania, 458 U.S. 375, 384 (1982) (noting that
§1981 purports to eradicate racial inequality).
Accordingly, the court finds that Silas's claims asserted
under these statutes must fail.
on the foregoing discussion, the court finds that
Defendant's motion to dismiss for failure to state a
claim is well-taken is should be granted. A separate ...