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Lustgarten v. Lowe's Home Centers, LLC.

United States District Court, D. Maine

November 19, 2015




Before the Court is the Defendant’s motion to dismiss Count III of the Plaintiff’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (“Def.’s Motion to Dismiss”) (ECF No. 15). Count III of the Amended Complaint alleges age discrimination in violation of the Maine Human Rights Act (the “MHRA”). For the reasons stated below, the motion is GRANTED.


Albert Michael Lustgarten (the “Plaintiff” or “Lustgarten”) is a 64-year-old Rockport, Maine resident who worked as a Department Manager at Lowe’s Home Centers, LLC (the “Defendant” or “Lowe’s”) in Thomaston, Maine for over 6 years. Am. Compl. ¶¶ 1, 6-8 (ECF No. 13). Plaintiff injured his knee and took leave for knee surgery in July of 2014. Am. Compl. ¶ 9. While on leave, a manager from Lowes’s “informed a friend of Plaintiff’s to warn Plaintiff of Lowe’s intent to terminate Plaintiff upon his return to work.” Am. Compl. ¶ 10. The Plaintiff returned to work on September 15, 2014 with work restrictions. Am. Compl. ¶ 12. On September 26, 2014, the Plaintiff was fired for allegedly being rude and unfriendly. Am. Compl. ¶ 13. The Plaintiff alleges that Lowe’s has a practice of terminating older employees with medical conditions. Am. Compl. ¶ 11.


Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Under Federal Rule of Civil Procedure 12(b)(6), a party may test the sufficiency of the complaint by moving to dismiss for “failure to state a claim upon which relief can be granted.” To survive this challenge, “the plaintiff need not demonstrate that [he] is likely to prevail, ” but “the claim must be ‘plausible on its face.’ ”Garcia-Catalan v. United States, 734 F.3d 100, 102-03 (1st Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

The plausibility inquiry requires two steps. Rodríguez-Reyes v. Molina- Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013). First, the court must distinguish “the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).” Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012). “Second, the court must determine whether the factual allegations are sufficient to support ‘the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Reilly v. Cox Enterprises, Inc., No.13-cv-785-S, 2014 WL 4473772, at *3 (D.R.I. Apr. 16, 2014) (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)). “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc). Ultimately, “[t]he make-or-break standard . . . is that the combined allegations, taken as true, must state a plausible, not a merely conceivable, case for relief.” Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).


I. Statutory Background

Lustgarten claims that Lowe’s discriminated against him on the basis of age in violation of the MHRA. 5 M.R.S. § 4572(1)(A). “Maine courts apply the MHRA in accordance with federal anti-discrimination law, ” including the Age Discrimination in Employment Act (the “ADEA”).[2] Boyajian v. Starbucks Corp., 587 F.Supp.2d 295, 303 n.3 (D. Me. 2008) (citing Forrest v. Brinker Intern. Payroll Co., LP, 511 F.3d 225, 228 n.1 (1st Cir. 2007)). Under the ADEA, it is unlawful for an employer “to discharge any individual . . . because of such individual's age.” 29 U.S.C. § 623(a)(1).

To establish a prima facie case of age discrimination under the ADEA, the plaintiff must show that: “(i) the plaintiff was over the age of forty, [3] (ii) his work was sufficient to meet his employer's legitimate expectations, (iii) his employer took adverse action against him, and (iv) the employer sought a replacement with roughly equivalent job qualifications, thus revealing a continued need for the same services and skills.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991). Moreover, the plaintiff ultimately “has the burden of establishing ‘that age was the ‘but-for’ cause of the employer’s adverse action.’ ” Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 138 (1st Cir. 2012) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)).

II. Application of the Law to the Facts

The Amended Complaint alleges that: (1) Lustgarten is over 40 years old; (2) he was qualified for his position; (3) Lowe’s fired him even though it had a continuing need for his services; and (4) the stated reason for Lustgarten’s termination is false. Am. Compl. ¶¶ 34-38. Lustgarten further claims he was terminated due to his age and that Lowe’s “employs a practice of terminating old employees with medical conditions.” Am. Compl. ¶¶ 11, 14.

Lustgarten argues that his claim for age discrimination should not be dismissed because he “has plead each element of the prima faci[e] case as well as plead that Lowe’s asserted justification for his termination is false.” Pl.’s Opp’n to Def.’s Mot. to Dismiss 2 (“Pl.’s Opp’n”) (ECF No. 17). Assuming for the purposes of argument that Lustgarten has plead each element of his prima facie case, [4] “pleading a prima facie case is not the same as pleading a plausible claim.” Reilly, 2014 WL 4473772, at *8. Although the prima facie elements are relevant in that they “may be used as a prism to shed light upon the plausibility of the ...

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