                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0518n.06

                                         Case No. 18-5397

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                   FILED
                                                                               Oct 18, 2018
MARY A. SMITH,                                          )                 DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellant,                             )
                                                        )   ON APPEAL FROM THE UNITED
v.                                                      )   STATES DISTRICT COURT FOR
                                                        )   THE EASTERN DISTRICT OF
WRIGLEY MANUFACTURING                                   )   TENNESSEE
COMPANY, LLC,                                           )
                                                        )
       Defendant-Appellee.                              )


       BEFORE: KEITH, COOK, and LARSEN, Circuit Judges.

       COOK, Circuit Judge.          Mary Smith claims that her former employer, Wrigley

Manufacturing Company, violated the Age Discrimination in Employment Act (ADEA) when it

fired her based on her age. Because she has failed to plead facts sufficient to raise a plausible

inference of age discrimination, we AFFIRM the district court’s grant of Wrigley’s motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6).

                                                  I.

       This being a motion to dismiss, we draw the facts from the allegations of the Amended

Complaint. It stated, in its entirety, the following:

       Plaintiff was a longtime employee of [Wrigley] and its predecessor company.
       Despite Plaintiff’s good record with [Wrigley], [Wrigley] discharged the
       employment of Plaintiff on or about March 3, 2016. This discharge was largely
       based upon the pretext of alleged misconduct when the real motivation was age
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Smith v. Wrigley Mfg. Co.


       discrimination in violation of 29 U.S.C. § Sections [sic] 621 to 634. Plaintiff is and
       was over 40 years of age at the time of discharge. The conduct of [Wrigley] in
       discharging Plaintiff was inconsistent with the way Plaintiff was treated in her
       many years of service with [Wrigley] and its predecessors, and inconsistent with
       the way other employees similarly situated, who were younger, were treated.
       Plaintiff was qualified for her position and had been so during her many years of
       service. [Wrigley] did not object to Plaintiff drawing unemployment. Plaintiff
       before being terminated always gave [Wrigley] her best effort as she had always
       done for years. Younger employees that were performing on a par with Plaintiff
       were still working with [Wrigley] after Plaintiff’s discharge.

       After her firing, Smith filed a complaint with the Equal Employment Opportunity

Commission, which dismissed it. She then timely filed this suit under the ADEA, 29 U.S.C.

§§ 621–634, alleging that she had been fired because of her age. The district court dismissed the

complaint because it recited only the elements of an age discrimination claim. It alleged no facts

regarding how younger employees were treated differently than Smith, how those employees were

“similarly situated,” how much younger those employees were, or what Smith meant by her

allegation that younger employees were “performing on a par” with her at the time of her firing.

                                                 II.

       We review de novo the district court’s grant of a motion to dismiss for failure to state a

claim. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a 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) (quotation omitted). A claim

is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint

must contain “more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). And though




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Smith v. Wrigley Mfg. Co.


we accept as true plaintiff’s factual allegations, we need not accept as true plaintiff’s legal

conclusions. Gean v. Hattaway, 330 F.3d 758, 765 (6th Cir. 2003).

                                                 III.

       The ADEA prohibits an employer from “discriminating against an employee over the age

of forty because of the employee’s age.” House v. Rexam Beverage Can Co., 630 F. App’x 461,

463 (6th Cir. 2015). To establish a prima facie case of age discrimination, the ADEA plaintiff

“must show that: (1) she was over 40 years old; (2) she suffered an adverse employment action;

(3) she was qualified for the position she held; and (4) she was either replaced by a person outside

the protected class or treated differently than similarly-situated individuals.” Id. at 462. The

district court found that Smith’s complaint did not plausibly link her age and her termination

because it merely recited the elements of an age discrimination claim. We agree.

       Our cases support the court’s choice to dismiss here. Though Smith objects to the district

court foreclosing her proceeding and finding proof through discovery, her complaint needed to

present factual allegations sufficient for the court to draw a reasonable inference of discrimination.

Keys, 684 F.3d at 610. In the absence of facts regarding the ages or positions of the younger,

similarly-situated employees, or any example of how those employees were treated differently, the

court could not do so.

       In Rhodes v. R & L Carriers, Inc., 491 F. App’x 579 (6th Cir. 2012), we reversed the district

court’s dismissal of an age discrimination claim where plaintiff alleged express statements from

defendant’s upper management endorsing the use of age in the hiring process—specifically, that

the average age of the workforce needed to be lowered and maximum age limits set for certain

positions. Id. at 584. Smith proffers nothing of the sort. Nor do her allegations resemble those in

Keys, a race discrimination case, where plaintiff provided several examples of specific adverse

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Smith v. Wrigley Mfg. Co.


employment actions, including co-workers of a different race in identical positions being given a

different title and paid more. 684 F.3d at 607, 610.

       Instead, Smith’s allegations mirror those we have seen and rejected—naked recitations of

the elements unenhanced by specific facts. In House, we found plaintiff’s allegations of age

discrimination insufficient because he failed to plead any “facts regarding the names, relative ages,

or qualifications” of the younger employees who allegedly assumed his job duties, or to provide

examples of how those employees were treated more favorably. 630 F. App’x at 464; see also

Downs v. Bel Brands USA, Inc., 613 F. App’x 515, 519 (6th Cir. 2015). And in Sam Han v.

University of Dayton, 541 F. App’x 622 (6th Cir. 2013), we dismissed plaintiff’s race and gender

discrimination claim for precisely the same reasons: no specifics regarding the other employees or

their differing treatment. Id. at 627.

       So too here. Though Smith mentioned that younger employees who were “performing on

a par” with her were still employed when she was fired, she offered no names, ages, or

qualifications for the younger employees who were treated differently, or any examples of how

their treatment differed. Without additional facts, the court cannot infer that Wrigley fired Smith

because of her age. See Keys, 684 F.3d at 610.

       Smith rejoins that under Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), she must be

allowed to use discovery to uncover direct evidence of discrimination. But Swierkiewicz addressed

pleading thresholds applicable to survive a motion to dismiss; it “did not change the law of

pleading.” Keys, 684 F.3d at 609 (quoting Twombly, 550 U.S. at 570); see Pedreira v. Ky. Baptist

Homes for Children, Inc., 579 F.3d 722, 728 (6th Cir. 2009) (“[T]he ordinary rules for assessing

the sufficiency of a complaint apply.”). As such, it offers no gateway for a plaintiff to side-step

the “plausibility” standard laid out in Twombly and Iqbal. Keys, 684 F.3d at 609–10; see Iqbal,

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Smith v. Wrigley Mfg. Co.


556 U.S. at 678 (noting that plaintiff must plead “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation”).

       Finally, Smith argues that the district court should have considered that, after allegedly

firing her for misconduct, Wrigley decided not to contest her unemployment compensation

application on that ground. But even considering Wrigley’s inaction, given Smith’s threadbare

allegations, the court correctly chose not to draw an inference of age discrimination. Iqbal, 556

U.S. at 678. Many reasons could support Wrigley’s decision to forgo objecting; the district court

need not draw the inference that discrimination explains the decision. See, e.g., House, 630 F.

App’x at 464; see also Criddle v. Piggly Wiggly of Amory, No. 99-60677, 2000 WL 329371, at *2

(5th Cir. Mar. 23, 2000) (stating that defendant’s failure to challenge an application for

unemployment benefits, by itself, did not demonstrate that the legitimate reasons proffered for

termination were a pretext for discrimination). The plausibility standard, though it does not require

probability, “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,

556 U.S. at 678.

                                                IV.

       Smith’s complaint recited the signposts of an age discrimination claim, but failed to supply

the factual content the district court needed to connect the dots. We therefore AFFIRM the district

court’s dismissal of Smith’s complaint.




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