           Case: 17-13452   Date Filed: 04/09/2018   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13452
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:16-cv-04385-ODE



PATRICIA BUCHANAN,

                                                           Plaintiff-Appellant,

                                    versus

DELTA AIR LINES, INC.,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (April 9, 2018)

Before TJOFLAT, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Patricia Buchanan appeals the District Court’s dismissal of her complaint for

failure to state a claim in her action against her former employer, Delta Air Lines,

Inc. (“Delta”), alleging age discrimination and retaliation, in violation of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), (d). Buchanan

contends that she was not required to plead specific facts to establish a prima facie

case, and that she pleaded sufficient facts to raise her right to relief above a

speculative level.

      We address Buchanan’s discrimination claim first, followed by her

retaliation claim.

                                           I.

      “We review de novo the district court’s grant of a motion to dismiss under

12(b)(6) for failure to state a claim, accepting the allegations in the complaint as

true and construing them in the light most favorable to the plaintiff.” Hill v. White,

321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam). A party must allege more than

“labels and conclusions,” and her complaint must include “[f]actual allegations

[adequate] to raise a right to relief above the speculative level.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). A complaint

that merely provides “a formulaic recitation of the elements of a cause of action” is

inadequate. Id.




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      A complaint asserting employment discrimination under the ADEA need not

contain specific facts establishing a prima facie case. Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 511, 122 S. Ct. 992, 997 (2002). The Supreme Court

explained that the burden-shifting analysis in employment discrimination claims is

an evidentiary standard rather than a pleading standard. Id. at 510, 122 S. Ct. at

997. Although an employment discrimination complaint need not allege facts

sufficient to make out a prima facie case, it must nonetheless provide enough

factual matter to plausibly suggest intentional discrimination. Surtain v. Hamlin

Terrace Found., 789 F.3d 1239, 1246 (11th Cir. 2015) (per curiam). “Where a

complaint pleads facts that are merely consistent with a defendant’s liability, it

stops short of the line between possibility and plausibility of entitlement to relief.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotations

omitted).

      The ADEA prohibits employers from discriminating against an employee

who is at least 40 years of age because of that employee’s age. 29 U.S.C. §§

623(a)(1), 631(a). To succeed at trial on an age-discrimination claim under the

ADEA, the plaintiff must prove that age was the “but-for” cause of the adverse

employment decision giving rise to her complaint. Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167, 177, 129 S. Ct. 2343, 2351 (2009).




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      Here, Buchanan’s complaint was sufficient to survive Delta’s motion to

dismiss her age-discrimination claims. Buchanan alleged that the proffered reason

for her termination was pretextual because she had an excellent work record, did

not actually violate the travel companion policies for which she was investigated

and that the company had no evidence that she violated any policies. She further

alleged that Delta’s CEO publicly announced on multiple occasions that the

company planned a push to hire younger workers such that half of Delta’s

workforce would be comprised of millennials by 2020. Based on her knowledge

of Delta’s workforce as an employee of three decades, she alleged that Delta could

not hire large numbers of younger workers without eliminating many older

workers to make room for them. Buchanan next averred that, based on her own

observations and observations by coworkers she knew, Delta had a policy of firing

older workers over trivial or non-existent infractions of company rules while

refusing to discipline younger workers for the same infractions. She further

alleged that she and other of her Delta coworkers observed that millennials

comprised the vast majority of newly hired Delta employees.

      Thus, Buchanan alleged facts to establish that Delta: (i) fabricated a reason

for suspending and terminating her, (ii) fired other older workers for trivial

reasons, (iii) prioritized hiring younger workers, and (iv) was in the process of

replacing its older workers with younger workers. Taken in isolation, these facts


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would perhaps be too vague and non-specific to support a claim of age

discrimination. But accepting as true for purposes of Delta’s motion to dismiss

that Buchanan was fired for a policy violation she did not commit, considered

together, these allegations are enough to make out a plausible claim that the stated

reasons for her termination were pretextual and that her age was the cause of her

termination.

      The District Court rested its dismissal of Buchanan’s age-discrimination

claim on the fact that the allegations she raised failed to establish a prima facie

case of age discrimination under the framework articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Under that framework, a

plaintiff may establish a prima facie case for an ADEA violation by alleging that:

(1) she was a member of a protected class; (2) she was subjected to an adverse

employment action; (3) she was qualified to do the job; and (4) she was replaced

by or otherwise lost a position to a younger individual. Kragor v. Takeda

Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012). This was in

error. The Supreme Court has made clear that a plaintiff does not need to establish

a prima facie age-discrimination case in order to survive a Rule 12(b)(6) motion to

dismiss. See Swierkiewicz, 534 U.S. at 510, 122 S. Ct. at 997 (explaining that the

McDonnell Douglas burden-shifting standard for making out a prima facie case “is

an evidentiary standard, not a pleading requirement”).


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      Although her complaint would not have established a prima facie case under

McDonnell Douglas, Buchanan alleged facts adequate to raise her right to relief

above a speculative level. This was all that was required at the pleading stage. See

Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (“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.” (quotations omitted)).

      Accordingly, we vacate the District Court’s dismissal of Buchanan’s

discrimination claim.

                                           II.

      The ADEA prohibits retaliation against employees who “opposed any

practice” made unlawful by the ADEA. 29 U.S.C. § 623(d). To establish a prima

facie case of retaliation, a plaintiff may show that: (1) she engaged in a statutorily

protected activity; (2) she suffered a materially adverse action; and (3) she

established a causal link between the protected activity and the adverse action.

Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1193–94 (11th Cir.

2016).

      A plaintiff can establish causation by showing a “very close” temporal

proximity between the statutorily protected activity and the adverse action.

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (per

curiam) (internal quotation marks omitted). However, “in a retaliation case, when


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an employer contemplates an adverse employment action before an employee

engages in protected activity, temporal proximity between the protected activity

and the subsequent adverse employment action does not suffice to show

causation.” Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006).

      Here, Buchanan asserts that Delta retaliated by terminating her for filing an

internal complaint of discrimination after she was placed on suspension for a

purported policy violation. However, the only causal link Buchanan cites between

her internal complaint and her subsequent termination is temporal proximity.

Because her internal complaint occurred after she was already placed on

suspension and under investigation, temporal proximity alone cannot establish

causation.

      Accordingly, we affirm the District Court’s dismissal of Buchanan’s

retaliation claim.

      VACATED IN PART AND REMANDED; AFFIRMED IN PART.




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