     Case: 14-41459      Document: 00513515656         Page: 1    Date Filed: 05/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-41459                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
PHILLIP DAVID HASKETT,                                                      May 20, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

T.S. DUDLEY LAND COMPANY, INCORPORATED; UNKNOWN CLIENTS
OF T.S. DUDLEY LAND COMPANY, INCORPORATED #1-#9; JON
DOUGHS #1-#9,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:14-CV-277


Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.
PER CURIAM:*
       Phillip Haskett applied for petroleum landman positions with the T.S.
Dudley Land Company (“TSD”). TSD didn’t hire him. He sued for age
discrimination, and now appeals the district court’s dismissal of his complaint.
We VACATE that dismissal in part, AFFIRM in part, and REMAND.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                               I
       Haskett alleged the following facts in his first amended complaint. 1
Haskett was born in 1957. He is a “Registered Professional Landman (RPL)
certified by the Association of Professional Landmen (AAPL)” and has ten
years’ experience in the field. 2 TSD is an Oklahoma-based petroleum land
management company. Beginning in 2012, TSD posted several job openings on
an industry website. Haskett applied for the jobs by submitting his resume to
TSD, but TSD never responded. Instead, it hired younger workers. Haskett
believes TSD discriminated against him because of his age, “as part of a
suspected industry-wide effort to replace the existing labor force with younger,
less experienced but more easily manipulated employees.”
       Haskett filed an Age Discrimination in Employment Act (ADEA)
complaint with the Equal Employment Opportunity Commission (EEOC). 3
TSD responded, as described in greater detail below. The EEOC investigated,
found no evidence of unlawful discrimination, and issued Haskett a Dismissal
and Notification of Rights letter affirming his right to sue. He did so, naming
as defendants TSD and various unspecified clients and employees of the
company. TSD then moved to dismiss for failure to state a claim, arguing that
Haskett’s complaint alleged insufficient facts. Haskett amended his complaint
in response, and TSD filed a second motion to dismiss. 4 The district court


       1   Because Haskett appeals from the dismissal of his complaint under Rule 12(b)(6),
we accept all of its well-pleaded facts as true. Raj v. Louisiana State Univ., 714 F.3d 322,
329-30 (5th Cir. 2013).
         2 Haskett elaborates: “The level of experience required to obtain an RPL certification

is well-known within the petroleum land management industry, and an RPL designation is
generally accepted in the industry as evidence of significant competency as a landman.”
         3 See 29 U.S.C. § 623(a)(1) (“It shall be unlawful for an employer to fail or refuse to

hire . . . any individual . . . because of such individual’s age . . . .”).
         4 TSD claims that “the on-line postings for a contract landman to which Appellant

responded were for independent contractor positions and therefore T.S. Dudley is not an
‘employer’ within the meaning of the ADEA,” but concedes that “for the purposes of the
Motion to Dismiss filed by T.S. Dudley in the lower court, T.S. Dudley argued that, even if it
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                                        No. 14-41459
summarily granted that motion, and Haskett appealed. “We review a district
court’s grant of a motion to dismiss based on failure to state a claim de novo,
accepting all well-pleaded facts in the complaint as true and viewed in the light
most favorable to the plaintiff.” 5
                                               II
       Before assessing the sufficiency of Haskett’s complaint, we address a few
preliminary issues. First, in a point of purported error, Haskett claims that the
district court abused its discretion by “failing to advise [him] that he should
amend his complaint” a second time. 6 As his elliptical phrasing reveals,
Haskett did not ask the district court for leave to re-amend his complaint. Nor
does he cite additional facts that he might have introduced. Therefore, the
district court did not abuse its discretion in failing to invite a second
amendment, Haskett’s pro se status notwithstanding. 7
       Second, although Haskett sued several defendants, only his claims
against TSD itself are preserved on appeal. In his reply brief, Haskett appears
to explicitly waive what he terms his “Respondeat Superior claims” insofar as
they are separate from his claim against TSD. Presumably, this refers to his



was an employer, Appellant failed to state a plausible claim for age discrimination under the
ADEA.” To be sure, we could affirm the dismissal anyway if we found that TSD was not an
“employer” for purposes of Haskett’s suit, rendering that suit legally unsupported. See Hosein
v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006) (“We may affirm a district court’s Rule 12(b)(6)
dismissal on any grounds supported by the record.”). However, we find the record
insufficiently developed to allow such a fact-intensive determination, especially since TSD
did not argue the “independent contractor” issue below or in this court.
        5 Raj v. Louisiana State Univ., 714 F.3d 322, 329-30 (5th Cir. 2013).
        6 Haskett also claims, as another point of purported error, that the district court failed

to liberally construe his pro se pleadings. Even if so, this is not reversible error per se, but
rather informs our analysis of whether dismissal was proper.
        7 See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (“Brewster [a pro se litigant]

gives no indication that he did not plead his best case in his complaint and more definite
statement. He does not state any material facts he would have included in an amended
complaint. Brewster has therefore failed to show that the district court abused its discretion
by dismissing his complaint without granting him leave to amend.” (citations and footnote
omitted)).
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                                       No. 14-41459
claims against the unnamed employee and client defendants. In any event,
Haskett’s briefing focuses exclusively on TSD and does not mention the
unnamed defendants, nor argue that his claim against them was improperly
dismissed. Therefore, only Haskett’s claim against TSD itself is live, and the
district court’s dismissal as to the other defendants stands. 8
       Finally, TSD argues that Haskett’s request below for a declaratory
judgment was properly dismissed in any event because such a request does not
amount to an independent cause of action. 9 In his amended complaint, Haskett
presented a request for declaratory judgment both as a “second claim for relief”
and in a list of desired remedies at the end of the complaint. His reply brief
appears to clarify that the request was derivative of his main ADEA claim, i.e.,
that it was remedial in nature. Thus, we need not address whether it could or
should have survived as a separate claim for relief.
                                              III
       We now consider whether Haskett’s complaint sufficiently stated a
claim. We have not specified a distinct pleading threshold for ADEA claims,
and the Supreme Court has affirmed that none exists. 10 Thus, the typical Rule
12(b)(6) standard applies: a complaint must “plead ‘enough facts to state a
claim to relief that is plausible on its face.’” 11



       8  See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all
issues not raised and argued in its initial brief on appeal.”).
        9 See, e.g., Val-Com Acquisitions Trust v. CitiMortgage, Inc., 421 F. App’x 398, 400-01

(5th Cir. 2011) (unpublished) (“In a declaratory judgment action, the parties litigate the
underlying claim, and the declaratory judgment is merely a form of relief that the court may
grant.”).
        10 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (in an employment

discrimination case under the ADEA and Title VII, rejecting a “heightened pleading standard
in employment discrimination cases”); see, e.g., Leal v. McHugh, 731 F.3d 405, 410, 413 (5th
Cir. 2013) (relying on general principles of notice pleading, as set forth in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), in reversing the
district court’s Rule 12(b)(6) dismissal of ADEA claims).
        11 Leal, 731 F.3d at 410 (quoting Twombly, 550 U.S. at 570).

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       “[A] plaintiff need not make out a prima facie case of discrimination in
order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim”; 12
however, “the elements of a prima facie case are helpful . . . in framing what
constitutes an ADEA claim.” 13 Haskett stated a prima facie case against TSD
because he alleged in his complaint that “(1) he belongs to a protected class; (2)
he applied for and was qualified for a position that was seeking applicants; (3)
he was rejected; and (4) following his rejection, another applicant not of the
protected class was hired.” 14 In another recent ADEA case, Wooten, we found
that an ADEA complaint satisfied Rule 8 (from which Rule 12(b)(6)’s
plausibility requirement derives) 15 by alleging only that the complainant had
worked for a company, that he filed an age discrimination charge against the
company, and that the company constructively discharged him in response,
causing him harm. 16 If anything, Haskett’s filing was more factually detailed
than the bare-bones complaint we accepted in Wooten. We find that his




       12  Raj, 714 F.3d at 331 (Title VII race discrimination case); see Flores v. Select Energy
Servs., L.L.C., 486 F. App’x 429, 432 (5th Cir. 2012) (unpublished) (applying this rule in an
ADEA case).
        13 Flores, 486 F. App’x at 432.
        14 Haas v. ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir. 1999).
        15 Twombly, 550 U.S. at 557 (Rule 12(b)(6)’s plausibility requirement derives from the

“threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘show
that the pleader is entitled to relief.’”) (alteration omitted); Gen. Elec. Capital Corp. v. Posey,
415 F.3d 391, 396-97 (5th Cir. 2005) (similar). Wooten addressed whether the complaint at
issue sufficed to support a default judgment, not a Rule 12 motion to dismiss. Of course,
dismissal may still be warranted under Rule 12(b)(6), despite compliance with Rule 8, if the
complaint’s factual allegations could not possibly give rise to a right to relief, but TSD focused
below and in this court on the factual sufficiency of Haskett’s complaint. See supra note 4;
Bank of Abbeville & Trust Co. v. Commonwealth Land Title Ins. Co., 201 F. App’x 988, 990
(5th Cir. 2006) (unpublished) (“[M]ere compliance with Rule 8 does not itself immunize the
complaint against a motion to dismiss.”).
        16 Wooten v. McDonald Transit Associates, Inc., 788 F.3d 490, 498 (5th Cir. 2015). The

Wooten complaint did not specify the nature of the company’s allegedly unlawful actions, but
stated only that it “discriminated and retaliated against [Wooten], and created a hostile work
environment, until such time that [Wooten] was constructively discharged.” Id.
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complaint gave TSD “fair notice” of his age discrimination claim, and therefore
met Rule 12(b)(6)’s factual sufficiency requirement. 17
       In arguing otherwise, TSD relies heavily on its response to Haskett’s
EEOC charge. In that response, TSD indicated that 1) its records indicated
that Haskett only applied for one opening; 2) the opening was for a project for
which the company ultimately hired “8-10” landmen, three of whom were over
the age of 50; and 3) Haskett was not hired for the project because he did not
live near the worksite and because his prior work for TSD was unsatisfactory.
       Haskett attached TSD’s response as an exhibit to his complaint, so we
may consider it in ruling on TSD’s motion to dismiss. 18 Nonetheless, at this
stage, it would be perverse to use TSD’s self-serving claims to reject Haskett’s
factual allegations, as we recently recognized in Bosarge. In that case, the
defendants moved for judgment on the pleadings and attached affidavits to
their motion. The plaintiff, Bosarge, then filed an amended complaint which
“borrow[ed] a number of facts from the . . . affidavits, while disputing other
claims made in” them. The defendants claimed that Bosarge had effectively
incorporated these affidavits into his complaint, requiring this court to accept
them as true for purposes of their motion for judgment on the pleadings. We
disagreed:
       [W]hile the affidavits may be considered as an aid to evaluating
       the pleadings, they should not control to the extent that they
       conflict with Bosarge’s allegations. We distinguish these affidavits
       from contracts and medical records attached to a complaint, which
       we have held generally trump contradictory allegations in the
       complaint. Accepting the Defendant-agents’ unilateral statements
       as true would deprive Bosarge of the presumption of truth to which


       17 Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see
Wooten, 788 F.3d at 499-500.
       18 See, e.g., Bosarge v. Mississippi Bureau of Narcotics, 796 F.3d 435, 440 (5th Cir.

2015); Kamps v. Baylor Univ., 592 F. App’x 282, 284 n.1 (5th Cir. 2014), cert. denied, 135 S.
Ct. 2380 (2015) (unpublished).
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       he is entitled at this stage of the litigation. . . . We therefore do not
       accept as true all allegations in the agents’ affidavits[.] 19
       The same logic straightforwardly applies here. 20 Haskett clearly did not
adopt TSD’s allegations to the EEOC as his own for purposes of his complaint. 21
They are therefore still “unilateral” and to the extent they are in tension with
the complaint itself, they cannot control. 22 Rather, any such tension is an
evidentiary issue appropriate for summary judgment analysis. 23

                                       CONCLUSION

       “[A] well-pleaded complaint may proceed even if it strikes a savvy judge
that actual proof of [its allegations] is improbable.” 24 Haskett’s complaint
partially clears the low bar of Rule 12(b)(6). Accordingly, we VACATE the
dismissal of his claim against TSD, AFFIRM the dismissal as to all other
parties, and REMAND for further proceedings consistent with this opinion.




       19 Bosarge, 796 F.3d at 440-41 (5th Cir. 2015); see also id. (citing Scanlan v. Tex. A &
M Univ., 343 F.3d 533, 537 (5th Cir. 2003), for the proposition that “even where a document
attached to a motion to dismiss is incorporated into the pleadings [including the complaint],
the district court still must ‘construe the plaintiffs’ factual allegations in the light most
favorable to the plaintiffs’”).
       20 Indeed, Bosarge noted that the analyses for 12(b)(6) dismissal and judgment on the

pleadings were similar. Id.
       21 To the contrary, he disputes them extensively in the complaint.
       22 See also N. Indiana Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449,

455 (7th Cir. 1998) (“To conclude summarily . . . that letters written by [defendants] represent
the truth with regard to the defendants’ intent simply because [plaintiff] attached them to
its complaint for reasons unrelated to their truthfulness is inappropriate. . . . A blanket
adoption rule makes sense in the context of an attached contract or loan agreement because
the contract represents an agreement between two or more parties to which the law binds
them. We are not inclined to apply such a rule in the case of letters written by the opposition
for what could be self-serving purposes.”).
       23 See Lormand v. US Unwired, Inc., 565 F.3d 228, 267 (5th Cir. 2009).
       24 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

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