     Case: 15-41150      Document: 00513796652         Page: 1    Date Filed: 12/14/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 15-41150                                    FILED
                                  Summary Calendar                          December 14, 2016
                                                                               Lyle W. Cayce
PHILLIP DAVID HASKETT,
                                                                                    Clerk


                                                 Plaintiff–Appellant,

v.

CINCO ENERGY MANAGEMENT GROUP, doing business as Cinco Energy
Services; UNKNOWN FORMER EMPLOYEE OF CINCO ENERGY
MANAGEMENT GROUP #1; UNKNOWN CLIENTS OF CINCO #1 - #9;
JOHN DOUGHS #1 - #9; CINCO ENERGY MANAGEMENT SERVICES,
doing business as Cinco Energy Services,

                                                 Defendants–Appellees.


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 3:14-CV-280


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Phillip David Haskett appeals the dismissal of his complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. He has waived review of the dismissal of his



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-41150     Document: 00513796652     Page: 2     Date Filed: 12/14/2016


                                  No. 15-41150

claims for a declaratory judgment, intentional interference with employment
opportunities, and respondeat superior by failing to challenge their dismissal
on appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).    This portion of the district court’s judgment is
affirmed.
      The district court erred in dismissing the claim for failure to hire under
the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. See Leal v.
McHugh, 731 F.3d 405, 410 (5th Cir. 2013). Haskett alleged facts that would
state a prima facie case of age discrimination: (1) he was over forty and
belonged to the protected class, (2) he applied for positions for which he was
qualified, (3) he was not hired, and (4) after failing to hire him, Cinco hired
other individuals not part of the protected class. See Medina v. Ramsey Steel
Co., 238 F.3d 674, 680-81 (5th Cir. 2001) (addressing a failure to promote
claim). Haskett’s allegation that sixty-five percent of Cinco employees were
under the age of forty, standing alone, would be insufficient to demonstrate the
fourth element of his prima facie case. See, e.g., Taylor v. United Parcel Serv.,
Inc., 554 F.3d 510, 523 (5th Cir. 2008). But he also alleged that Cinco admitted
to a third party that it filled the positions Haskett applied for with individuals
under the age of forty.
      Haskett’s   allegations,   liberally   construed,    plausibly   permit   the
reasonable inferences that he applied for landmen positions for which he was
qualified, younger persons were hired to fill these positions, and Cinco did not
hire him because of his age. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
This portion of the district court’s judgment is vacated. Whether the district
court abused its discretion by failing to grant Haskett leave to file a second
amended complaint is moot in light of this conclusion. See Pub. Emps.’ Ret.
Sys. of Miss., v. Amedisys, Inc., 769 F.3d 313, 326 (5th Cir. 2014). Finally,



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    Case: 15-41150   Document: 00513796652   Page: 3   Date Filed: 12/14/2016


                              No. 15-41150

Haskett’s motion to strike is denied; we have not relied on the disputed
pleading.
     AFFIRMED in part; VACATED in part; and REMANDED for further
proceedings consistent with this opinion. Motion DENIED.




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