     Case: 12-40069        Document: 00512387418        Page: 1    Date Filed: 09/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                             FILED
                                                                       September 26, 2013

                                       No. 12-40069                         Lyle W. Cayce
                                                                                 Clerk

GEORGE LEAL; JOHN M. LOZANO,

                                                  Plaintiffs-Appellants,
v.

JOHN MCHUGH, Secretary, Department of the Army,

                                                  Defendant-Appellee.



                    Appeal from the United States District Court
                         for the Southern District of Texas


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Plaintiffs-Appellants, George Leal and John M. Lozano, appeal the district
court judgment granting Defendant-Appellee John McHugh’s1 motion to dismiss
Appellants’ age discrimination claims and Leal’s retaliation claim, as well as the
court’s denial of their request for leave to amend their complaint. We AFFIRM
IN PART and REVERSE AND REMAND IN PART.
                  I. FACTUAL AND PROCEDURAL HISTORY
      Appellants allege the following facts in their First Amended Complaint:2


      1
          In his capacity as the Secretary of the Department of the Army.
      2
       While Appellants’ brief asserts additional facts not contained in the First Amended
Complaint, we do not consider those facts herein. See Randall D. Wolcott, M.D., P.A. v.
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       Plaintiff-Appellants John Lozano (“Lozano”), born in 1947, and George
Leal (“Leal”), born in 1953, (collectively “Appellants”), worked for the Facilities,
Engineering, and Management Division (“FEMD”) at the Corpus Christi Army
Depot (“CCAD”).
       Lozano began working for the CCAD in 1985, and acquired over twenty
years of experience as an Engineering Technician, Project Manager, Quality
Assurance Inspector, and Construction Officer Representative. Lozano also
volunteered as a Construction Representative Technician with the Army Corps
of Engineers for five years in Kuwait. He has received accolades such as “the
most productive employee in the [FEMD].”
       Leal began working for the CCAD in 1986. He worked as a Material
Maintenance Management Specialist, and was promoted to Engineering
Technician. From 2007 to the present, Leal has worked as a Contractor Officer
Representative for contracts relating to various facilities, including elevators,
solid waste disposal, grounds maintenance, and eyewash stations/showers at the
CCAD. Leal has received top ratings for performance since 1992, except for one
year when he received the second-highest rating.
       In 2009, CCAD Facilities and Engineering announced two new positions
at the GS-12 level.3 Lozano and Leal applied for the positions. Both applicants
were omitted from the initial selection list in September 2009, but were added
to the selection list in October 2009. The selecting official, Michael Webb,
initially made selections after the first list was issued but before the second list
was issued. Webb did not immediately announce these selections, however.


Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (“Generally, a court ruling on a 12(b)(6) motion may
rely on the complaint, its proper attachments, documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” ) (internal quotation marks
and citation omitted)).
       3
        The Complaint does not identify the title of the positions, which is “Construction
Representative.”

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                                        No. 12-40069

       Webb selected John Clay and Rudy Solis to fill the two new positions.
Solis is substantially younger than Appellants.4 Solis also had a close personal
relationship with Webb’s supervisor, Luis Salinas, who was the Chief of the
FEMD. Salinas expressed a need for “new blood” in his department. Salinas
denies involvement in the selection of Solis, although this denial is contradicted
by Salinas’s testimony during the equal employment opportunity (“EEO”)
investigation. Webb also stated that Salinas told Webb to select Solis. Prior to
his selection, Solis told his co-workers that he would be selected.
       In their filings below, Appellants have asserted that the CCAD’s failure
to follow its own procedural rules for making selections–i.e., by choosing Solis
and Clay before the second candidate list was issued–constitutes circumstantial
evidence of discrimination. Appellants have also argued they are “clearly better
qualified” than Solis and, thus, this finding supports an inference of pretext.
       Additionally, Leal alleges that Salinas was his supervisor in 2000 when
Leal filed a retaliation claim.           Leal also previously participated in EEO
complaints on behalf of his co-workers as recently as 2006. Accordingly, Leal
alleges that he was not selected for the Construction Representative position due
to his prior EEO activity, in addition to age discrimination.
       Following their non-selection, Appellants filed administrative complaints
alleging that they were discriminated against based on age and, in the case of
Leal, based on his protected EEO activity.5                    An investigator with the

       4
          The complaint does not allege John Clay’s approximate age, but Appellants have
conceded that he is approximately the same age as them. Thus, instead of challenging Clay’s
selection as discriminatory, Appellants have suggested that the CCAD’s hiring of Clay could
have been to establish “cover” for the wrongful hiring of Solis and hence, could constitute
evidence of pretext. We need not address this allegation in assessing the sufficiency of
Appellants’ complaint since it is not contained therein.
       5
          Under the Age Discrimination in Employment Act (“ADEA”), a federal sector
employee or job applicant complaining of age discrimination has two options: he may either
bring a claim directly in federal court as long as, within 180 days of the alleged discriminatory
act, he provides the Equal Employment Opportunity Commission (“EEOC”) with notice of his

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                                        No. 12-40069

Department of Defense’s Civilian Personnel Management Division investigated
Appellants’ complaints. [See, e.g., R. 77-90]. Subsequently, an Administrative
Law Judge (“ALJ”) at the Equal Employment Opportunity Commission
(“EEOC”) conducted a hearing on Appellants’ complaints on April 13, 2011. [R.
91-102]. The ALJ issued a decision finding no discrimination, which the agency
adopted on May 5, 2011. Appellants subsequently alleged in their complaint
before the district court that the ALJ did not address the many inconsistencies
in witness testimony or the “subtle pressure applied to one of the witnesses”
during the EEO investigation.
       Appellants filed suit in federal court on August 2, 2011, alleging that they
were not hired for the two newly-created positions because of their age, in
violation of the ADEA, 29 U.S.C. § 621 et seq. Leal also alleged that his non-
selection was retaliation for his prior protected activity, in violation of Title VII
of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e et seq. On October 18,
2011, Appellee moved to dismiss the complaint or, alternatively, for summary
judgment. Appellants amended their complaint on October 26, 2011 and also
opposed Appellee’s motions.
       On November 4, 2011, the district court dismissed Appellants’ claims
under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”).                            On
November 14, 2011, Appellants filed a motion pursuant to Federal Rule of Civil
Procedure 59(e), requesting that the district court reconsider its dismissal of
their complaint. Contained within the motion for reconsideration was also
Appellants’ request for leave to amend their complaint a second time. On


intent to sue at least thirty days before filing suit; or he may invoke the EEOC’s
administrative process, and then sue thereafter if dissatisfied with the results. See 29 U.S.C.
§§ 633a(b), (c); see also 2 Howard C. Eglit, Age Discrimination § 9:1, at 9-3 to 9-4 (2d ed. 2012
& Supp. 2013) (hereinafter “Eglit”). “This scheme differs from that established by the [ADEA]
for nonfederal employment situations.” Eglit § 9:1, at 9-3 to 9-4; see also 29 U.S.C. § 626(d)
(requiring all nonfederal complainants to first file a complaint with the EEOC, as well as with
any applicable state agency before bringing suit in court at least sixty days thereafter).

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December 20, 2011, the district court vacated its prior dismissal order and
substituted it with the court’s opinion and order on Appellants’ Rule 59(e)
motion for reconsideration.
      In the December 20 opinion, the district court granted Appellee’s motion
to dismiss Appellants’ complaint, ruling that Appellants’ allegations regarding
Solis’s personal relationship with Salinas “defeat[ed]” their age discrimination
claims, and that Appellants “asserted a mixed-motive case, which is prohibited”
under Gross v. FBL Financial Services, Inc., 557 U.S. 176 (2009). See generally
id. at 180 (holding that ADEA plaintiffs must prove that age was the “but-for
cause” of, rather than a “motivating factor” in, the adverse employment action).
The district court further ruled that Leal’s retaliation claim failed to
demonstrate a plausible causal connection between his protected activity and his
non-selection for the new position, since his latest alleged protected activity was
in 2006 and the non-selection occurred three years later, in 2009. The district
court also denied Appellants’ request for leave to amend their complaint.
Regarding this latter request, the court concluded that the denial was warranted
due to Appellants’ “fatal ‘mixed motive’ allegation of the ‘personal relationship’
between Solis and Salinas” and Appellants’ failure to demonstrate how any
amendment would not be futile. Appellants timely appealed the district court’s
December 20 order.
                               II. DISCUSSION
      Appellants challenge the district court’s dismissal of their age
discrimination claims and Leal’s retaliation claim and the court’s denial of their
request for leave to amend their complaint. We address each set of challenges
in turn.
A.    Appellants’ Age Discrimination Claims
      1.    Standard of Review



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                                  No. 12-40069

      We review de novo the district court’s grant of a motion to dismiss for
failure to state a claim under Rule 12(b)(6). Sullivan v. Leor Energy, L.L.C., 600
F.3d 542, 546 (5th Cir. 2010) (citation omitted). This court construes facts in the
light most favorable to the nonmoving party, “as a motion to dismiss under
12(b)(6) ‘is viewed with disfavor and is rarely granted.’” Turner v. Pleasant, 663
F.3d 770, 775 (5th Cir. 2011) (citation omitted). Dismissal is appropriate only
if the complaint fails to plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Yet,
the complaint must allege enough facts to move the claim “across the line from
conceivable to plausible.” Id. Determining whether the plausibility standard
has been met is “a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) (citation omitted).
      2.    Applicable Law
      The ADEA prohibits employment discrimination in both the private and
local government sectors, and in federal employment. See 29 U.S.C. § 623(a)
(private and local government sectors, or “nonfederal sectors”); id. § 633a
(federal sector). Under the relevant provision pertaining to the nonfederal
sectors, “[i]t shall be unlawful for an employer to fail or refuse to hire . . . any
individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” Id. § 623(a)(1).    In contrast to § 623(a)’s prohibition of
employment decisions “because of such individual’s age,” the federal sector
provision states that “all personnel decisions affecting employees or applicants
for employment [with various federal agencies] who are at least 40 years of age
. . . shall be made free from any discrimination based on age.” Id. § 633a(a).
      To establish a prima facie case of discriminatory treatment based on age,
Appellants are required to prove: 1) “they are within the protected class”; 2)

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                                  No. 12-40069

“they are qualified for the position”; 3) “they suffered an adverse employment
decision”; and 4) “they were replaced by someone younger or treated less
favorably than similarly situated younger employees (i.e., suffered from
disparate treatment because of membership in the protected class).” Smith v.
City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003) (citations omitted).
Under the statute, the protected class includes individuals who are at least forty
years old. See 29 U.S.C. §§ 631(a), 633a(a). “Because the ADEA prohibits
discrimination on the basis of age and not class membership, the fact that a
replacement is substantially younger than the plaintiff is a far more reliable
indicator of age discrimination than is the fact that the plaintiff was replaced by
someone outside the protected class.” O’Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308, 313 (1996).
      In Gross, the Supreme Court held that a plaintiff alleging age
discrimination under the ADEA has the burden of proving that age was the “but-
for cause” of the adverse employment action, such as the discharge or failure to
hire. See 557 U.S. at 176, 180 (quotation marks omitted). The Court interpreted
the ADEA’s statutory language pertaining to the nonfederal sectors, which
proscribes discrimination “because of such individual’s age.” Id. at 176 (citing
29 U.S.C. § 623(a)(1)) (emphasis in original). The Court concluded that the
ordinary meaning of “because of,” based on prior precedent, is that a given basis
is the “but-for cause,” meaning that “age was the ‘reason’ that the employer
decided to act.” Id. (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)
see also Hazen, 507 U.S. at 610 (“Whatever the employer’s decisionmaking
process, a disparate treatment claim cannot succeed unless the employee’s
protected trait actually played a role in that process and had a determinative
influence on the outcome.” (emphasis added))).
      Gross contrasted the ADEA with Title VII, which requires that a plaintiff
prove that the prohibited basis–i.e., race, color, religion, sex, or national

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origin–was a “motivating factor” in the challenged employment decision. Id. at
174 (citing 42 U.S.C. § 2000e–2(m) (stating that “an unlawful employment
practice is established when the complaining party demonstrates that race,
color, religion, sex, or national origin was a motivating factor for any
employment practice, even though other factors also motivated the practice”))
(other citations omitted).   When a plaintiff asserts multiple bases for an
employer’s decision, i.e., where “other factors motivated the [employment]
practice,” 42 U.S.C. § 2000e–2(m), those actions are known as “mixed-motive”
cases. See Gross, 557 U.S. at 171 (defining “mixed-motive” cases as “when an
employee alleges that he suffered an adverse employment action because of both
permissible and impermissible considerations” (citation omitted)). The Gross
Court observed, “[u]nlike Title VII, the ADEA’s text does not provide that a
plaintiff may establish discrimination by showing that age was simply a
motivating factor.” Id. at 174. Accordingly, the “but-for” standard of proof is
more demanding than the “motivating factor” standard of proof. As the question
presented to the Gross Court was whether a plaintiff must present direct
evidence of discrimination in order to obtain a mixed-motives jury instruction,
the Court concluded that “a mixed-motives jury instruction is never proper in an
ADEA case.” Id. at 169-70.
      Gross did not discuss the ADEA’s federal sector provision, see Gross, 557
U.S. at 176, and neither we nor the Supreme Court has addressed whether Gross
applies to that provision. The D.C. Circuit has held, however, that the but-for
standard enunciated in Gross does not apply to the ADEA’s federal sector
provision. See Ford v. Mabus, 629 F.3d 198, 206 (D.C. Cir. 2010).
      In Ford, the court first compared the statutory language of § 633a to that
of § 623(a). Id. at 205 (citations omitted). The Ford court observed that the
Supreme Court has recognized the “‘sharp[]’ difference” between these two
provisions,” and has described §        633a as a “broad, general ban on

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‘discrimination based on age.’” Id. (alteration in original) (citing Gomez–Perez v.
Potter, 553 U.S. 474, 486, 488 (2008)). The court further highlighted the
Supreme Court’s explanation that “Congress chose not to include the federal
government in the ADEA’s definition of employer and instead ‘deliberately
prescribed a distinct statutory scheme applicable only to the federal sector.’” Id.
(citing Lehman v. Nakshian, 453 U.S. 156, 166 (1981)). Ford also noted that the
D.C. Circuit itself has observed in prior cases that “Congress used sweeping
language when it . . . extended the ADEA to cover federal agency employees.”
Id. (omission in original) (citation omitted). Thus, “[t]o be faithful to that
‘sweeping’ language,” the Ford court held that Gross’s more restrictive burden
of proof, requiring “but-for” causation, does not apply to the broader federal
employment provision. Id. at 205–06. Instead, Ford concluded, “[t]he plaintiff
. . . has the burden to show that age was a factor in the challenged personnel
action.” Id. (emphasis in original).
      3.    Discussion
      As a threshold matter, the parties dispute both whether the federal sector
provision is the applicable statute in this case, and whether the but-for standard
announced in Gross applies to it. We conclude that the federal sector applies
here, and we need not decide whether a federal plaintiff must prove but-for
causation or some lesser standard under § 633a because, as we discuss infra,
Appellants’ complaint states a claim for relief under the heightened, but-for
standard in Gross.
      Appellee contends that Appellants have waived their right to have their
suit analyzed under the ADEA’s federal sector provision.           We note that
Appellants’ complaint broadly identifies that they are bringing claims under “29
U.S.C. § 621, et seq.,” without specific reference to either § 623(a) or § 633a.
Moreover, both below and on appeal, Appellee appears to have conceded that the
federal sector provision is applicable here, for example, by referencing § 633a

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                                       No. 12-40069

and referring to this action as “a federal sector case.” [Appellee Br. at 5 n.1,
18, 20; Def.’s Mot. Dismiss/Mot. Summ. J., R. 50.] See, e.g., Duffie v. United
States, 600 F.3d 362, 378 (5th Cir. 2010) (“In its Motion for Entry of Decisions,
the IRS took the position that enhanced interest under [26 U.S.C. §] 6621(c) was
an affected item, not a partnership item, which is a judicial admission binding
on the IRS.” (citing Martinez v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir.
2001) (holding “[a] judicial admission is a formal concession in the pleadings or
stipulations by a party or counsel that is binding on the party making them”)).
Moreover, the district court also referenced § 633a as the relevant provision of
the ADEA in its dismissal orders, even though it also relied on § 623(a)’s
“because of” language as interpreted in Gross. [See R. 124, 160]. Notably, a
Department of Defense investigator first investigated Appellants’ complaint
prior to the EEOC hearing. Thus, until this appeal, it appears to have been
understood by the parties and the district court that the federal sector provision
applied here, and we conclude the same.6 Appellee’s argument to the contrary
is thus unavailing.
       On the merits, Appellants argue that the district court erred by concluding
that they “have stated a mixed-motive case on which they cannot prevail,” which
Appellants argue was based on the district court’s misreading of Gross. Appellee
contends that Appellants negate their own age discrimination claim by alleging
that Solis was selected for the Construction Representative position both
because he was substantially younger and because he had a close personal
relationship with Appellee’s management, Salinas. Appellee also argues that


       6
        We also note that the federal sector provision provides a federal employee or job
applicant’s exclusive remedy for bringing an age discrimination suit. See Eglit § 9:2, at 9-17
(noting that federal employees and job applicants complaining of age discrimination in
employment “cannot look to . . . federal statutes [other than the ADEA] for such relief”; “[n]or
may such an individual base a claim on those provisions of the ADEA that deal with nonfederal
employees.” (emphasis added) (citations omitted)).

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Appellants’ decision to file a single, “unified complaint” precludes them from
prevailing on their claims because both could not be selected for reinstatement
to Solis’s position even if they prevailed.
      We conclude, however, that Appellants have stated a claim for which relief
may be granted under 29 U.S.C. § 633a. While the First Amended Complaint
contains few facts, Appellants successfully allege that: 1) Appellants are within
the protected class under the ADEA; 2) Appellants were qualified for the two
newly-created positions; 3) Appellants were not selected for the positions; 4) a
“substantially younger” employee, Solis, was selected for one of the positions
instead; and 5) one of the officials with decision-making authority over Solis’s
selection, Salinas, said that the department needed “new blood.” See, e.g.,
Hawkin v. Frank Gillman Pontiac, 102 F. App’x 394, 398 (5th Cir. 2004) (per
curiam) (unpublished) (finding direct evidence of intentional age discrimination
based on a supervisor’s statement that the company wanted “new blood,”
meaning, “you know, young people”). In addition to the foregoing facts in the
complaint, Appellants have also asserted that the CCAD’s failure to follow its
own procedural rules when selecting Solis constitutes circumstantial evidence
of discrimination, and that because they were “clearly better qualified” than
Solis, this finding would support an inference of pretext.             Accepting the
well-pleaded facts as true and considering them, and the inferences to be drawn
therefrom, in the light most favorable to Appellants, these admittedly bare
allegations sufficiently state a plausible claim for age discrimination to survive
a motion to dismiss.7 See Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and unlikely.’” (citation


      7
         Whether Appellants’ allegations would survive Appellee’s alternative motion for
summary judgment based on these facts is an altogether separate issue, which we need not
reach since the district court did not rule on this alternative motion.

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omitted)); cf. Iqbal, 556 U.S. at 681 (“To be clear, we do not reject [the] bald
allegations on the ground that they are unrealistic or nonsensical. We do not so
characterize them any more than the Court in Twombly rejected the plaintiffs’
. . . allegation . . . because it thought that claim too chimerical to be maintained.”
(citation omitted)).
      The posture of Appellants’ case is not unlike a case that another panel of
this court decided in Flores v. Select Energy Services, 486 F. App’x 429 (5th Cir.
2012) (per curiam) (unpublished). In Flores, the panel examined the district
court’s dismissal of a complaint alleging age discrimination under Rule 12(b)(6),
and concluded, contrary to the district court, that the plaintiffs had stated a
claim for relief. Id. at 432–33. The employer, Select Energy Services (“Select”),
“maintain[ed] that Flores failed to allege a plausible age discrimination claim,
his only factual allegation being that some younger employees were not fired
after vehicular accidents,” unlike him. Id. at 432. The panel reversed the
district court, reasoning as follows:
             When we review the grant of a motion to dismiss, we
             must accept the well-pleaded facts as true and consider
             them in the light most favorable to the plaintiff.
             Applying this standard, we conclude that Flores’s
             factual allegations of (1) being fired immediately after
             his accident, in contrast with similarly situated younger
             employees not being fired after being involved in such
             accidents, and (2) Select’s transmitting an improper job
             reference, are sufficiently plausible to support a claim
             of age discrimination at the Rule 12(b)(6) stage of this
             case.

See id. at 432–33 (citation omitted).
      Further, the fact that Appellants allege both age discrimination and a
personal relationship as reasons for Solis’s selection over them is not fatal to
their complaint at the Rule 12(b)(6) stage, either because of the allegedly
inconsistent factual allegations or because they have pleaded a “mixed-motive”

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suit.       Appellee’s contention that Appellants’ allegation of the personal
relationship between Solis and Salinas “negates” Appellants’ age discrimination
claims is incongruent with the Federal Rules.           See Fed. R. Civ. P. 8(d)
(permitting the pleading of inconsistent statements, claims, and defenses); 5
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1283
(3d ed. 2004 & Supp. 2012) (“Under [Federal Rule 8(d)] a party may include
inconsistent allegations in a pleading’s statement of facts.” (citations omitted));
see, e.g., Henry v. Daytop Vill., Inc., 42 F.3d 89, 95 (2d Cir. 1994) (citations
omitted) (holding that the court could not construe the plaintiff’s claim as an
admission against another or inconsistent claim).            Accordingly, even if
Appellants’ factual allegations were somehow inconsistent–which they are
not–they do not render a right to recovery elusive. Moreover, although selection
based on a personal relationship is not actionable, non-actionable and actionable
claims may be pled together in one complaint without rendering it susceptible
to dismissal. So long as the complaint states a plausible claim for relief on the
actionable claim, that claim will withstand a motion to dismiss.
        As to the multiple alleged bases for the adverse employment actions here,
this feature, too, is not fatal to the complaint at this stage of the case. It simply
will behoove Appellants–if subject to Gross’s heightened evidentiary burden
here–to prove at summary judgment or trial that, but-for their age, they would
have been selected.8 For example, we recently vacated and remanded a district
court’s summary judgment in favor of an employer in an enforcement action by
the EEOC, which alleged both age and disability as bases for the employer’s
decision not to hire the complainant. See EEOC v. DynMcDermott Petroleum
Operations, Co. --- F. App’x --- , No. 12-40424, 2013 WL 3855553, at *10 (5th Cir.
July 26, 2013) (per curiam) (unpublished). In DynMcDermott, the complainant

        8
        We decline to decide what standard of proof applies to an age discrimination
employment act claim brought under the ADEA’s Federal Sector Provision after Gross.

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alleged that the employer failed to hire him both because he was too old and
because he would have to tend to his wife who had cancer, in violation of the
ADEA and the Americans with Disabilities Act, respectively. See id. (citations
omitted). We remanded the case for trial, holding “the evidence is such that a
reasonable jury could return a verdict for the EEOC, finding that but for [the
complainant’s] age and disabled wife, [the defendant] would have hired him.”
Id. (emphasis added).          Thus, at the Rule 12(b)(6) stage, Appellants’ age
discrimination claims here can certainly proceed.
       By dismissing Appellants’ complaint on the basis that they “have asserted
a mixed-motive case, which is prohibited,” the district court misread Gross, since
“but-for cause” does not mean “sole cause.” See Black’s Law Dictionary 250 (9th
ed. 2009) (defining “but-for cause” as “[t]he cause without which the event could
not have occurred–[a]lso termed actual cause; cause in fact; factual cause” ); id.
(defining “sole cause,” in relevant part, as “[t]he only cause that, from a legal
viewpoint, produces an event or injury”); Jones v. Okla. City Pub. Schs., 617 F.3d
1273, 1278 (10th Cir. 2010) (holding that Gross does not place “a heightened
evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause
of the adverse employment action”). In Jones, the Tenth Circuit rejected the
employer’s argument that, under Gross, “‘age must have been the only factor’ in
the employer’s decision-making process.”               Id. at 1277.      The Tenth Circuit
reasoned instead that “an employer may be liable under the ADEA if other
factors contributed to its taking the adverse action, as long as ‘age was the factor
that made a difference.’” Id. at 1277 (citations omitted). We find the reasoning
of Jones persuasive.9 Even Appellee’s brief here asserts, “Gross and its progeny


       9
         Further, other district courts that have considered this issue are in accord with Jones.
See, e.g., Houchen v. Dall. Morning News, Inc., No. 3:08–CV–1251, 2010 WL 1267221, at *3
(N.D. Tex. Apr. 1, 2010) (“While issues of proof may prevent Plaintiffs from prevailing on both
theories, the court does not find the mere fact of pleading sex and age discrimination claims
together a basis for dismissing the age discrimination claims. Moreover, Gross simply states

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                                        No. 12-40069

concern a plaintiff’s ultimate proof burden in ADEA claims, not the pleading
burden.” (emphasis added). Thus, Appellants need not plead that age was the
sole cause of their injury to survive a motion to dismiss.10
       Appellee further argues that Appellants are not entitled to relief because
they are challenging Solis’s selection in a single “unified complaint.” Appellee
asserts that, because there is only one challenged position, both Appellants could
not be reinstated even if they prevailed, since reinstatement with back pay is the
only remedy available to Appellants here. See Smith v. Office of Pers. Mgmt.,
778 F.2d 258, 261 (5th Cir. 1985). Therefore, according to Appellee, “Appellants
simply are not able to state a plausible ADEA claim upon which relief could be
granted as to both of them.”
       We are unpersuaded by Appellee’s argument. First, Appellants’ complaint
seeks the following remedies that are applicable to their age discrimination
claims: 1) reinstatement; 2) backpay; and 3) attorney’s fees, litigation expenses
and costs.11 If Appellants prevail, they may be entitled to attorney’s fees, even
if reinstatement and back pay are not feasible. See Eglit § 9:23, at 9-135 to 9-136
(“[M]ost courts . . . are in agreement that a prevailing plaintiff in a suit brought
under the ADEA can be awarded attorney’s fees and costs against the federal


that it is improper for a court to submit a mixed-motives instruction to the jury in an ADEA
case.”); Woldetadik v. 7-Eleven, Inc., 881 F. Supp. 2d 738, 742 (N.D. Tex. 2012) (holding that
“the Court in Gross did not in any way restrict a plaintiff’s ability to plead inconsistent claims
and defenses. . . . [That] Plaintiff ultimately may not be able to recover on both his age
discrimination claim and national origin claim is quite beside the point at this juncture of the
lawsuit.”).
       10
         Lower court cases that have held to the contrary are unpersuasive. See, e.g., Culver
v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1270, 1271–72 (N.D. Ala. 2009) (“The only logical
inference to be drawn from Gross is that an employee cannot claim that age is a motive for the
employer’s adverse conduct and simultaneously claim that there was any other proscribed
motive involved.”). (emphasis in original).
       11
        Several other of the remedies Appellants seek are inapplicable to federal employees
suing under the ADEA, such as loss of fringe benefits, compensatory damages, and punitive
damages. Cf. 29 C.F.R. § 1614.501.

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                                   No. 12-40069

government attributable to the suit itself (as opposed to the administrative
proceedings preceding the lawsuit.)” (collecting cases)); see also 29 C.F.R. §
1614.501 (enumerating the remedies available to a successful, federal employees
and job applicants under the ADEA). For this reason alone, we disagree with
Appellee that Appellants have not stated a claim for relief. Additionally, courts
have held that, in addition to reinstatement and back pay, the judge (rather
than the jury) has the discretion to consider whether an award of front pay may
be granted to a prevailing plaintiff under the federal sector provision, where
reinstatement is not feasible. See Eglit § 9:22, 9-131 (“If an order directing the
hiring or reinstatement of a plaintiff is not feasible . . . , a court may grant the
prevailing plaintiff damages in lieu of reinstatement, also known as front pay.”
(citation omitted)).
      Even if Appellee’s argument was meritorious, it still would be unclear at
this early stage of the case which Appellant would be entitled to relief, Leal or
Lozano. Thus, at a minimum, the case would need to proceed for the court to
determine this question.     The one case that Appellee relies upon for the
proposition that “only one Appellant could receive the sole remedy of placement
in the contested job” entailed the court conducting an evidentiary hearing to
determine which of two plaintiffs vying for one position would have prevailed in
the absence of the discriminatory selection. See generally Meredith v. Beech
Aircraft Corp., No. 89-1592, 1995 WL 333123 (D. Kan. 1995) (unpublished).
Even the district court here stated that it was “unwilling to find that all of
Plaintiffs’ claims are eliminated by the mere fact that one of two positions was
filled by someone of unspecified age [Solis].” For these reasons, we reject
Appellee’s argument that the alleged unavailability of a remedy renders
Appellants’ complaint defective.
      Accordingly, we REVERSE the district court’s dismissal of Appellants’ age
discrimination claims, and REMAND for further proceedings.

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                                   No. 12-40069

B.     Leal’s Retaliation Claim
       We also review the district court’s dismissal of Leal’s retaliation claim de
novo. Sullivan, 600 F.3d at 546 (citation omitted).
       To state a claim for retaliation in violation of Title VII, a plaintiff must
allege that “(1) he participated in an activity protected by Title VII; (2) his
employer took an adverse employment action against him; and (3) a causal
connection exists between the protected activity and the adverse employment
action.” McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007)
(citations omitted).
       With respect to his retaliation claims, Leal alleged that he “had
participated in prior EEO complaints on behalf of co-workers as recently as
2006” and that “Luis Salinas was [his supervisor] when Mr. Leal filed a claim of
retaliation filed [sic] in 2006.” The district court concluded that “Plaintiff’s
allegations, even if accepted as true, are too attenuated to support a claim of
retaliation.”   We agree that Leal has failed to allege a plausible causal
connection between his alleged EEO protected activity and his non-selection for
a position three to nine years later. See Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273–74 (2001) (explaining that “cases that accept mere temporal
proximity between an employer’s knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to establish a prima facie
case uniformly hold that the temporal proximity must be ‘very close,’” and
holding that an adverse action taken twenty months after protected activity
“suggests, by itself, no causality at all”).
       Accordingly, we AFFIRM the district court’s dismissal of Leal’s retaliation
claim.
C.     Appellants’ Motion for Leave to Amend the Complaint
       We review the district court’s denial of a motion to amend a pleading for
abuse of discretion. Wilson v. Bruks–Klockner, Inc., 602 F.3d 363, 368 (5th Cir.

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                                  No. 12-40069

2010) (citation omitted). “The court should freely give leave [to amend] when
justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Priester v. JP Morgan
Chase Bank, N.A., 708 F.3d 667, 678 (5th Cir. 2013) (citation omitted). “[T]hat
generous standard is tempered by the necessary power of a district court to
manage a case.” Priester, 708 F.3d at 678 (alteration in original) (citation
omitted). In determining whether to grant leave to amend, “the court may
consider factors such as ‘undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of the allowance of the
amendment, [and] futility of the amendment.’” Id. (alteration in original)
(citations omitted).
      We affirm the district court’s denial of Appellants’ request for leave to
amend, albeit on alternative bases than the district court. As discussed, we
conclude that Appellants have pleaded a plausible claim for relief on their age
discrimination claims; thus, Appellants’ pleading multiple bases for the adverse
employment action is not fatal to their case at this early stage. However,
Appellants had the benefit of both an administrative complaint process and an
EEOC hearing before filing suit in federal court; thus, if Appellants had further
facts to plead, we suspect they would have done so in their original or first
amended complaints. Regarding Leal’s retaliation claim, any amendment would
be futile, as a three-year lapse, at best, between the protected activity and the
adverse employment action is too attenuated temporally to state a claim for
relief, even if Salinas was aware of the activity. As Leal’s knowledge of his
protected activity is completely within his control, an additional opportunity to
amend would not aid in developing this claim further.
      Further, Appellants have failed to demonstrate what additional facts they
would plead, as they filed no proposed second amended complaint
contemporaneously with their motion for leave to amend. We therefore conclude

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                                  No. 12-40069

that the district court did not abuse its discretion in denying Appellants’ request
to amend their complaint.
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
Leal’s retaliation claim and denial of Appellants’ request for leave to amend
their complaint. We REVERSE the district court’s dismissal of Appellants’ age
discrimination claims and REMAND for further proceedings.




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