Bartholomew v. Lowe's Home Ctrs.

DIANE BARTHOLOMEW and MICHAEL SHERRY,on behalf of themselves and all others similarly situated Plaintiffs, v. LOWE'S HOME CENTERS, LLC, Defendant.

Case No.: 2:19-cv-695-FtM-38MRM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

January 21, 2020

OPINION AND ORDER¹

Before the Court is Defendant Lowe's Home Centers, LLC's Motion to Dismiss (Doc. 9) and Plaintiffs Diane Bartholomew and Michael Sherry's (collectively "Bartholomew") Amended Response in Opposition (Doc. 27). The parties replied (Doc. 25) and surreplied (Doc. 30). For these reasons, the Court grants and denies in part the Motion to Dismiss (Doc. 9). And the Court grants Bartholomew's Motion for Substitution (Doc. 18) of the proper Lowe's entity.

BACKGROUND

This is an age discrimination case. Bartholomew works at a Lowe's store as a sales associate. At one time, Lowe's paid sales associates the commissions (called "spiffs") that it received from manufacturers for selling their products. So those employees earned an hourly wage plus spiffs. Typically, the people hired as sales associates wereover forty—the age federal law considers an employee an "older worker." In late 2011, Lowe's announced it would stop paying spiffs to sales associates.

When it ended spiff pay in 2012, Lowe's decided to help "offset the loss in variable pay" for sales associates. (Doc. 1 at 4). To accomplish that, Lowe's adopted a scheme to pay sales associates an adjusted amount equal to fifty percent of their spiffs earned in 2011 (the "Allowance"). Certain Lowe's employees who earned spiffs, like "Project Specialists—Exteriors" or ("PSEs"), were exempt—meaning Lowe's kept paying PSEs unadjusted spiffs. According to Lowe's, the point of ending spiff pay was to provide employees with stability. And the company told sales associates they would retain the Allowance arrangement as long as they remained hourly employees at a Lowe's store.

Then, in August 2019, Lowe's announced it would end the Allowance. And in February 2020, all sales associates who receive an Allowance will no longer earn it. After learning of this, Bartholomew sued. The Complaint alleges two counts of age discrimination on a class-wide or collective basis.² Lowe's moves to dismiss for lack of subject-matter jurisdiction and failure to state a claim.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(1) attacks a court's subject-matter jurisdiction. Meyer v. Fay Servicing, LLC, 385 F. Supp. 3d 1235, 1238 (M.D. Fla. 2019). These challenges take two forms—facial and factual. Id. at 1239. On facial attacks, like the one here, "the Court takes the allegations in the complaint as true in deciding the motion." Id. Rule 12(b)(6) motions to dismiss for failure to state a claim have a different focus. A complaint must recite "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This pleading standard "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "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.'" Id. (quoting Twombly, 550 U.S. at 570). A facially plausible claim allows a "court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. So the pleading must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.

DISCUSSION

The Court takes each challenge in turn.

A. Jurisdiction

To start, Lowe's moves to dismiss under Rule 12(b)(1) on two fronts: (1) standing and (2) ripeness.

First, Lowe's challenges Bartholomew's standing. A plaintiff must show standing to invoke federal-court jurisdiction. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). For standing, there must be injury, causation, and redressibility. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). "First and foremost" of that test is an "injury in fact"—the only element at issue. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 (1998).

An injury in fact means "an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. 560 (internal quotation marks, footnote, and citations omitted). "An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal quotation marks and citation omitted). In other words, imminent injuries are those "likely to occur immediately." Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008) (citation omitted).

Mostly, Lowe's says the injury is hypothetical and prospective because the Allowance will not end until next month. Bartholomew disagrees, so does the Court. The alleged injury here is not conjectural or hypothetical. Bartholomew sued in late September 2019 after he received a letter from Lowe's informing him (in no uncertain terms) "on February 1, 2020, the Allowance will be discontinued and you will no longer be eligible to receive the Allowance." (Doc. 27-1). Ending the Allowance is the crux of Bartholomew's case, and that decision will take effect in a few weeks. So the Court concludes Bartholomew showed he has standing for a concrete, particularized, and imminent injury.

Even if there is no standing on that basis, the Complaint also seeks injunctive relief. When seeking injunctive relief, plaintiffs need not "await the consummation of threatened injury to obtain preventative relief." See Browning, 522 F.3d at 1161 (citation omitted). "A party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate—as opposed to a merely conjectural or hypothetical—threat of future injury." J W, by & through, Williams v. Birmingham Bd. of Educ., 904 F.3d 1248,1264 (11th Cir. 2018) (citation omitted). Surely, Bartholomew had standing to enjoin the allegedly discriminatory policy by suing a couple of months before implementation.

Second, Lowe's asserts the case is unripe. There is substantial overlap between standing and ripeness. E.g., Erwin Chemerinsky, Federal Jurisdiction § 2.4.1. (7th ed. 2016). Article III's "ripeness doctrine protects federal courts from engaging in speculation or wasting resources through the review of potential or abstract disputes." Dig. Properties, Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997). At bottom, it "seeks to avoid entangling courts in the hazards of premature adjudication." Id. at 589 (citation omitted). Ultimately, ripeness "goes to whether [a] district court had subject matter jurisdiction to hear the case." Id. at 591 (citation omitted). To determine ripeness, courts look at two factors: (1) "the fitness of the issues for judicial decision"; and (2) "the hardship to the parties of withholding court consideration." Carver Middle Sch. Gay-Straight All. v. Sch. Bd. of Lake Cty., Fla., 842 F.3d 1324, 1329 (11th Cir. 2016) (citation omitted).

Typically, the "hardship prong asks about the costs to the complaining party of delaying review until conditions for deciding the controversy are ideal." Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1291 (11th Cir. 2010) (citation omitted). Whereas, the fitness prong concerns "questions of finality, definiteness, and the extent to which resolution of the challenge depends upon facts that may not yet be sufficiently developed." Id. (internal quotation marks and citation omitted). "[I]t is generally true that the existence of contingencies raises fitness concerns that 'militate in favor of postponing' review." Id. (alterations accepted) (quoting Harrell v. The Fla. Bar, 608 F.3d 1241, 1263 (11th Cir. 2010)). "Yet, to determine whether a future contingency creates fitness (andultimately ripeness) concerns, a court must assess the likelihood that a contingent event will deprive the plaintiff of an injury." Id. at 1291-92. "In other words, it is not merely the existence, but the degree of contingency that is an important barometer of ripeness." Id. at 1292 (alteration accepted, internal quotation marks omitted, and citation omitted).

Like the standing analysis above, this case is ripe for similar reasons. There is nothing hypothetical about this case. Bartholomew challenges the decision to end the Allowance and seeks an injunction to prevent it. While the policy will not be effective for two more weeks, nothing suggests that will not happen (at which point the dispute would be indisputably ripe). So at this point, the Court concludes nothing is likely to deprive Bartholomew of the alleged injury suffered by ending the Allowance.

Because Bartholomew has standing and the case is ripe, there is jurisdiction.³

B. Merits

Next, Lowe's moves to dismiss the Complaint for failure to state a claim.

The Age Discrimination in Employment Act ("ADEA") prohibits employers from discriminating against employees over forty because of their age. 29 U.S.C. §§ 623(a); 631(a). There are two theories of ADEA discrimination (disparate impact and disparate treatment). Smith v. City of Jackson, Miss., 544 U.S. 228, 232, 238 (2005). And the Complaint brings both. The Supreme Court explained the distinction a while back:

Disparate treatment is the most easily understood type of discrimination. The employer simply treats people less favorably than others because of their [age]. Proof of discriminatory motive is critical, although it can in somesituations be inferred from the mere fact of differences in treatment.

Claims that stress disparate impact by contrast involve employment practices that are facially neutral in

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