United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
defendant CNG Logistics, LLC (“CNG”) moves for
judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure on the plaintiff Rodney
Krontz's count one claim of age discrimination. ECF# 25.
The complaint alleges Krontz, a 56-year-old man, was hired as
a truck driver in April of 2017 and terminated in February of
2019 for driving away his truck while it was still attached
to the fuel pump hose. The complaint also asserts a claim of
disability discrimination and alleges factual circumstances
related to his physical condition, medical treatment of the
same, his need for additional surgery, and the employer's
termination of him a month before his scheduled surgery. The
complaint alleges the plaintiff knows of other employees who
also moved their trucks while attached to the fuel pumps but
were not terminated. As for age discrimination, the
plaintiff's complaint alleges no more than this
conclusory paragraph, “Rodney has been subjected to
unlawful discrimination based on his age in violation of the
Age Discrimination in Employment Act for which he is entitled
to damages.” ECF# 1, ¶ 21.
motion for judgment on the pleadings under Rule 12(c) is
treated as a motion to dismiss under Rule 12(b)(6), ”
Atlantic Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000), and the
same standards govern motions under either rule, Ward v.
Utah, 321 F.3d 1263, 1266 (10th Cir. 2003). Looking only
at the contents of the complaint, the court accepts as true
“all well-pleaded factual allegations in a complaint
and view[s] these allegations in the light most favorable to
the plaintiff.” Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009), cert. denied, 558
U.S. 1148 (2010). To withstand such a motion, “a
complaint must contain enough allegations of fact, taken as
true, to state a claim to relief that is plausible on its
face.” Al-Owhali v. Holder, 687 F.3d 1236,
1239 (10th Cir. 2012) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “The plausibility standard
is not akin to a probability requirement, but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (internal
citation and quotation marks omitted). “Thus, in ruling
on a motion to dismiss, a court should disregard all
conclusory statements of law and consider whether the
remaining specific factual allegations, if assumed to be
true, plausibly suggest the defendant is liable.”
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1214 (10th Cir. 2011).
they share governing standards does not mean that Rule 12(c)
motions are the same as Rule 12(b) motions. A motion
proceeding under Rule 12(c) occurs only after the pleadings
are closed and “'is designed to provide a means of
disposing of cases when the material facts are not in dispute
and a judgment on the merits can be achieved by focusing on
the content of the pleadings and any facts of which the court
will take judicial notice.'” Bushnell Corp. v.
ITT Corp., 973 F.Supp. 1276, 1281 (D. Kan. 1997)
(quoting 5A Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 1367, at
509-10 (2d ed. 1990)). “'A motion for judgment on
the pleadings, however, theoretically is directed towards a
determination of the substantive merits of the controversy;
thus, courts are unwilling to grant a judgment under Rule
12(c) unless it is clear that the merits of the controversy
can be fairly and fully decided in this summary
manner.'” Id. at 1281-82 (quoting 5A
Wright & Miller, § 1369, at 532-33).
defendant CNG's 12(c) motion challenges the
plaintiff's complaint not on the grounds of failing to
state a claim for substantive reasons but on the procedural
grounds for failing to allege sufficient facts in the
pleading. This distinction is important as Judge Lungstrum
explains in Bushnell:
Accordingly, in ruling on defendant's motion, the court
will consider whether, with respect to a particular cause of
action, plaintiff fails to state a claim for substantive
reasons or because of what Wright and Miller would term
procedural defects in the pleading. The court stresses that
defendant properly brought its motion under rule 12(c) in
either case. The distinction, however, affects the
court's disposition of the claims at issue here because
plaintiff, in its brief in opposition to the motion, has
requested leave to amend its complaint in the event that it
has failed to state a claim properly.
Where the challenge to a claim is substantive, the motion
more comports with the usual purpose of a motion under rule
12(c), and judgment in favor of defendant is appropriate if
the challenge is successful. In that case, plaintiff loses
not for failure to plead certain facts, but because the facts
that have been alleged, accepted as true for purposes of the
motion, nonetheless do not give rise to liability under a
recognized cause of action.
If, on the other hand, plaintiff does not state a claim with
respect to certain allegations because the procedural
pleading requirements of Fed.R.Civ.P. 8(a) have not been met,
judgment for defendant is not necessarily the proper result
here. Rather, the court concludes in its discretion that
plaintiff should be permitted to cure the procedural
deficiencies by filing an amended complaint.
Bushnell Corp. v. ITT Corp., 973 F.Supp. at 1282.
The court recognizes and applies this distinction here. Thus,
if the plaintiff's pleading is deficient, he will be
allowed to seek leave to file an amended count one to cure
the defective pleading which is the routine followed with
motions filed before the close of pleadings.
Tenth Circuit recently summarized what suffices for pleading
a discrimination claim:
A complaint raising a claim of discrimination does not need
to conclusively establish a prima facie case of
discrimination, but it must contain more than
“‘[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements.'” Khalik [v. United Air
Lines], 671 F.3d  at 1193 [(10th Cir.
2012)](quoting Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “While we do
not mandate the pleading of any specific facts in particular,
” a plaintiff must include enough context and detail to
link the allegedly adverse employment action to a
discriminatory or retaliatory motive with something besides
“sheer speculation.” Id. at 1194.
“[A] plaintiff should have”-and must
plead-“at least some relevant information to make the
claims plausible on their face.” Id. at 1193.
Thus, it is insufficient for a plaintiff to allege, for
instance, that she did not receive an employment benefit that
“similarly situated” employees received.
Hwang v. Kan. State Univ., 753 F.3d 1159, 1164 (10th
Cir. 2014). A plaintiff's assertion that she is
“similarly situated” to other employees is
“just a legal conclusion-and a legal conclusion is
never enough.” Id. Rather, a plaintiff must
allege “some set of facts”-not just legal
conclusions-“that taken together plausibly suggest
differential treatment of similarly situated
employees.” Id. “Pleadings that do not
allow for at least a reasonable inference of the legally
relevant facts are insufficient.” Burnett v. Mortg.
Elec. Registration Sys., Inc., 706 F.3d 1231, 1236 (10th
Cir. 2013) (internal quotation marks omitted).
Bekkem v. Wilkie, 915 F.3d 1258, 1274-75 (10th Cir.
2019). The plaintiff Krontz alleges “at least three
other employees . . . pulled their trucks away while still
attached to the pump” and were not “terminated
for this mistake.” ECF# 1, ¶ 15. The plaintiff
does not allege any additional details showing that these
other drivers do not share his protected age and that the
other drivers were similarly situated in having violated the
same governing policy at the time. Without these additional
allegations, the plaintiff's allegation that the other
drivers were not terminated for doing the same act is
“insufficient to indicate that . . . discrimination was
the plausible, rather than just the possible
reason'” for his termination. Id. at 1275.
Nor does the plaintiff's complaint allege he was
terminated and replaced with someone younger. Like the Tenth
Circuit concluded in Bekkem, the plaintiff's
complaint “fails to give rise to a reasonable inference
of [age] discrimination relating to the” termination.
opposing the defendant's motion, the plaintiff alleges
other circumstances not found in his complaint. The
plaintiff, however, has not asked the court for an
opportunity to amend his complaint to include these
additional allegations but rather impliedly asks the court to
presume they have been alleged and to deny the
defendant's motion for judgment on the pleadings. Because
the defendant's 12(c) motion attacks a pleading
deficiency, the court will employ the routine followed with
12(b)(6) motions and grant the plaintiff an opportunity to
seek leave for amending his complaint to allege additional
details to cure the pleading deficiencies. Thus, the court
shall dismiss the plaintiff's age discrimination count
subject to the plaintiff filing a motion to amend his
complaint to cure this pleading deficiency no later than 20
days after the filing date of this order.
THEREFORE ORDERED that CNG's motion for judgment on the
pleadings (ECF # 25) is granted only insofar as the plaintiff
Rodney Krontz's count one claim of age discrimination is
dismissed subject to the plaintiff filing ...