Lively v. WAFRA Investment Advisory Group, Inc.

Background

Francis P. Lively, described as a real estate executive, sued his former employer, WAFRA Investment Advisory Group, Inc., and WAFRA’s Chief Executive Officer, Fawaz Al-Mubaraki. Lively alleged that WAFRA discriminated against him because of his age and retaliated against him after he complained about Al-Mubaraki’s alleged age-related comments, in violation of the Age Discrimination in Employment Act of 1967. He also asserted discrimination claims under state and city law and state-law claims for interference with prospective business or contractual relations, defamation per se, negligence, unjust enrichment, and quantum meruit.

Lively had worked at WAFRA for more than twenty-one years and was sixty-four when he filed the complaint. WAFRA suspended him without pay and terminated him for cause in April 2018 after allegations of sexual harassment and discrimination were made against him by another employee. Lively alleged that those allegations were manufactured to conceal age discrimination and that WAFRA was trying to remove older employees. He identified one specific alleged age-related comment, made at an after-hours gathering on November 13, 2017, that WAFRA needed to replace older employees like him with younger employees like his son. He said he reported the comments to WAFRA personnel but that no action was taken.

WAFRA maintained that it terminated Lively because of his alleged violation of workplace policies and its Code of Ethics. The materials considered by the court included a recorded conversation, notes, and other documents concerning Lively’s interactions with the employee who made the allegations against him. Lively also alleged that WAFRA later made false statements about him, harmed his employment prospects, interfered with potential business relationships, and refused to recognize his claimed partnership or profit-sharing interests.

Motion and legal standard

The defendants moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). That motion allows judgment when the material facts are undisputed and the pleadings show that the moving party is entitled to judgment as a matter of law. The court applied the same standard used for a motion to dismiss for failure to state a claim: it generally accepted factual allegations as true and drew reasonable inferences for the nonmoving party, but did not accept legal conclusions or allegations contradicted by more specific allegations or documents properly considered with the pleadings.

Age-discrimination claim

The court held that Lively had not plausibly alleged that age was the “but-for” cause of his termination. His allegation that WAFRA had a campaign to remove older executives lacked specific information about the other executives’ ages, termination dates, or reasons for their departures. The court treated the single specific age-related comment as too remote from the termination—nearly six months earlier—to support a sufficient inference of causation. The court also found that the alleged sexual harassment and discrimination complaints provided a stronger connection to the termination and that Lively’s replacement was sixty-six, two years older than Lively. The defendants’ motion for judgment on the pleadings on the ADEA age-discrimination claim was granted.

Retaliation claim

The court also held that Lively had not plausibly alleged that his termination would not have occurred without a retaliatory motive. The complaint offered a conclusory assertion that WAFRA used a false accusation as an opportunity to fire him after he reported the alleged age-related misconduct, but it did not provide direct evidence of retaliatory intent. The nearly six-month gap between his report and termination, along with intervening praise for his work, further weakened the claimed connection. The defendants’ motion for judgment on the pleadings on the ADEA retaliation claim was granted.

State and city claims

After the court’s disposition of the federal claims, it declined to exercise supplemental jurisdiction over Lively’s remaining state and city claims under 28 U.S.C. § 1367(c)(3). The opinion does not state that those claims were decided on their merits.

Leave to amend and disposition

Lively alternatively requested permission to amend his complaint. The court found that the complaint did not suggest an inadequately or inartfully pleaded claim that could be reframed and that Lively had not identified new material he wished to add. The court therefore denied his request to replead as futile.

The court granted the defendants’ motion for judgment on the pleadings, denied Lively’s motion for leave to amend, directed the clerk to close the motion at Docket Number 39, and directed the clerk to close the case. Judge James Oetken signed the opinion and order.