ORDER – PAGE 1 

 IN THE UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

DAVID AXMANN, § 

 § 

 Plaintiff, § 

 § 

v. § Civil Action No. 3:22-CV-01635-N 

 § 

US ANESTHESIA PARTNERS § 

HOLDINGS, INC., et al., § 

 § 

 Defendants. § 

MEMORANDUM OPINION AND ORDER 

 This Order addresses Defendants U.S. Anesthesia Partners Holdings, Inc., 

(“USAPH”) and U.S. Anesthesia Partners of Texas, P.A.’s (“USAPT”) motion to dismiss 

[20] Plaintiff David Axmann’s First Amended Complaint [16] pursuant to Federal Rule of 

Civil Procedure 12(b)(6). The Court concludes that Axmann has sufficiently stated a 

discrimination claim upon which relief can be granted, but not a plausible retaliation claim. 

Accordingly, the Court grants in part and denies in part the motion. 

I. AXMANN’S EMPLOYMENT BY DEFENDANTS

 Defendants USAPH and USAPT operate a corporate medical practice collectively 

as U.S. Anesthesia Partners (“USAP”). Am. Compl. ¶¶ 2, 5. Axmann, an anesthesiologist, 

became a stockholder of USAPH and employee of USAPT in November 2017 following 

USAP’s acquisition of his previous employer. Id. ¶ 6. Axmann alleges that at the time of 

the acquisition, “most of the anesthesiologists” were over 50 years of age. Id. 

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ORDER – PAGE 2 

 After the acquisition, USAP allegedly implemented a new policy to staff operating 

rooms with nurse anesthetists supervised by non-board-certified anesthesiologists. Id. 

Axmann contends that both are generally younger than other anesthesiologists, and he 

allegedly observed that the policy led to the constructive discharge and discharge of “many 

older anesthesiologists.” Id. USAP also allegedly “inquired in writing of the retirement 

plans of anesthesiologists over 40 years of age.” Id.

 In July 2020, USAP1

 human resources personnel held a meeting with Axmann to 

discuss allegations of poor performance and misconduct. Id. ¶¶ 7, 10. They also informed 

Axmann that he would be required to submit to coaching sessions with Dr. David 

Teegarden, a physician counselor chosen by USAP, as a condition of his continued 

employment. Id. ¶ 8. Two months later, Axmann communicated that he refused to attend 

the sessions unless the review was conducted by “a mutually agreed-upon qualified 

medical professional.” Id. ¶¶ 8, 9. He also allegedly notified USAP that he believed he 

was “being subjected to age-based harassment and other age discrimination.” Id. ¶ 11. 

After a lengthy dispute, USAP ultimately confirmed it would not agree to another 

professional and terminated Axmann without cause in January 2021. Id. ¶¶ 8, 12. 

1

 In some instances, the amended complaint refers to “Defendants” generally rather than 

assigning conduct specifically to USAPT, USAPH, or both. Typically, group pleading is 

disfavored. However, here, where USAPT and USAPH allegedly regularly operate 

collectively as USAP and there is no other, separate defendant, references to “Defendants” 

properly put USAPT and USAPH on notice that Axmann attributes the alleged misconduct 

to their joint operation. See Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 

381, 385–86 (5th Cir. 2017) (affirming ruling that group pleading in the complaint 

nevertheless complied with Rule 8 by providing “minimally adequate notice of Plaintiffs’ 

claims in [the] matter and the bases therefor”). Accordingly, the Court reads Axmann’s 

references to “Defendants” as “USAP.” 

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ORDER – PAGE 3 

 Axmann was over the age of 40 at the time of the events giving rise to this litigation. 

See id. ¶ 5. He argues that Defendants’ requirement that he undergo counseling sessions 

but not asking the same of younger employees constituted age discrimination in violation 

of the Age Discrimination in Employment Act (“ADEA”).2

 Further, he claims that 

Defendants unlawfully retaliated against him by terminating him because he complained 

of age discrimination. Defendants have moved to dismiss. 

II. THE LEGAL STANDARD FOR A RULE 

 12(B)(6) MOTION TO DISMISS

 Upon a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a 

court must determine whether the plaintiff has asserted a legally sufficient claim for relief. 

Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Rule 12(b)(6) requires 

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of 

action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal 

citations omitted). A viable complaint includes “enough facts to state a claim to relief that 

is plausible on its face.” Id. at 570. To meet this standard, a plaintiff must “plead[] factual 

content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court generally 

accepts well-pleaded facts as true and construes the complaint in the light most favorable 

to the plaintiff. Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012). 

 In an employment discrimination case, the plaintiff is not required to establish a 

prima facie case at the pleading stage. Raj v. La. State Univ., 714 F.3d 322, 325 (5th Cir. 

2

 Codified at 29 U.S.C. § 621, et seq.

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ORDER – PAGE 4 

2013). A plaintiff need only allege facts supporting each claim’s “ultimate elements.” 

Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019) (quoting Chhim 

v. Univ. of Texas at Austin, 836 F.3d 467, 470 (5th Cir. 2016)). However, the McDonnell 

Douglas prima facie elements can be “helpful to reference” when determining whether the 

ultimate elements are adequately pled. Cicalese, 924 F.3d at 767 (quoting Chhim, 836 F.3d 

at 470–71); see also Roy v. U.S. Dep’t. of Agric., 115 F. App’x 198, 201 (5th Cir. 2004) 

(citing Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355–56 (5th Cir. 2001)) 

(explaining that McDonnell Douglas is the proper standard in single-plaintiff cases because 

“pattern and practice claims are unavailable outside of a class action”) (internal quotations 

omitted). 

III. THE COURT GRANTS THE MOTION IN PART

A. Axmann Has Plausibly Alleged that Both Defendants Were His Employers 

 Courts determine whether a defendant is an employer for ADEA purposes using the 

“hybrid economic realities / common law control test.” Deal v. State Farm Cty. Mut. Ins. 

Co. of Tex., 5 F.3d 117, 118–19 (5th Cir. 1993). The “most important component” is 

whether the defendant had the “right to control” the plaintiff’s conduct, indicated by power 

over “hiring, firing, supervising, or setting work schedules.” Pequeño v. Univ. of Tex. at 

Brownsville, 718 F. App’x 237, 242 (5th Cir. 2018) (citing id. at 119). Courts also consider 

“who paid the employee’s salary, provided benefits, withheld taxes, and set the terms and 

conditions of employment.” Pequeño, 718 F. App’x at 242 (citing Deal, 5 F.3d at 119). 

 Axmann contends that while USAPT was his direct employer, USAPH also 

exercised control over USAPT’s finances, “operational and human resources aspects,” and 

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ORDER – PAGE 5 

employment decisions. Am. Compl. ¶ 6. Specifically, he explains that USAPH instituted 

specific rate and billing practices affecting anesthesiologist compensation and disciplined, 

hired, and fired anesthesiologists. Id. At this stage, it is enough for Axmann to allege that 

the Defendants were both responsible for specific aspects of the control and management 

of his position. See, e.g., Miller v. Sam Houston State Univ., 986 F.3d 880, 890 (5th Cir. 

2021) (reversing dismissal where plaintiff alleged that two university systems were her 

joint employers because they both oversaw personnel decisions and the granting of tenure). 

Accordingly, the Court concludes that the amended complaint sufficiently alleges both 

USAPT and USAPH as proper defendants. 

B. Axmann Has Plausibly Alleged Age Discrimination 

 To state a plausible age discrimination claim, Axmann must “set forth allegations 

that would enable the court to reasonably infer that the employer took the adverse 

employment action because of [his] age.” Woldetadik v. 7-Eleven, Inc., 881 F. Supp. 2d 

738, 741 (N.D. Tex. 2012) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–12 

(2002)). 

 Treating Defendants’ purported legitimate, nondiscriminatory reason for the 

coaching requirement as outweighing Axmann’s allegations would supplant pleading 

requirements with evidentiary standards. He may later be able to rebut their legitimate, 

nondiscriminatory reason with evidence of pretext. At the pleading stage, where the Court 

must assume that the plaintiff’s allegations are true — even if doubtful in fact — Axmann 

is only required to create the inference that “the employment decision and his protected 

[status] were not wholly unrelated.” Boyd v. Dall. Area Rapid Transit, 2018 WL 7265377, 

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ORDER – PAGE 6 

at *8 (N.D. Tex. 2018) (quoting Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th 

Cir. 2001)).3

 Axmann contends that allegations of his poor performance were “false in all 

events,” that “Defendants did not apply [their] own policies relating to evaluation of 

clinical performance,” and that Defendants demanded counseling based on claims of 

inadequate professional conduct of older anesthesiologists “while not doing so in the case 

of younger anesthesiologists.” Am. Compl. ¶ 9–10. Taking these assertions as true, “an 

employment record that does not support the adverse action” and “an employer’s departure 

from typical policies and procedures” are the type of allegations that support an inference 

of a causal connection. Garvin v. Southwestern Correctional, LLC, 391 F. Supp. 3d 640, 

653 (N.D. Tex. 2019). The Court concludes that Axmann’s “short and plain statement” of 

the facts adequately goes beyond “unsupported speculation” to survive dismissal of his age 

discrimination claim. FED. R. CIV. P. 8(a)(2); see Malik v. Continental Airlines Inc., 305 

F. App’x 165, 170 (5th Cir. 2008). 

C. Axmann Has Not Plausibly Alleged Retaliation 

 To state a retaliation claim under the ADEA, Axmann must allege facts supporting 

a causal link between his protected activity and an adverse employment action. See Boyd, 

2018 WL 7265377, at *6 (collecting cases). In addition to disparate treatment of 

3

 Though Boyd discussed causation in the retaliation context, the same causation standard 

applies to ADEA discrimination and retaliation claims, and ADEA discrimination 

plaintiffs also must plead causation. Leal v. McHugh, 731 F.3d 405, 409–10 (5th Cir. 2013) 

(citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)); English v. Perdue, 777 

F. App’x 94, 99 (5th Cir. 2019) (citing Raj, 714 F.3d at 331; Leal, 731 F.3d at 410–12).

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ORDER – PAGE 7 

comparators, employment records inconsistent with the action, or Defendants’ failure to 

follow policy, a short period of time between an employee’s protected conduct and adverse 

employment action may show a causal connection. See Garvin, 391 F. Supp. 3d at 653. 

 Unlike with his discrimination claim, Axmann has not alleged that other employees 

who did not complain of discrimination were treated more favorably. He also has not 

alleged that terminating him following his complaints violated any specific internal policy. 

The amended complaint offers only temporal proximity of four months4

 in support of the 

retaliation claim. 

 Though a four-month period was previously suggested to be close enough in this 

Circuit, the Fifth Circuit has since followed more recent Supreme Court guidance in 

treating three months as insufficient to show causation. Garcia v. Professional Contract 

Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019) (citing Clark Cnty. Sch. Dist. v. Breeden, 

532 U.S. 268, 273–74 (2001)). Axmann’s termination was too far removed from his 

complaints of discrimination for the Court to properly infer a causal connection from their 

temporal proximity alone. Thus, his retaliation claim warrants dismissal. 

CONCLUSION

 The Court concludes that Axmann has adequately stated his age discrimination 

claim and accordingly denies the motion to dismiss in that respect. However, Axmann has 

not adequately pled retaliation, and the Court thus grants the motion to dismiss that claim 

4

 Axmann purportedly complained of age discrimination on September 28 and October 9, 

2020, and was terminated on January 29, 2021. Am. Compl. ¶¶ 11, 12. Plaintiff has not 

alleged any later protected activity with specificity. 

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ORDER – PAGE 8 

without prejudice and with leave to amend. Provided that he can do so in a manner 

consistent with this opinion, Axmann may file a Second Amended Complaint within thirty 

(30) days of the date of this Order. 

 

 Signed January 25, 2023. 

 ___________________________ 

 David C. Godbey 

 Chief United States District Judge 

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