United States Court of Appeals

For the Eighth Circuit

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No. 17-2098

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Douglas McPherson

lllllllllllllllllllll Plaintiff - Appellant

v.

Megan J. Brennan, Postmaster General, U.S. Postal Service

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: March 13, 2018

Filed: April 30, 2018

[Published]

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Before GRUENDER, BOWMAN, and ERICKSON, Circuit Judges. 

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PER CURIAM.

Douglas McPherson appeals the district court’s dismissal for failure to state a

claimin his discrimination-in-hiring action. After carefully reviewing the record and

the parties’ arguments on appeal, we affirm in part and reverse in part. See Plymouth

Cty. v. Merscorp, Inc., 774 F.3d 1155, 1158 (8th Cir. 2014) (grant of motion to

dismiss is reviewed de novo).
McPherson alleged that he wasimproperly rejected for the position ofCriminal

Investigator with the United States Postal Service (USPS) in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and that he

should have been given preference for the position due to his status as a veteran. He

attached the job description for the position and alleged that he was qualified for the

position. The district court granted the Postmaster General’s motion to dismiss the

action under Federal Rule of Civil Procedure 12(b)(6), concluding that McPherson

was precluded from bringing his veteran’s preference claim in federal district court,

and that he failed to allege one of the elements of the prima facie case for his ADEA

claim by admitting that he did not possess a basic requirement listed in the job

description. 

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We conclude that the court erred in dismissing McPherson’s ADEA claim. See

Minn. Majority v. Mansky, 708 F.3d 1051, 1055 (8th Cir. 2013) (in reviewing Rule

12(b)(6) dismissal, the court assumes all facts in the complaint to be true and

construes all reasonable inferences in favor of complainant). While the Postmaster

General argues that McPherson did not plead facts to show he was qualified for the

position because he did not allege that he met all of the minimum qualifications set

forth in the job description (specifically, he did not possess an “1811” criminal

investigator classification), McPherson’s allegations indicated that the criteria the

USPS relied upon in evaluating qualification for the position differed fromthe criteria

set forth in the job description, asthe individualselected for the position did not meet

the stated criteria, and the Office of Personnel Management’s qualification standards

for the position did not require an 1811 classification. See Tusing v. Des Moines

Indep. Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir. 2011) (prima facie case of age

discrimination in hiring requires a showing that plaintiff was in the protected age

McPherson does not challenge on appeal the district court’s dismissal of his

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claim based on his veteran’s preference. See Hess v. Ables, 714 F.3d 1048, 1015 n.2

(8th Cir. 2013) (claims not addressed in brief are abandoned).

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group (over 40), plaintiff was qualified for the position, plaintiff was not hired, and

employer hired a younger person to fill the position). Because McPherson alleged

that he had the educational and professional experience required for the position, we

conclude that he adequately pled a prima facie case. See Blomker v. Jewell, 831 F.3d

1051, 1056 (8th Cir. 2016) (prima facie case is an evidentiary standard, not a pleading

requirement (citing Swierkiewicz v. Sorema, 534 U.S. 506 (2002))); Hager v. Ark.

Dep’t of Health, 735 F.3d 1009, 1014 (8th Cir. 2013) (“Under Swierkiewicz, a

plaintiff need not plead facts establishing a prima facie case of discrimination . . . in

order to defeat a motion to dismiss.”); see also Wilson v. Ark. Dep’t of Human Servs.,

850 F.3d 368, 372 (8th Cir. 2017) (plaintiff’s burden at the prima-facie-case stage of

the analysis is “not onerous”). 

Accordingly, we reverse the dismissal as to McPherson’s ADEA claim, and

remand for further proceedings on that claim. We affirm in all other respects.

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