United States District Court, D. Vermont
OPINION AND ORDER
WILLIAM K. SESSIONS, III, District Judge.
Plaintiff Zack McCain, proceeding pro se and in forma pauperis, brings this civil rights action alleging discrimination on the basis of his race. Now before the Court is a series of motions, including requests by several Defendants for dismissal and/or summary judgment. For the reasons set forth below, those latter motions are granted, with the exception of Costco Wholesale Corporation's motion to dismiss, which is granted in part and denied in part.
I. General Factual Background
McCain is African American. In 1993 or 1994, he pled guilty to federal criminal charges and was sentenced to serve over eight years in prison. While incarcerated, McCain allegedly learned from a fellow inmate that the federal government is intentionally circulating drugs throughout the African-American community, resulting in mass convictions and incarcerations. He claims that this nationwide effort, which also involves the for-profit prison industry, was a factor in his own incarceration. Between 2007 and 2009, McCain pled guilty to two state charges, one of which appears to have been drug-related, and served an additional six months in prison.
In this lawsuit, McCain claims that he has been unable to find or maintain employment because of his criminal record. Specifically, he claims that he has been terminated from or denied employment by a Macy's department store, a Kohl's department store, and Costco. His legal claims are premised upon the contention that these denials, which were the result of the government conspiracy to incarcerate African Americans, violated his federal statutory and constitutional rights. In addition to would-be employers, McCain is suing state and federal actors and Corrections Corporation of America ("CCA"), a private prison corporation, for conspiring to enslave African Americans.
Several Defendants now move for dismissal, arguing failure to state a claim and, in the case of the federal defendants, lack of jurisdiction. Those motions are each addressed below.
II. Macy's Retail Holdings
On or about February 10, 2010, McCain applied for a position at a Macy's retail store. At that time, accepting the facts alleged in his Second Amended Complaint as true, he was facing the prospect of homelessness and feared re-imprisonment if he failed to make required child support payments. Consequently, when the Macy's employment application asked whether he had a criminal record, McCain answered that he did not.
Macy's did not perform a criminal background check on McCain, and hired him to work in their men's wear department. However, a disgruntled co-worker subsequently revealed McCain's criminal history. On or about June 6, 2010, Macy's security officer Travis Ploof informed McCain that he was suspended for falsifying his employment application. The Second Amended Complaint alleges that the suspension was discriminatory, as at least two other Macy's employees with criminal records were not disciplined or fired.
Macy's moves to dismiss all claims brought against it pursuant to Federal Rule of Civil Procedure 12(b)(6). "To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard is not "akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Documents filed by a pro se litigant are "to be liberally construed" and "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
McCain's claims against Macy's are brought under the Thirteenth Amendment and 42 U.S.C. § 1981. The Court previously dismissed all claims against Macy's, but allowed McCain leave to amend his pleadings. In its prior ruling, the Court determined that McCain had failed to demonstrate the sort of involuntary servitude required for a claim under the Thirteenth Amendment. See McGarry v. Pallito, 687 F.3d 505, 511 (2d Cir. 2012). The Court also held that the Thirteenth Amendment does not give rise to an independent cause of action against private parties. See Del Elmer; Zachay v. Metzger, 967 F.Supp. 398, 402 (S.D. Cal. 1997) (collecting cases). With regard to McCain's Section 1981 claim, the Court held that he had failed to allege specific facts to support a claim of intentional discrimination. See Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994) (holding that a plaintiff must specifically allege the "circumstances giving rise to a plausible inference of racially discriminatory intent").
McCain's Second Amended Complaint alleges essentially the same facts as those asserted in his previous pleading, but adds the experiences of two other Macy's employees. First, McCain claims that Marvin Hunt applied to work at Macy's between 2005 and 2007 without disclosing his criminal record. At some point thereafter, Hunt "reoffended" and Macy's became aware of his criminal past. Macy's then allegedly hired him "on the same application." ECF No. 93 at 16. McCain also alleges that Kara Durkin, a white employee, returned to work after an arrest for driving with a suspended license.
McCain presumably includes Hunt and Durkin in his amended pleading in an effort to show that he was treated differently because of his race. As to Hunt, however, McCain clarified in his opposition memorandum that Hunt is African American. Moreover, Macy's knew about Hunt's criminal history when it hired him, while McCain's deception was revealed post-hiring. Meanwhile, Durkin was never prosecuted and thus had no criminal record to hide.
The Second Circuit has held that to survive a motion to dismiss, a plaintiff claiming race discrimination under Section 1981 "must plausibly allege that (1) the employer took adverse action against him and (2) his race... was a motivating factor in the employment decision." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The Second Circuit has emphasized, however, that "at the initial stage of a litigation, the plaintiff's burden is minimal.'" Id. (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)). Thus, a plaintiff "need only plausibly allege facts that provide at least minimal support for the proposition that the employer was motivated by discriminatory intent." Id. at 86-87 (internal quotation marks omitted).
Here, McCain's claims against Macy's do not meet even this minimal threshold. The Second Amended Complaint alleges that he was terminated when his employer learned that he lied on his employment application. Aside from conclusory allegations of a broad conspiracy to deny the rights of African Americans, the pleadings offer no facts to support a claim of intentional discrimination on the basis of race. The Section 1981 claim against Macy's is therefore dismissed.
McCain's opposition memorandum also asserts that Macy's personnel violated his Thirteenth Amendment rights when they conducted a search of his bag and restricted his freedom of movement. The Thirteenth Amendment prohibits involuntary servitude. See McGarry v. Pallito, 687 F.3d 505, 510 (2d Cir. 2012). As there is no allegation here that Macy's forced or coerced McCain to perform work, there is no Thirteenth Amendment claim. Macy's motion to dismiss is therefore granted.
III. Kohl's Department Stores, Inc.
On or about August 5, 2010, McCain applied for work at a Kohl's department store. After he completed his application, Kohl's made him a job offer contingent upon the results of a criminal background check. Kohl's paid a third-party company to conduct the background check, and rescinded the offer of employment after receiving the results.
Nearly three years later, in March 2013, McCain again sought employment at Kohl's. He allegedly spoke with Jason, the Human Resources Manager, who informed him that applicants were denied employment for any criminal conviction aside from driving under the influence. One week later Jason allegedly offered different information, explaining that a conviction for retail theft was the only disqualifier for employment. McCain has since obtained "a report" from the City of Burlington that, though allegedly inaccurate, documents his conviction for retail theft. ECF No. 93 at 35
After consulting with Thomas Perez, a New York-based investigator (perhaps with the EEOC, although the pleadings do not specify), McCain formally applied for a position at Kohl's. Though not specifically alleged, it appears that he was denied employment. McCain now claims that the EEOC was investigating Kohl's at the time, and that the denial of employment was retaliatory. He also alleges that by singling out retail theft as a ground for denying employment, Kohl's engaged in selective enforcement of its employment policies.
Kohl's has filed two motions for dismissal a motion to partially dismiss under Federal Rule of Civil Procedure 12, and a motion for summary judgment under Rule 56. The Rule 12 motion addresses McCain's claim under Section 1981 and his retaliation claim. The summary judgment motion addresses McCain's claims under Title VII.
A. Kohl's Partial Motion to Dismiss
McCain's Section 1981 claim alleges that Kohl's subjected him "to different terms and conditions to make and enforce contracts' than other white persons similarly situated." Id. at 50-51. Section 1981 "protects the equal right of [a]ll persons within the jurisdiction of the United States' to make and enforce contracts' without respect to race." Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006) (quoting 42 U.S.C. § 1981(a)). As discussed previously, a Section 1981 claim requires intentional discrimination on the basis of race. See Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 1999) (citing Milan v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam). This Court previously rejected McCain's Section 1981 claim, finding that the facts did not support a plausible claim that Kohl's or its employees had acted with an intent to discriminate.
McCain's latest pleading is similarly lacking. Accepting the facts alleged as true, a Kohl's employee named Jason offered two different versions of the store's policy with respect to criminal convictions. Whether the store had a blanket policy of denying employment aside from drunk driving convictions, or only denied employment on the basis of retail theft, no facts support a claim that McCain was targeted for discrimination. Indeed, McCain's claims about the timing of Jason's statement, and its possible relationship to a previously-unknown conviction for theft, are highly conjectural. See Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001) (rejecting racial discrimination claims under 42 U.S.C. § 1981 where plaintiffs did "little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race") (citing Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998)). McCain's Section 1981 claim against Kohl's is therefore dismissed.
As to McCain's retaliation claim, courts evaluate Section 1981 retaliation claims under a burden-shifting analysis. The plaintiff must first establish a prima facie case of retaliation by showing that (1) he engaged in protected activity under § 1981; (2) the defendants were aware of this activity; (3) they took adverse action against him; and (4) a causal connection exists between the protected activity and the adverse action. Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010). If that showing is made, the burden shifts to the defendant to offer a legitimate, nondiscriminatory explanation for the adverse action. Id. The final burden belongs to the plaintiff, who must produce evidence sufficient to support a reasonable inference that the defendant's explanation is a mere pretext for retaliation. Id.
Here, McCain has failed to assert a plausible retaliation claim. Reading his pleadings liberally, he appears to be claiming that Kohl's retaliated against him for contacting the EEOC. However, he does not allege that the people responsible for hiring at Kohl's were aware of that activity, or that there was a causal ...