ALLEN v. DOMINO'S PIZZA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK ALLEN, )

)

Plaintiff, )

)

) 1:19cv1225

v. )

)

DOMINO’S PIZZA, et al., )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on Plaintiff’s Application to

Proceed In Forma Pauperis (the “Application”)(Docket Entry 1) filed

in conjunction with his pro se Complaint (Docket Entry 2). For the

reasons that follow, the Court will grant Plaintiff’s instant

Application for the limited purpose of recommending dismissal of

this action, under 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to

state a claim.

LEGAL STANDARD

“The federal in forma pauperis [‘IFP’] statute, first enacted

in 1892 [and now codified at 28 U.S.C. § 1915], is intended to

guarantee that no citizen shall be denied access to the courts

‘solely because his poverty makes it impossible for him to pay or

secure the costs.’” Nasim v. Warden, Md. House of Corr., 64 F.3d

951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont

de Nemours & Co., 335 U.S. 331, 342 (1948)). “Dispensing with

filing fees, however, [is] not without its problems. Parties

proceeding under the statute d[o] not face the same financial

constraints as ordinary litigants. In particular, litigants suing

[IFP] d[o] not need to balance the prospects of successfully

obtaining relief against the administrative costs of bringing

suit.” Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).

To address this concern, the IFP statute provides, in relevant

part, that “the court shall dismiss the case at any time if the

court determines that the action or appeal fails to state a claim

on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint falls short when it does not “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) (emphasis added) (internal citations omitted) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard

“demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. In other words, “the tenet that a court must

accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Threadbare recitals of the

-2-

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id.!

BACKGROUND

Asserting claims under “42 U.S.C. § 1983,” and in violation of

“Title VII of the [C]Jivil Rights [Act] of 1964, [the A]ge

Discrimination [in E]mployment [A]ct of 1967” (the “ADEA”), and the

[Americans with D]isabilit[ies A]lct of 1990” (the “ADA”), Plaintiff

initiated this action against three defendants: (1) “Domino[’]s

Pizza;” (2) “James Thompson” (“Defendant Thompson”) ; and

(3) “HireRight.” (Docket Entry 2 at 1-4 (parenthesis in original

omitted) .)* The Complaint’s statement of claim states that,

“[Plaintiff] was denied a job based upon dismissal and/or a

misdemeanor which dates back to 2013 which is approximately 6 years

t Although “[a] document filed pro se is 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) (internal

citations and quotation marks omitted), the United States Court of

Appeals for the Fourth Circuit has “not read Erickson to undermine

Twombly’s requirement that a pleading contain more than labels and

conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th

Cir. 2008) (internal quotation marks omitted) (dismissing pro se

complaint); accord Atherton v. District of Columbia Office of

Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (‘A pro se

complaint . . . ‘must be held to less stringent standards than

formal pleadings drafted by lawyers.’ But even a pro se

complainant must plead ‘factual matter’ that permits the court to

infer ‘more than the mere possibility of misconduct.’” (first

quoting Erickson, 551 U.S. at 94; then quoting Iqbal, 556 U.S. at

679)).

* Citations to Docket Entry pages utilize the CM/ECF footer’s

pagination.

-3-

ago, [and based on his] age, race, color[,] and disability.” (Id.

at 5.) Further, as its basis for proceeding under Section 1983,

the Complaint asserts the following:

[Plaintiff] was denied employment as a delivery driver.

It was first communicated to [Plaintiff] by [t]he

[g]eneral manager, [Defendant] Thompson, [that Plaintiff]

was not eligible to be re-hired due to th[e] results of

[his] back[]ground check. [Plaintiff] later received an

email from [Defendant Thompson] communicating that

Domino’s [P]izza would not offer [Plaintiff] employment

because of charges which were pending but dismissed on

12/10/2019[ a]nd a . . . misdemeanor that dates back to

[March 2013].

. . . .

[Plaintiff] provided certified criminal records from

[D]urham [C]ounty [J]ail which conveyed dismissal of

19cr056324, and 19cr056326. [Plaintiff] also provided a

[l]etter from [his] attorney . . . who explained

dismissal of the above[-]mentioned charges. Even after

[Plaintiff] provided [Defendants] with documentation of

dismissal of the above[-]mentioned offenses[, Plaintiff]

was still denied employment.

(Id. at 4 (parenthesis and brackets in original omitted).) The

Complaint further asserts that Plaintiff endured “homelessness”

(id. at 5) and requests “compensat[ion] for [] mental anguish and

punitive damages in accordance with federal law” (id. at 6).

In addition, Plaintiff submitted a charge of discrimination on

the appropriate Equal Employment Opportunity Commission (“EEOC”)

form (see id. at 16-17), however, Plaintiff did not attach a copy

of any right-to-sue letter (see generally Docket Entry 2; see also

id. at 20-21 (notice confirming that “[Plaintiff’s] appointment has

been scheduled” with the EEOC on “Monday, 03/30/2020, 10:30 AM”)).

-4-

In any event, the included EEOC Charge reflects the following

allegations:

On or about December 9, 2019, [Plaintiff] was denied

employment in the position of Delivery Driver. [Domino’s

Pizza] employs more than fifteen [] persons.

On or about December 4, 2019, [Plaintiff] applied to

the position of Delivery Driver; [Plaintiff] ha[s] worked

for another Domino[’]s Pizza restaurant in the past.

[Defendant] Thompson (White), General Manager, told

[Plaintiff] that [Plaintiff] could not be hired due to

the results of [his] criminal background check. One of

the charges used against [Plaintiff] was more than six

years old and the others were dismissed on December 11,

2019.

[Plaintiff] believes that [he] has been

discriminated against because of [his] race ([b]lack) and

sex (male) in violation of Title VII . . . [and] because

of [his] age (41) in violation of the [ADEA,] and because

of [his] disability in violation of the [ADA] . . . .

(Id. at 16-17 (roman numerals omitted).)

Finally, Plaintiff attached (i) a letter from his attorney

noting the “dismissal of all charges” (id. at 8), and providing

“printout[s] of the [Durham County] District Court record” (id. at

9-12), (ii) his background report as “[p]repared by HireRight, LLC”

(id. at 13-15), (iii) an email from HireRight Customer Support to

Plaintiff, notifying him of the decision “not to offer

[him] . . . employment” and of his “entitle[ment] to free

disclosure of the information contained in [his] background report”

(id. at 18-19), and (iv) letters from HireRight to Plaintiff,

providing him with “information that [he] recently requested”

including his “Background Check Report” (id. at 22-25).

-5-

DISCUSSION

I. No State Action

As an initial matter, to state a claim for relief under

Section 1983, Plaintiff must assert “that [he was] deprived of a

right secured by the Constitution or laws of the United States, and

that the alleged deprivation was committed under color of state

law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50

(1999).3 “A person acts under color of state law only when

exercising ‘power possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority

of state law.’” Bailey v. Prince George’s Cnty., 34 F. Supp. 2d

1025, 1026 (D. Md. 1999) (quoting United States v. Classic, 313

U.S. 299, 326 (1941)). Put another way, “[t]he person charged

[under Section 1983] must either be a state actor or have a

sufficiently close relationship with state actors such that a court

would conclude that the non-state actor is engaged in the state’s

3 Specifically, Section 1983 provides, in pertinent part,

that

[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress[.]

42 U.S.C. § 1983.

-6-

actions.” DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999);

see also Bailey, 34 F. Supp. 2d at 1026 (“The alleged infringement

of federal rights must be fairly attributable to the state.”

(citing Rendell-Baker v. Kohn, 457 U.S. 830 (1982))}). “In general,

private companies and corporations do not act under color of state

law.” Ellis v. Santander Consumer USA, Civ. Action No. 13-2099,

2013 WL 3753624, at *5 (W.D. Tenn. July 15, 2013) (unpublished).

Here, the Complaint asserts claims against two private

companies, Domino’s Pizza and HireRight, and one individual,

Defendant Thompson, who serves as a “[g]leneral [mJanager” at

Domino’s Pizza. (Docket Entry 2 at 2-3.) Importantly, the

Complaint contains no factual matter suggesting that any defendant

(1) works as a state official, (2) acted in concert with a state

official, or (3) violated Plaintiff’s rights under compulsion of a

state official. (See id. at 1-7.)

In other words, the Complaint does not allege factual matter

establishing state action. See DeBauche, 191 F.3d at 507

(explaining that “private activity will generally not be deemed

‘state action’ unless the state has so dominated such activity as

to convert it into state action”). The Complaint’s Section 1983

claim therefore fails as a matter of law. See American Mfrs. Mut.

Ins. Co., 526 U.S. at 50 (holding that Section 1983’s

under-color-of-state-law requirement “excludes from its reach

-7-

merely private conduct, no matter how discriminatory or wrongful”

(internal quotation marks omitted)).

Accordingly, the Court should dismiss all Section 1983 claims

against all Defendants for failure to state a claim.

II. Title VII, ADA, and ADEA Claims

Additionally, “[b]efore a plaintiff can bring an action under

Title VII, the ADA, or the ADEA, the plaintiff must first exhaust

his administrative remedies with the EEOC.” Sarteh v. Youth Focus,

Inc., No. 1:08CV113, 2008 WL 11355352, at *4 (M.D.N.C. Dec. 17,

2008) (unpublished), recommendation adopted, 2009 WL 10680180

(M.D.N.C. Feb. 23, 2009) (Beaty, C.J.) (unpublished). “A

plaintiff’s EEOC charge defines the scope of h[is] subsequent right

to institute a civil suit.” Evans v. Technologies Applications &

Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996). As referenced

previously, Plaintiff attached an EROC Charge form to his

Complaint, but not a right-to-sue letter. Even assuming that

Plaintiff had exhausted his administrative remedies as to the

claims he has set forth, his Complaint would still fail as a matter

of law for several reasons.

First, Title VII, the ADA, and the ADEA provide a cause of

action against only employers, not supervisors or fellow employees.

See Baird ex rel Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999)

(discussing Title VII and ADA); see also McNeal v. Montgomery

Cnty., 307 F. App’x 766, 775 n.6 (4th Cir. 2009) (discussing ADEA).

-~g-

For that reason, Plaintiff cannot proceed against Defendant

Thompson under those statutes. Next, neither Plaintiff’s Complaint

nor the EEOC Charge form contains factual allegations to support a

claim that his prospective employer discriminated against him

because of his race, sex, disability, or age. (See Docket Entry 2

at 4-5; see also id. at 16-17.)

In this regard, Title VII requires an employee claiming

discrimination to show that an adverse employment action occurred

“because of” the employee’s race or sex. 42 U.S.C. § 2000e-

2(a) (1); see also Hill v. Lockheed Martin Logistics Mgmt., Inc.,

354 F.3d 277, 286 (4th Cir. 2004) (explaining that, under Title

VII, “an individual alleging disparate treatment based upon a

protected trait must produce sufficient evidence upon which one

could find that ‘the protected trait . . . actually motivated the

employer’s decision’” (quoting Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 141 (2000))), abrogated in part by Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167 (2009). The ADEA and the ADA have

similar requirements. See, e.g., Phillips v. Loudoun Cnty. Pub.

Schs., No. 1:19CV501, 2019 WL 5445292, at *7 (E.D. Va. Oct. 23,

2019) (unpublished) (dismissing ADA claim, in part, because “the

plaintiff cfould] not establish that the [ d]lefendants failed to

hire him because of his disability” (italics in original)); Bullock

v. Spherion, No. 3:10CV465, 2011 WL 1869933, at *5 (W.D.N.C. May

16, 2011) (unpublished) (holding that, in order to establish ADEA

□□□

claim based upon failure to hire, a plaintiff must “prove that age

was the ‘but-for’ cause of the alleged adverse action taken against

him”).

Here, the Complaint simply lacks any factual matter on that

front, relying instead on conclusory assertions that Plaintiff was

“denied a job based upon . . . [his] age, race, color, and

disability.” (Docket Entry 2 at 5.) The Complaint fails to make

any factual allegations that would support an inference that

Plaintiff suffered adverse employment action based on his sex.

(See id. at 1-7.) Plaintiff’s included EEOC form offers only

conclusory allegations that Plaintiff “believe[s] that [he] ha[s]

been discriminated against because of [his] race ([b]lack) and sex

(male) in violation of Title VII . . . [,] because of [his] age

(41) in violation of the [ADEA,] and because of [his] disability in

violation of the [ADA].” (Id. at 16.)4

4 The EEOC form also asserts that “[Defendant] Thompson

([w]hite), [g]eneral [m]anager, told [Plaintiff] that [he] could

not be hired,” (id.); however, the mere allegation that a

supervisor of one race failed to hire an applicant of a different

race does not present a plausible claim of discrimination. See

McCleary-Evans v. Maryland Dep’t of Transp., State Highway Admin.,

780 F.3d 582, 586 (4th Cir. 2015) (finding that, even with the

addition of allegation that “non-Black candidates were selected to

fill the positions instead of [the plaintiff, ] the allegation that

non-Black decisionmakers hired non-Black applicants instead of the

plaintiff . . . does not alone support a reasonable inference that

the decisionmakers were motivated by bias” (quotation marks and

italics omitted)).

-10-

Finally, the Complaint and the EEOC form reflect non-

discriminatory reasons for Defendants’ decision not to hire

Plaintiff. According to the Complaint, Defendant Thompson

“communicated to [Plaintiff] . . . [that he] was not eligible to be

re-hired due to th[e] results of [his] back[]ground check.”

(Docket Entry 2 at 4.) The EEOC form includes nearly identical

language. (See id. at 16.) Therefore, in light of those factual

allegations, and “[b]ecause Plaintiff’s Complaint and attachments

thereto do not demonstrate any facially plausible nexus between his

protected characteristic[s] and [Defendants’] failure to hire him,

his [instant claims should] be dismissed.” Hansen v. Siemens

Energy, No. 3:12CV370, 2012 WL 5388920, at *3 (W.D.N.C. Nov. 1,

2012) (unpublished), appeal dismissed, 519 F. App’x 211 (4th Cir.

2013).

CONCLUSION

In sum, Defendants do not qualify as “state actors” subject to

suit under Section 1983, and Plaintiff’s allegations do not state

a viable claim under Title VII, the ADEA, or the ADA.

IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave

to Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE

LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION

OF DISMISSAL.

-11-

IT IS RECOMMENDED that this action be dismissed under 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which

relief can be granted.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

September 22, 2021

-12-