ALLEN v. MANPOWER INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK ALLEN, )

)

Plaintiff, )

)

) 1:19cv1191

v. )

)

MANPOWER, INC., 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

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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[ Rlights [Act of] 1964[, the Age

Discrimination in Employment Act of] 1967” (the “ADEA”), and the

Americans with Disabilities Act of 1990 (the “ADA”), Plaintiff

initiated this action against four Defendants: (1) “Manpower ]

Inc.;” (2) “Janas Prising” (“CEO Prising”); (3) “Ruth Harper”

(“Director Harper”); and (4) “John Deere.” (Docket Entry 2 at 1-

3.) The Complaint’s statement of claim states the following:

Al tlemp agency, Manpower/ John Deere, obtains consumer

reports regarding [c]andidates. [Plaintiff has] af[]

[ce] riminal [r]ecord [including one

m]isdemeanor[] . . . convict[ion date of] 04/13/2013,

which is approximately 6 years ago. [Plaintiff also has]

two misdemeanors which are pending trial in district

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)).

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court[, t]he court date is scheduled for 12/10/2019 [no

convictions a]nd one felony which is pending review by

the United States Court of Appeals[. ] Essentially,

[t]his case was remanded by [t]he United States Supreme

Court to the U.S. Court of Appeals--Title 18 USC

922(g)(8)[.] The Government intends to dismiss this

case. Fu[r]thermore, [t]he State of North Carolina

and/or City Of Durham has adopted what[ i]s known as ‘Ban

the box’ which is intended to cease employers from

discriminating against ex[-]cons [and] convicted

felons[.] Also, [s]ee Title VII of the [C]ivil [R]ights

[Act] . . . [and the ADEA].

Moreover, [i]t appears [Plaintiff has] been discriminated

against because [he is] 41 years [o]f age, [n]ot a female

with enormous buttocks and too because [he is] an African

American with a[] learning disability.

(Id. at 4 (parenthesis in original omitted).) The Complaint

further requests “compensat[ion] for [] mental anguish and punitive

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

In addition, Plaintiff submitted two charges of discrimination

on the appropriate Equal Employment Opportunity Commission (“EEOC”)

forms (see id. at 8-11), and provided the Court with two right-to-

sue letters (see Docket Entry 9 at 2-5). Plaintiff’s EEOC forms

reflect the following allegations:

On November 21, 2019, [Plaintiff] applied for a position

with John Deere, through [Manpower, Inc.], for whom

[Plaintiff] had worked in the past.

[Plaintiff] was selected[] and was provided all the

onboarding documents, including information for a

background check. On November 22, 2019, [Plaintiff was]

sent for orientation and workbench training. However, on

November 26, 2019, [Plaintiff] was informed by . . . [a]

recruiter[] that [Plaintiff] would not be hired due [to]

the results of the background check[] from which pending

and/or dismissed charges that have yet to be disposed of

were used to rescind the offer. [Plaintiff] believe[s]

background checks with Manpower are John Deere’s

requirement and it has resulted in [his] being screened

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out. [Plaintiff is] also aware that only younger

individuals were hired by Manpower[, Inc.].

[Plaintiff] believe[s that he has] been discriminated

against because of [his] race, black, and [his] age, 41,

in violation of Title VII . . . and in violation of the

[ADEA. He] also believe[s Defendants’] policy concerning

background checks has an adverse impact on the hiring of

African Americans.

(Docket Entry 2 at 8-11.)

Finally, Plaintiff attached (i) an email from a Manpower, Inc.

employee to Plaintiff, providing the results of his background

report (id. at 12-15), (ii) a motion to suspend briefing in the

case of United States v. Derrick Michael Allen, Sr., No. 17-4762

(4th Cir. Nov. 29, 2019) (id. at 16-19), and (iii) Plaintiff’s

background report (id. at 20-23).

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).2 “A person acts under color of state law only when

2 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

(continued...)

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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

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, Manpower, Inc., and John Deere, and two individuals, CEO

Prising and Director Harper, who serve as officers of Manpower,

Inc. (Docket Entry 2 at 2-3.) Importantly, the Complaint contains

2(...continued)

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.

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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 1-23.)

In other words, the Complaint lacks 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

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, Jr., J.) (unpublished). “A

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

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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 two EEOC Charge forms to his

Complaint (see Docket Entry 2 at 8-11), and later submitted two

right-to-sue letters (see Docket Entry 9 at 2-5). Notably,

Plaintiff failed to exhaust any claims regarding disability and

gender discrimination. (See Docket Entry 2 at 8-11.) Regardless,

those and all other discrimination claims in the Complaint 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, 471-72 (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).

For that reason, Plaintiff cannot proceed against CEO Prising

and/or Director Harper under these statutes. Next, neither the

Complaint nor Plaintiff’s EEOC Charge forms contain sufficient

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; see also id. at 8-

11.)

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-

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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 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 c[ould] not establish that the [ d]efendants 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

“discriminated against because [he is] 41 years [o]f age, [n]ot a

female with enormous buttocks and [] because [he is] an African

American with a[] learning disability.” (Docket Entry 2 at 4.)

Plaintiff’s included EEOC forms make similar bald allegations, with

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the addition of conclusory assertions “that only younger

individuals were hired by Manpower[, Inc.]” and that “[Defendants’]

policy concerning background checks has an adverse impact on the

hiring of African Americans.” (Id. at 8-11.) Moreover, as

mentioned previously, Plaintiff’s EEOC forms make no mention of sex

or disability discrimination. (See id.)

Finally, the EEOC forms reflect non-discriminatory reasons

for Defendants’ ultimate decision not to hire Plaintiff. According

to the EEOC forms, “[Plaintiff] was selected[] and was provided all

the onboarding [sic] documents, including information for a

background check.” (Id. at 8, 10.) The employer also “sent

[Plaintiff] for orientation and workbench training.” (Id.)

Shortly thereafter, an employee from Manpower, Inc., informed

Plaintiff “that [he] would not be hired due [to] the results of the

background check. . . .” (Id.) Therefore, in light of these

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

thereto do not demonstrate any facially plausible nexus between his

protected characteristic[s] and [Manpower, Inc.’s and/or John

Deere’s] failure to hire him, his [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).

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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.

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

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