# ALLEN v. MANPOWER INC.

> District Court, M.D. North Carolina · September 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10254051

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254051

## How later opinions describe it (automated extraction)

- 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)
- 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”
- discussing Title VII and ADA

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254051. Public record. Not legal advice.