Petition for Writ of Certiorari — Nancy Massenburg, Petitioner v. Innovative Talent Solutions, Inc., et al.
Supreme Court briefJul 23, 2020
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
Nancy D-Massenburg-Petitioner
VS.
INNOVATIVE TALENT SOLUTIONS, INC., et al-Respondent (s)
ON PETITION FOR A WRIT OF CERTIORARI TO
FOURTH CIRCUIT COURT OF APPEALS
PETITION FOR WRIT OF CERTIORARI
Nancy D-Massenburg
PO Box 224
Blairs, Va. 24527
919.400.2033
RECEIVED
Jill 2" mo
iv.
QUESTIONS PRESENTED
1) Whether the Fourth Circuit properly upheld the district
court's dismissal of Title VII claim where the particular
discriminatory practice had been identified and genuine issues
of material fact that could change the outcome of the case were
properly identified in Massenburg's Opposition? Fed. R. Civ.
Pro. 56 (c) (1)(B), 42 U.S.C. § 2000e-7
2) Whether my Title VII, 1991 amendment claim and 42 USC
1981 (b) legal claims were treated as separate, independent,
and distinct, as a matter of law and in the interest of adequate
relief? Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990)
3) Whether conflict exists within the Fourth Circuit where
previous rulings have allowed claims "arising from” or
"relating back" to the actionable EEOC intake questionnaire
to serve as a “charge” for the purpose of establishing the
limitations period. Fed R. of Civ. P. 15 (c) (1) (B), Federal
Express Corp. v. Holowecki, 552 U.S. 389 (2008); 29 C.F.R. §§
1601.9,1601.12,1626.3,1626.6,1626.8.
4) Whether pro se persons should be issued Notices of
Deficiency and afforded the same opportunity to make
corrections to filings as is offered in the lower courts to persons
trained in applying the law.
11
LIST OF PARTIES
Pursuant to Rule 14.1(b), Petitioner
states that the
parties include:
Nancy D-Massenburg,
Petitioner
Innovative Talent Solutions, Inc. (ITS),
Respondent
3. Lee Air Conditioners, Inc. (Lee),
Respondent
CORPORATE STATEMENT
I, Nancy Dickerson-Massenb urS> am a private
citizen with no corporate interests.
iii
TABLE OF CONTENTS
Questions Presented........................
i
List of Parties/Corporate
Statement.....................................
ii
Table of Contents..............................
iii
Index of Appendix...............................
viii
Table of Authorities.............................
ix
Opinions Below..................................
1
Statement of Jurisdiction..................
1
Constitutional and Statutory Provisions
Involved...............................................
Statement of the Case...........................
I. Factual Background......................
2
3
4
T'Jhw,f°,Urth Circuit erroneously upheld dismissal of
Title vli claim claiming I failed to identify a specific
challenged employment practice........ ...........
5
iv
TABLE OF CONTENTS - continued
A- ITS registration/referral practice targets Black
Applicants w/ prior convictions
7
B. ITS is a Staffing Agency-No justification for
cancelling access to future opportunities with no
assessment to determine business necessity, as
it does for other similarly situated applicants.... 11
C. The Fourth Circuit upheld the district court's
erroneous finding that I did not respond to ITS'
compliance with NC Negligent Hiring Laws
defense, where 42 USC 2000e-7 supersedes..... 17
III. The Fourth Circuit Court of Appeals erroneously
upheld the dismissal of my right to jury trial for the 42
> • USC 1981(b) legal issues under the premise tfiatthe
Title VII claim provided the exclusive remedy............... 21
IV. The Fourth Circuit erroneously upheld the district
court’s dismissal of my retaliatory Fair Credit Reporting
Act violation claim, stating that I had not submitted
evidence in support of the claim
25
a. Petitioner left unclear as to which claims were
properly before the court.
28
TABLE OF CONTENTS-continued
circuit JiwLmUSt-S°,Ve the conflict within
Fourth
n"f “1 where previous rulings, have allowed claims
intotL"9 fr°I? or "relatin9 back" to the actionable EEOC
intake questionnaire to serve as a “charge” for the °
and the
32
agaT^tF^^reSydeemedClaimS
33
Wseca«ro*aLay15d2?180in‘ EmP'°yer reS'*>"de"*in
App 6.................................’ pursuant to FRCP 20(a)(2),
...33
.................................. 35
"sZ7:,'ZrZS Proceeding pro se should be
If*,™
of Deficiency and afforded the same
in toJtow* co!T^LCOrreC“0nS 40 fiHn9s as is offered
.-n-arf'?:W *°urts to Pereons trained in the law and
mstrucbon of how to arrange deposition?
..38
!
4
No.
IN THE
SUPREME COURT OF THE UNITED STATES
Nancy D-Massenburg-Petitioner
VS.
INNOVATIVE TALENT SOLUTIONS, INC., et al-Respondent (s)
ON PETITION FOR A WRIT OF CERTIORARI TO
FOURTH CIRCUIT COURT OF APPEALS
PETITION FOR WRIT OF CERTIORARI
Nancy D-Massenburg
PO Box 224
Blairs, Va. 24527
919.400.2033
RECEIVED
Jill 2w m
§UPREME^DOURTLUl|K
!
i
QUESTIONS PRESENTED
1) Whether the Fourth Circuit properly upheld the district
court's dismissal of Title VII claim where the particular
discriminatory practice had been identified and genuine issues
of material fact that could change the outcome of the case were
properly identified in Massenburg's Opposition? Fed. R. Civ.
Pro. 56 (c) (I)(B), 42 U.S.C. § 2000e-7
2) Whether my Title VII, 1991 amendment claim and 42 USC
1981 (b) legal claims were treated as separate, independent,
and distinct, as a matter of law and in the interest of adequate
relief? Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990)
3) Whether conflict exists within the Fourth Circuit where
previous rulings have allowed claims "arising from" or
"relating back" to the actionable EEOC intake questionnaire
to serve as a “charge” for the purpose of establishing the
limitations period. Fed R. of Civ. P. 15 (c) (1) '(B),' Federal
Express Corp. v. Holowecki, 552 U.S. 389 (2008); 29 C.F.R. §§
1601.9,1601.12,1626.3,1626.6,1626.8.
4) Whether pro se persons should be issued Notices of
Deficiency and afforded the same opportunity to make
corrections to filings as is offered in the lower courts to persons
trained in applying the law.
11
LIST OF PARTIES
Pursuant to Rule 14.1(b), Petitioner states that the
parties include:
•
Nancy D-Massenburg,
Petitioner
Innovative Talent Solutions, Inc. (ITS),
Respondent
3. Lee Air Conditioners, Inc. (Lee),
Respondent
CORPORATE STATEMENT
Nancy Dickerson-Massenburg, am a private
citizen with no corporate interests.
ill
table of contents
Questions Presented..........
i
List of Parties/Corporate
Statement.....................
...ii
Table of Contents...............
hi
Index of Appendix.................
VIII
Table of Authorities.............
ix
Opinions Below............
..1
Statement of Jurisdiction........
1
.nv“°na'and StatUf0ry Provis'°ns
.......... .
..2
Statement of the Case....,
3
I. Factual Background
XS Sa7mftngTStedUtoydPh«jd dismissa' of
challenged employment pracMc7.!
fy * specific
......................... .
IV
TABLE OF CONTENTS - continued
A- ITS registration/referral practice targets Black
Applicants w/ prior convictions......................... 7
B. ITS is a Staffing Agency-No justification for
cancelling access to future opportunities with no
assessment to determine business necessity, as
it does for other similarly situated applicants.... 11
C. The Fourth Circuit upheld the district court's
erroneous finding that I did not respond to ITS*
compliance with NC Negligent Hiring Laws
defense, where 42 USC 2000e-7 supersedes..... 17
III. The Fourth Circuit Court of Appeals erroneously
upheld the dismissal of my right to jury trial for the 42
USC 1981(b) legal issues under the premise that the
Title VII claim provided the exclusive remedy............... 21
IV. The Fourth Circuit erroneously upheld the district
court’s dismissal of my retaliatory Fair Credit Reporting
Act violation claim, stating that I had not submitted
evidence in support of the claim
25
a. Petitioner left unclear as to which claims were
properly before the court,
28
V.
TABLE OF CONTENTS-continued
V. This court must solve the conflict within the Fourth
Circuit where previous rulings, have allowed claims
arising from" or "relating back" to the actionable EEOC
intake questionnaire to serve as a “charge” for the
purpose of establishing the limitations period and the
shared interest exception......... ..............
32
1. The Fourth Circuit erroneously deemed claims
against Lee Air to be time barred......
33
2. Lee Air was added as Joint Employer respondent in
App 63Se °n May 15’ 2°^8, pursuant to FRCP 20(a)(2),
................ .. .................... .,,,,,33
3. The 4 factors previously used by several district
P™1* [n the Fourth Circuit to determine subject matter
35
VI. Whether persons proceeding pro se should be
issued Notices of Deficiency and afforded the same
opportunity to make corrections to filings as is offered
in tiie lower courts to persons trained in the law and
instruction of how to arrange deposition?,
38
vi
TABLE OF CONTENTS - continued
Reasons for Granting the
Petition..............................
vi
I. Petitioner Massenburg was not allowed to submit un
notarized Affidavit with her timely filed Opposition to
Summary Judgement, with the promise of correcting the
oversight and resubmitting the Affidavit the next day
. As
a result, it appears that my identification of
discriminatory practices; genuine issues of material fact
and evidence to support have not been considered. Pro
se plaintiffs are entitled to have their rights vindicated at
the EEOC Stage and in the lower courts minus
intentionally created technicalities.
II. In the interest of adequate relief, this court must
solve the conflict within the Fourth Circuit where
previous rulings have allowed claims "arising from" or
relating back" to the actionable EEOC intake
questionnaire to serve as a “charge” for.the purpose of
establishing the limitations period, shared interest
exception and identifying created technicalities Fed R.
of Civ. P. 15(c) (1) (B)
vi i
TABLE OF CONTENTS
- continued
III. This court must enforce summary judgement
standards that require the moving party to produce
.. . n.ce’ not Persuasion, in support of its nondrscnminatory defenses". The lower courts are
(
udgement
court.......
Conclusion...
VII
..38
viii
TABLE OF CONTENTS — continued
Introduction and Index to Appendix
US Court of Appeals for the Fourth Circuit-DE 36,
Order on Petition for Hearing En Banc, Feb 25
2020,
■APP. 1 (pgs 1-2)
US Court of Appeals for the Fourth Circuit-DE 30-1
Pet. for Rehearing En Banc, Oct. 22,2019
APP. 2 (pgs. 3-30)
US Court of Appeals for the Fourth Circuit-DE 28,
Opinion, Oct. 8,2019,
•APP. 3 (pgs. 31-33)
United States District Court for the Eastern District of NC-DE 176,
Order, Feb.4,2019 .........................................APP. 4 (pgs. 34-64)
United States District Court for the Eastern District of NC, DE
177, Judgement, Feb. 4,2019
•APP. 5 (pg 65)
US District Court for the Eastern District of NC, DE 125,
Magistrate's order, May 15,2019.................... APP. 6 (pg. 66-86)
EEOC Guidance 915.002-Discriminatory Assignment
Practices @ Allocation of Remedies
App.7(pg 87)
IX
Table of Contents- continued
Massenburg's rejected Affidavit for Opposition to ITS, Inc.
Motion for Summary Judgement.
App. 8 (pg 88-95)
TABLE OF AUTHORITIES
CASES
PAGE
Anderson v. Liberty v Lobbv. Inc., 477 U.S.242. 248
106 S. Ct. 2505, 91 L. Ed. 2d 202(1986).................
5
Beacon Theatres, Inc. v. Westover,
359 U.S. 500, 359 U.S. 510-511............
25
Burnett v. Holder, 2010 U.S. Dist.
LEXIS 135792, *11-13, 2010 WL 5396067
6
Christmas v. N.C. Dep't of Admin., 2011 U S Dist LEXIS
52300, *22-23, (2011).................................
17
Connecticut v. Teal, U.S.,
No. 80-2147, 452-456
10
Cox v. Lowe's Home Ctrs., LLC, 2015 U.S Dist
LEXIS 155296, *7, 2015 WL 7288689.........
18
X
Table of Authorities-continued
Curtis v. Loether, 415 US 189, 415
U S. 196, n. 11, page 494 US 546,
25
Dairy Queen, Inc. v. Wood, 369 U.S.
469, 369 U.S. 473..................
25
Federal Express Corp. v. Holowecki
552 U.S. 389 (2008)....................
33
Gray v. Waimart Stores, Inc., 2011 U.S. Dist. LEXIS 51155 United
States District Court for the Eastern District of North Carolina,
Southern Division, May 12,2011.....................
Green v. Missouri Pacific Railroad Company
523 F. 2d 1290, 1972 U.S. LEXIS, 3007....’
Griggs v. Duke Power Co., 401 U.S. 424,429,431,91
S.Ct. 849,852, 853,28 L.Ed.2d 158 (1971),...’
39
6
Horizon Healthcare Services Inc. Data Breach Litiqation
846 F,3d 625, 641 (C.A.3 (N.J.), 2017............................’ 30
Love v. Pullman Co.,
404 U.S. 522, 527 (1972)...........................................
Lytle v. Household Mfg., Inc.,
494 U.S. 545(1990)...........................................
5
21
XI
TABLE OF AUTHORITEES-continued
McKennon v. Nashville Banner Publishing Co.
115 S.Ct. 879, 65 EPD Par. 43,368 (1995)....
26
Novotny v. Great Am. Fed. Sav. & Loan Ass'n
584 F.2d 1235, 1256-59 (3rd Cir. 1978).........
Olvera Morales v. Int'l Labor Mgmt. Corp
No. 1:05CV00559, 2008 at *1-2
(M.D.N.C. Apr. 4, 2008)...............................
33
Reeves v. Sanderson Plumbing Prods. Inc.
530 U.S. 133, 147, 120 S. Ct. 2097, 147 .....
Texas Dept, of Commun. Affairs v. Burdine
450 U.S. 248 (1981).........................
Texas Dept, of Commun. Affairs v. Burdine
450 U.S. 252-256 (1981)..........................’
5
5
-1OPINIONS BELOW
Petition for Rehearing was denied by the US Court of Appeals for
the Fourth Circuit on February 25,2020. Facts and legal
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process. The
opinion of the US Court of Appeals for the Fourth Circuit was
issued on October 8,2019 affirming the decision of the US District
Court for the Eastern District of North Carolina which was issued
on February 4,2019 (Document # 176-5:16-cv-00957-D)
******
STATEMENT OF JURISDICTION
April 2020 order issued by this court extended deadline to file to
150 days from denied Rehearing en Banc. The US Court of
Appeals for the Fourth Circuit denied Petition for Rehearing En
Banc on February 25,2020 after issuing its opinion on October 8,
2019 affirming the decision of the US District Court for the
Eastern District of North Carolina which was issued on February 4,
2019. The jurisdiction of this Honorable Court is invoked pursuant
to 15 USCA 1681p and Title 28 U.S. C. § 1254 (1)
******
-2-
FEDERAL STATUTES
Title 28 U.S. C. § 1254 (1)
Title 28 U.S.C.S. § 1367(a)
Title 15 U.S.C.A. § 1681a (o)(5)(C)(i)(ii)
Title 15 USC 1681p
Title 42 U.S.C. § 1981a
Title 42 U.S.C. § 1981(b)
Title 42 U.S.C. § 2000e-2 (b), 2et seq
Title 42 USC 2000e-3a
Title 42 U.S.C. § 2000e-7
STATE STATUTES
N.C. Gen. Stat.§ 143-422.2
N.C. Gen. Stat.§ 95-243
N.C. Gen. Stat.§ ID et seq
OTHER AUTHORITIES
EEOC Guidance 915.002-Discriminatory Assignment
Practices @ Allocation of Remedies # 7
COURT RULES
Fed. R. Civ. Pro. 50 a
Fed. R. Civ. Pro. 56 (c) (1)(B)
Fed. R. Civ Pro. 12 (b)(6)
Fed. R. Civ. Pro. 10 (c)
Fed. R. Civ. P. 11(b)(4)
Fed R. of Civ. P. 15 (c) (1) (B)
Fed.R. Civ.P. 20 (a)(2)
Fed. R. Civ. Pro. 45
Fed. R. Civ. P. 26(a)(1)(A), Fed. R. Civ. P. 26 (b)(1)
-3-
STATEMENT OF THE CASE
On February 2, 2017, American black appellant,
proceeding pro se, paid filing fee of $ 400.00, receipt
number RAL05493 and filed a complaint against Ashley
Hunt, d/b/a Innovative Talent Solutions, Inc. ("ITS") and
an unnamed client of ITS for whom a discriminatory
hiring policy was enforced ("Unnamed Client"), seeking
relief under Title VII of the Civil Rights-Act of 1964
("Title VII"), as amended, and 42 USC 1981 (b) et seq,
[D.E. 7], On March 7, 2017,1 filed the first amended ’
complaint adding 42 US CODE 1985, 1986, and 18 U.S.C.
§ 241 claims against Ashley Hunt ("Hunt") and Kimberly
Korando ("Korando") [D.E. 33] applying the reasoning of
the exception to intracorporate conspiracy doctrine. On
August 2, 2017, the claims against Hunt and Korando
were dismissed with prejudice [D.E. 64].
On March 8, 2018, pursuant to FRCP 15(c)(1), 15
(d), and Scheduling Order, I filed a Motion for Leave to
Amend Complaint (DE 97), Proposed 2nd Amended
Complaint (DE 97-2), Memorandum in Support of Motion
(DE 98), adding the Title VII retaliation, FCRA and State
claims against ITS.(97-29 @ page 4). On April 20, 2018,
while the Motion for Leave to Amend was still pending
before the court, ITS moved for Summary Judgement (DE
112-115). On April 23, 2018,1 filed Motion to compel
Subpoenaed Responses to Request for Admissions (DE
117, 117-1). On May 14, 2018,1 filed my Opposition to ITS
Motion for Summary Judgement. Per the clerk’s office, I
I
-4had to remove the Affidavit because it was not notarized,
as opposed to filing the Affidavit, with knowledge that I
would correct the oversight or issuing a Notice of
Deficiency. (DE 122-124). On May 15, 2018, US
Magistrate Judge Numbers II, granted permission to
Amend Complaint to add Lee Air w/no new claims against
ITS, (DE 125). I added Lee Air to the pending Proposed
Amended Complaint (97-2), and corrected the FCRA
statutes 15 USCA § 1681a (o)(5)(B), 15 USCA § 1681a
(°)(5)(C)(i)(ii)- (DE 128). No ruling on Amended
Complaints was entered until the United States District
Court for the Eastern District of NC, Order, Feb. 4, 2019
was filed. Appellant issued timely Notice of Appeal, paid
the $300 filing fee-receipt number RAL069917.
Respondents and District Court notified of intent to file
Petition for Writ of Certiorari on March 9, 2020.
Respondent ITS rejected any reasonable Settlement, Lee
Air not willing to negotiate.
I. FACTUAL BACKGROUND
Petitioner was not allowed by District Court
clerk’s office to submit “un-notarized” Affidavit with its
Opposition to ITS’ Motion for Summary Judgement with
the promise of correcting the oversight and re-submit the
Affidavit the next day. Summary Judgement was granted
on February 4, 2019 on the basis that I did not identify
the discriminatory practice, did not produce supporting
evidence and did not address ITS’ non-discriminatory
reasons for its rejection. Discriminatory Practice and
Genuine Issues of Material Fact were identified in
-5District Court DE 122. Love v. Pullman Co., 404 U.S. 522
527 (1972). "A fact is material if it might affect the
outcome of the suit under the governing law." (quoting
Anderson v. Liberty v Lobbv. Inc., 477 U.S. 242. 248 106
S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Jackson v. FKI
Logistex. 608 F. Supp. 2d 705, 706-707. 2009 U.S. Dist.
LEXIS 32809. *4. 106 Fair Empl. Prac. Cas. (BNA) 139.
Fed. R. Civ. Pro. 56 (c) (1)(B)-Summary Judgement-A
party asserting that a fact is genuinely disputed must
support the assertion by showing that the materials cited
do not establish the absence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to
support the fact. Texas Dept, of Commun. Affairs v
Burdine, 450 U.S. 248 (1981) held: The defendant need
not persuade the court that it was actually motivated by
the proffered reasons, but it is sufficient if the defendant's
evidence raises a genuine issue of fact as to whether it
discriminated against the plaintiff. To accomplish this,
the defendant must clearly set forth, through the
"introduction of admissible evidence", the reasons
for the plaintiffs rejection. Pp. 450 U.S. 252-256.
Fourth Circuit erroneously upheld dismissal
of Title VII claim claiming I failed to identify a
specific challenged employment practice.
My opposition Responses:
id DE 122 page 3 @ A (1)
A. Title VII prohibits not only intentional
discrimination, but also practices that have the
effect of discriminating against individuals because
of their race, color, national origin, religion, or sex.
-642 USC 2000e-2 et seq, FF2-Griggs v. Duke Power
Co., Exhibit H3-Burnett v. Holder, 2010 U.S. Dist.
LEXIS 135792, *11-13, 2010 WL 5396067
POLICY
1. Despite numerous requests as to whether or not it is
"the defendant's policy to enforce the client criteria"
where formerly incarcerated individuals are concerned,
defendant could not/would not offer anything more than
"the client sets the criteria". Exhibit El, E2, Exhibit HI,
H2, L, LI, DE 114-3 page 7 Exhibit 1 and Exhibit 003 and
004
See: District Court DE 166-4 (Lee National Criminal
Background Check criteria, no timeframe or line items
specified)
PRACTICE:
id DE 122 page 4 @ # 4 a4. Defendant also says background checks are not
run until after a conditional offer of employment
has been made by the client and accepted by the
applicant.
a. Genuine Issue: When applicants (plaintiff) are being
disqualified from consideration on sight of prior
convictions "because of' client "no prior misdemeanor or
felony criteria (as in this case), with no questions asked to
determine job related-client interviews never happen.
Defendant states other people with prior convictions have
been "registered" "referred" and "hired" through its
staffing firm, why was I treated differently?
-7-
DE 122 page 6 @ # 7
7. Genuine Issue: Defendant practice: My resume, the
telephone interview based on my resume and the
progression to the next step of defendant's registration
process "face to face interview" implies that I met the
employability standards of defendant staffing agency,
until my application was received the very next morning
which revealed I had been convicted of a crime in 1997.
There were no questions asked to determine "job related",
request professional references or anything else for that
matter. Year of conviction was noted on the application
(1997) not 2001 as footnoted on DE 115@ page 7
* District Court DE 124-6 Par, 3 lines 3-ITS EEOC
Statement
id. Representative articulates that at the time she did not
know the criteria for the company with regards to what
line items such as felonies would be relevant in criminal
background check. She now knows that any misdemeanor
or felony convictions that are job related would not qualify
an applicant for the position, but the time she did not
know. Client wanted a diverse pool of candidates for a job
position. Therefore CP was considered for the position. A
criminal background check occurs after a face to face
interview has taken place, after the applicant meets the
criteria of the client company, and when the offer for the
position has been extended and accepted by applicant.
-AITS Practice targets Black Applicants w/ prior
convictions42 USC 1981 (b), 42 USC 2000e-2 et seq
-8DE 122 page 4 @ 4(b)b. Genuine Issue: In this case, defendant staffing
agency's own registration process was terminated and has
created a disparate impact on formerly incarcerated
African American plaintiffs future employment
opportunities with defendant staffing agency. Plaintiff
now resides in Virginia and defendant has expressed
access to job opportunities in Virginia as well as the RTP
area. DE 114-2 page 3 @ answer 2 and 2(a), Exhibit
Z8-Maritime v. EEOC- the record plausibly suggests that
the employer has engaged in a practice or pattern of
discrimination that adversely affects other employees
(applicants) emphasis mine....
DE 122 @ page 4 #4 cc. Genuine Issue: Although defendant states it had
already submitted 3 more qualified candidates, it seems
that if evidence of this existed it would have been
provided to EEOC at some point in 2015-2016 and
throughout the discovery process. It has not.
DE 114-3 pages 10-15- ITS Exhibit 4 presented with
Motion for Summary Judgement:
Candidate 1 referred to Lee Air on Oct 8, 2014 7:13 pm
Resume for Candidate 2
Resume for Candidate 3
DE 114-3 page 3 @ 11-12, ITS states:
11.1 believed the other three candidates, AngelaV.,
NatashaH., and ChristinaK, were more qualified than Ms.
Massenburg for the client’s open position. ^Once ITS had
-9"identified three qualified candidates and referred
them to the client", I did not intend to refer anyone
else."_On the following Monday, October 13, the client
emailed ITS to arrange interviews of two candidates,
which email is attached as Exhibit 8
12. When I saw Ms. Massenburg’s application, I also
noted that Ms. Massenburg had scheduled an
appointment for the afternoon of October 10, 2014.1
called her to discourage her from coming in for the
interview, which I believed would be a waste of her time
DE 166-5 pages 1-8-ITS Exhibit G shows the previous
statement to be false and the reason for the telephone call
to also be false.
*My interview was scheduled for Oct. 10, 2014 @ 3pm,
ITS (Hunt) called and cancelled the interview around
11:15 am Oct 10, 2014, after receiving my application
revealing a 1997 conviction
Candidate 1 referred to Lee Air on Oct 8, 2014 7:13 pm
Candidate 2 referred to Lee Air on Oct. 10, 2014 3:03 pm
Candidate 3 referred to Lee Air on Oct 13, 2014
11:27 am
DE 114-3 page 9-ITS Exhibit 3-The closing date for the
position was Close of Business, Oct 10, 2014 (5pm?)
DE 114-3 page 20-ITS Exhibit 8-Lee Air reached out to
schedule interviews on Oct 13, 2014 9:39 am
-10DE 122 page 3 @ I (a) (4)-The employer continued to seek
applicants with similar qualifications-DE90
* The 3rd candidate referral position remained open until
Oct 13, 2014 11:27 am
*Telephone call was made to determine my race before
cancelling the registration process. ITS cancelled the
interview and began looking for a 3rd candidate. How
does one "discourage" anyone from coming to an
interview, with a staffing agency, without stating a
reason? She never said the position was no longer
available, never asked if I could bring a resume with me,
never asked about character or employment references,
never offered to reschedule registration for other
opportunities (although we now know the 3rd candidate
position was still available). ITS' referral practice weeds
out "black/minority applicants with prior convictions" 42
USC 2000e-2(b), In CONNECTICUT v. TEAL, U.S., No.
80-2147, 452-456, This court held: The principal focus of
703(a)(2) is the protection of the individual employee;
rather than the protection of the minority group as a
whole. To suggest that the "bottom line" may be a defense
to a claim of discrimination against an individual
employee confuses unlawful discrimination with
discriminatory intent.
The Fourth Circuit also upheld the district court
finding that because one of the candidates was black, no
discrimination took place. Business necessity is the
touchstone, not racial balance. This reasoning is also
flawed as a defense where the subject position is
-11concerned and flawed as a defense where registration for
future employment opportunities with respondent staffing
agency are concerned.
Adverse impact to minority employment
opportunities from these types of discriminatory
employment practices in minority communities tend to be
significant because of the highly disproportionate rate of
"convictions" between white and minority individuals,
especially in the service areas of respondents: District
Court DE 87-13-Statistics from NC Public Safety show:
*In 1998-Durham County Convicted 747 minorities and
99 Caucasians/ Wake County convicted 1,552 minorities
and 443 Caucasians.
*In 2014-Durham County convicted 375 minorities and
60 Caucasians/Wake County convicted 1,381 minorities
and 513 Caucasians.
*From Nov. 1, 2016 thru Oct. 31, 2017, Durham
County convicted 416 minorities and 80 Caucasians/
Wake County convicted 1,442 minorities and 508
Caucasians
These statistics show, consistently in the regions both
respondents operate in that minorities are convicted triple
times or more than the rate of Caucasians (District Court
DE 87-13-NC DPS Conviction Statistics).
B.ITS is a Staffing Agency-There is no justification
for cancelling access to future opportunities with
-12no assessment to determine business necessity, as it
does for other similarly situated applicants.
Disparate Treatment- A disparate-treatment case must
establish that the defendant had a discriminatory intent
or motive,’ disparate treatment arose claim arose from
initial Disparate Impact-disparate-impact claim
challenges practices that have a ‘disproportionately
adverse effect on minorities’ and are otherwise unjustified
by a legitimate rationale.” Inclusive Cmtys., 2015 WL
2473449, at *3, FRCP. 15 (c)(1) (B), 42 USC 2000e-2 (a),
(b), 42 USC 1981 (b), 42 USC 2000e-2 (k) et seq, N.C. Gen.
Stat. Article 49A § 143-422.2,
id DE 122 page 9 @ 6a -Defendant also asserts that
defendant has referred applicants to this client who had
histories of criminal convictions, at least 1 (one) of whom
was hired by the client.
a. Genuine Issue: Defendant has not presented any
evidence to verify this statement. Even if this is true why
was I not allowed to complete the registration process for
future opportunities? Given the internal inconsistencies
and falsity of many of the defendant's statements and
failure to submit evidence to support its own position long
before we entered the court (EEOC claim filed January 7,
2015 and Notice of Right to Sue issued November 16,
2016) and redacted documents to this effect during
discovery, any trier of fact would find that without
evidence what are we to believe?
DE 114-3 page 4 @ 14
As part of its defense, ITS also says: "I am aware that this
-13particular client hired at least one candidate with a
criminal history. In my experience, this client does not
disqualify candidates solely on the basis of a criminal
history. I am not aware of any client of ITS that would
disqualify candidates solely on the basis of their criminal
history. I would never have told Ms. Massenburg that a
criminal history would disqualify her from the position."
Compare: District Court DE 114-3 page 4 @#14 v. DE
124-6), (Compare: DC/DE 114-3 page 4@ 16 v. DE
124-16).
DE 122 page 6 @# 7
7. Genuine Issue: Defendant practice: My resume, the
telephone interview based on my resume and the
progression to the next step of defendant's registration
process "face to face interview" implies that I met the
employability standards of defendant staffing agency,
until my application was received the very next morning
which revealed I had been convicted of a crime in 1997.
There were no questions asked to determine "job related",
request professional references or anything else for that
matter. Year of conviction was noted on the application
(1997) not 2001 as footnoted on DE 115@ page 7
ITS also states: ITS is committed to complying with the
law. ITS cannot recall an instance where any applicant
was disqualified from consideration after they fully
disclose a criminal background. ITS is aware that many
applicants with criminal backgrounds have been referred
and hired by clients. (DE 114-2 page 3 answer to (c).
-14ITS states it never received my resume
*No need to cancel registration process, I could have
brought a resume with me, if I knew I needed to. ITS'
purpose for the call was to "determine my race" and
consequently, "discourage me" from completing the
registration process". They got my contact information
from the resume they found online. The recruiter did the
telephone interview line by line from my resume. (DE
124-24, 25-resume and references).
District Court DE 33 page 4 @ 11(1), (2), (3)
1. KATHERINE W., RECRUITER FOR ITS, INC.,
CONTACTED ME TO KNOW IF I WOULD BE
INTERESTED IN A DISPATCHER POSITION THEY WERE
ATTEMPTING TO FILL. THE POSITION WAS FOR A
CLIENT IN .DURHAM, NC. I ASKED HER TO CLARIFY
WHO SHE WAS AND WHERE SHE GOT MY
INFORMATION, AS I HAD NEVER HEARD OF "ITS"
BEFORE THIS DAY. MS. WHITE EXPRESSED SOME
DIFFICULTY IN FINDING CANDIDATES WITH AS MUCH
DISPATCH EXPERIENCE AS I HAVE (4.5 YEARS
POST-RELEASE) AND THAT SHE HAD GOTTEN MY
RESUME FROM THE WORLDWIDE WEB. SHE STATED, I
WOULD BE '"A PERFECT FIT" FOR THE POSITION.
2. *ONE COULD ASSUME MS. WHITE HAD
EXHAUSTED THEIR OWN DATABASE OF
POSSIBILITIES SINCE THEY (ITS, INC.) ARE A
STAFFING AGENCY AND HAD TO CONSULT THE WEB
IN AN EFFORT TO FILL THIS POSITION. ).
3. * ("PERFECT FIT") IS ALSO LANGUAGE USED BY
ASHLEYH. AT OCTOBER 27, 2016 EEOC HEARING
WHEN REFERRING TO THE CAUCASIAN CANDIDATE
SHE DID SEND TO THE CLIENT from ITS's database.
-15District Court DE 33 page 5 @#6
id. 6. AROUND 8:15-8:30 THE NEXT MORNING (PRIOR TO
THE START OF MY WORKDAY), I CALLED "ITS" TO
MAKE SURE THEY HAD RECEIVED EVERYTHING THEY
NEEDED FROM ME, THE RECEPTIONIST (MUCH
OLDER SOUNDING WOMAN) ASKED ME TO HOLD,
RETURNED AND INFORMED ME SHE HAD
EVERYTHING THEY NEEDED AND REMINDED ME TO
BRING THE 2 FORMS OF ID AND SHE WOULD SEE ME
AT 3PM.
District Court DE 124-30-EEOC Document - Plaintiffs
Summary of events @ par. 5
* The next morning, I called ITS around 8:30am to make
sure they had received everything. The receptionist {much
older sounding woman) asked my name and asked me to
hold while she checked, she returned and informed me
that she received the information and all I would need
was to bring 2 forms of ID to my 3pm appointment.
DE 122 page 15 @ e
e. Genuine Issue: Defendant has not offered any
"reason" for terminating its registration process for
plaintiff's future job opportunities with defendant staffing
agency when it cancelled the face to face interview. DE
114-3 page 8 Exhibit 2, DE114-2 page 11 @ #7(f)
4. Defendant testifies that it never got my resume and
was never told about my dispatcher experience.
. a. Genuine Issue: This statement is highly
unbelievable. Defendant's screening process (DE 114-3
page 8 Exhibit 2) states:
ITS performs the following screening process on each
-16candidate once an interview time is set at no additional
charge:
• Face to face interview with two ITS staffing
professionals
b. Genuine Issue: Defendant's screening process raises
the question of whether my
resume had been submitted to the client after the
telephone interview.
c. See also DE114-2 page 10 @ answer 3 and Exhibit PL
Defendant states that even if it had known of my
dispatch experience she would not have considered
it because:.
DE 122 page 16 @ 5a (1)
5. Defendant states that even if it had known of my
dispatch experience she would not have
considered it because:
a. It was in an unrelated industry
1. Genuine Issue: See Christina K's resume, 1
year dispatch experience from 2011-2012 in the food
industry (DE 114-3 page 15)
DE 122 page 2 @ par. 3
My EEOC complaint and Amended Complaints questions
the "non-discriminatory" reason and "business necessity"
for ITS, Inc.'s decision to halt the "face to face interview"
for the position at issue; which in turn halted the
defendant's "registration process" for plaintiff to be
-17considered for future job opportunities within its staffing
agency. (Exhibit K, DE33 @ par. 12 sub 2, DE 109 @ 7)
(DEI 13 @ 3 and 4)
*My 4.5 years of dispatch experience was in the
transportation industry where I managed 80 to 100
drivers at any given time, arranged on time scheduled
pick-ups and timely unscheduled pick-ups in the Wake,
Durham and Orange County regions. I also processed
weekly franchise payments, maintained accurate records
of incoming calls while dispatching drivers and
maintaining an orderly rotation of the board and
regularly arranged CSX passenger pick-ups from highway
mile markers. The recruiter knew this, because we had a
conversation. She scheduled me for the 3rd candidate slot
because I was a quality candidate.
*Christmas v. N.C. Dep't of Admin., 2011 U.S. Dist.
LEXIS 52300, *22-23, 2011WL1870236 held: Plaintiff
need not prove that she was the superior candidate, but
instead need only produce "evidence that the employer's
proffered reason was not the actual reason relied on, but
was rather a false description of its reasoning- albeit one
based on a real difference in qualifications?)
Manufactured after the fact." Dennis v. Columbia
Collection Med. Ctr., Inc., 290 F.3d 639, 648 n.4 (4th Cir.
2002) (citing Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 147, 120 S. Ct. 2097, 147 L. Ed. 2d 105
(2000); Burdine, 450 U.S. at 255).
C.The Fourth Circuit upheld the district court
finding that I did not respond to ITS' compliance
-18with NC Negligent Hiring Laws defense
NC Negligent Hiring Laws-North Carolina Equal
Employment Practices Act ("NCEEPA"), N.C. Gen. Stat.§
143-422.2. [l]t is the public policy of this State to protect
and safeguard the right and opportunity of all persons to
seek, obtain and hold employment without discrimination
or abridgement on account of race, religion, color, national
origin, age, sex or handicap by employers which regularly
employ 15 or more employees. Cox v. Lowe's Home Ctrs.,
LLC, 2015 U.S. Dist. LEXIS 155296, *7, 2015 WL
7288689
Responses:
DE 122 page 13 @ 5a, b, c5. Defendant asserts that not all ITS's clients elect to
conduct criminal background checks and ITS is in the
business of referring "quality candidates" for its
clients to hire, to meet the basic standards for a
"reasonable investigation" and to determine whether
additional investigation may be needed to avoid negligent
hiring liability for the client.
a. Genuine Issue: The fact that "not all" of ITS's clients
elect to conduct a criminal background check begs the
question of why I was called "to be discouraged" from
coming to complete the "registration process" whether for
the Dispatcher position or some future opportunity. DE
114-2 page 11 @#7(f)
b.Genuine Issue: ITS, Inc. is in the business of referring
"quality" candidates? I was deemed to be a "quality"
-19candidate before the application arrived on October 10,
2014 and revealed a "1997" conviction. This feels very
much like a bias stereo typed opinion of formerly
incarcerated individuals. Had any of defendant's
"reasonable investigation" measures been applied beyond
the broad application question and answer, and the
telephone call to "discourage" me from completing the
registration process not happened, and the face to face
interview not been cancelled, we wouldn't be here.
Proceeding with the face to face interview "registration
process" would have afforded the defendant an
opportunity to conduct the "reasonable investigation".
Certainly a 1997 conviction would warrant further
questions from defendant who has certified that it is
compliant with Federal and State anti-discrimination
employment laws. DC/DE 114-2 page 27 @#18 b
*Even if NC Negligent Hiring Laws condoned Blanket
Discrimination of previously convicted applicants, which
it doesn't, 42 USC 2000e-7 states that State and local
laws or regulations are preempted by Title VII if they
"purport to require or permit the doing of any act which
would be an unlawful employment practice" under Title
VII. Business Necessity is the touchstone and requires an
individualized assessment of some sort.
* Did my "quality" or "qualification" drop when
Hunt saw a 1997 conviction? Biased Statement.
I never asked Hunt about a criminal background
check
id DE 114-3 page 3 @ 13
13. Ms. Massenburg had asked me whether a background
-20check was required. I told her that the client required a
background check but I did not know the specifics of the
client s criteria. However, no criminal background check
of any candidate would take place unless he or she was
given a conditional offer of employment by the client.
DE 122 page 5 @ 6a
6. Plaintiff was deemed qualified for the dispatcher
position on the evening of October 9, 2014 when she was
contacted by defendant based on information contained in
my resume that was found on line and after the telephone
interview, a face to face interview was set. Exhibit H2 @
paragraph 1, DEI 14-2, page 10 @ answer (3), Exhibit
Pl-My resume, Exhibit K
a. Plaintiff testified that White had already informed
plaintiff during the telephone interview that she thought
this client would want a 7 year back ground check; this
was not a problem for me. We proceeded. Exhibit
RR-EEOC document: Summary of Events, paragraph 2
District Court DE 33 page 5 lines 2-17
SHE NEXT INFORMED ME THE CLIENT WOULD RUN A
BACKGROUND CHECK (TO WHICH I RESPONDED HOW
FAR BACK DOTHEY GO? SHE SAID SHE THOUGHT 7
YEARS-IS THAT A PROBLEM? I SAID NO). AT THIS TIME
I WAS STILL A "PERFECT FIT" FOR THE POSITION MS
WHITE WANTED TO SET AN APPOINTMENT FOR ME TO
COME INTO THEIR OFFICE THE NEXT MORNING TO
FINISH UP AND GET ME READY TO INTERVIEW WITH
THE
-21CLIENT THE FOLLOWING MONDAY (I RESIDED IN
DURHAM, NC AND SHE WANTED ME TO BE ABLE TO
GO STRAIGHT TO THE LOCATION).
District Court DE 124-30 EEOC Document
(Summary of Events @ par. 2)
*We embarked into what was referred to as a telephone
interview". I answered several questions which detailed i
typical day for me when I was a Dispatcher regarding
equipment used, #of people on roster at any time, my
comfortability level working independently, scope of
geographical region covered, had I been convicted of a
felony in the last 7 years and reason for leaving the job I
was "still perfect for the position" at this time.
Eve“ ^1 had asked>/1 had no need to) Hunt's answer
would have had to indicate the check would go back 17
years or longer. Had she not “cancelled” the interview I
would have showed up to register for other opportunities.
1 had already cleared my afternoon. Hunt called to hear
my voice and determine my race before deciding whether
or not to proceed. She cancelled the interview and began
looking for a 3rd candidate. (DE 114-3 page 3 @ #11)
District Court DE 124-6 v. DE 166-4 page 1-also provided
to me on September 2, 2018 by ITS)
III. The Fourth Circuit Court of Appeals
erroneously upheld the dismissal of my right to
jury trial for the 42 USC 1981(b) legal issues under
the premise that the Title VII claim provided the
exclusive remedy. In Lytle v. Household Mfg., Inc.
494 U.S. 545 (1990), this court held: that the dismissal
-22of the § 1981 claims was "apparently erroneous" because
the Title VII and § 1981 remedies were separate,
independent, and distinct. See App. 4 (District Court
Order- finding that Title VII and § 1981 are the same)
Based on the evidence presented: None of ITS' proffered
after the fact reasons to justify its discriminatory decision
made on October 10, 2014 when it made the call to
"discourage me" (cancel) from completing ITS' registration
process which was necessary to 1) be referred for the
Dispatcher position and necessary to 2) be considered for
any future employment opportunities. By way of process
of elimination of ITS' many failed excuses at a
non-discriminatory reason for the call that terminated the
registration and referral process, we now know the call
was made to determine my race before Hunt made the
discriminatory decision to terminate its entire
registration process on sight of a 1997 conviction on a
2014 application, no questions asked to determine
business necessity, just my race. When this type of
discrimination is at work there will be no referral and no
conditional offer of employment. This terminated my
right, pursuant to 42 USC 1981(b) to “Make and enforce
contracts” defined for purposes of this section, the term
“make and enforce contracts” includes the making,
performance, modification, and termination of contracts,
and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.
-23-
It is plausible to infer, that "being black" with a criminal
history is the cause for the disparate treatment I
experienced. Since both respondents have hired similarly
situated applicants. (DE 114-2 page 14 @ answer 4). It is
clear that, with the falsely justified telephone call from
Hunt, this discriminatory practice weeds out black
applicants with prior convictions. 42 USC 2000e-2(a), (b).
establishing discriminatory intent or motive.
* A "plaintiff can prove pretext in two ways: (1) indirectly,
by showing that the employer's proffered explanation is
'unworthy of credence" because it is internally
inconsistent or otherwise not believable, or (2) directly, by
showing that unlawful discrimination more likely
motivated the employer." Evidence shows that unlawful
discrimination more likely motivated ITS' decision
because the proffered explanations are 'unworthy of
credence" because it is internally inconsistent or
otherwise not believable. Nothing in the record suggest
that a jury would not come to the same conclusion.
Employment Opportunities/ Contractual
Employment42 USC 1981(b), 42 USC 2000e-2(b)-42 USC
2000e-2(a)(2), 42 USC 2000e-2k et seq.
DE 114-3 page 7, par. 3, 4 and 6- Lee Air and ITS
Service Agreement:
Par. 3-ITS is the employer of record for all temp and
temp-to-hire candidates during their assignment Should
you decide to convert the candidate to your payroll prior
-24to 540 hours conversion fee equal to 1% per thousand up
to maximum of20% of the candidates annual salary will
be billed less gross margin credit for hours already
worked If the candidate works 540 hours there will not be
conversion fee
Par 4-ITS will invoice clients weekly and payment Is due
upon receipt Clients who do not submit credit applications
or are not deemed credit worthy will be billed COD until
credit application is submitted and br credit worthiness is
established ITS has the right to charge 14% service fee on
any outstanding account balance over 30 days past due
Par. 6-All ITS candidates have an unconditional first day
guarantee. If for any reason your expectations have not
been met and exceeded on the first day. ITS will find a
suitable replacement and the client will not be billed for
the first day (up to 8 hours). All guarantees require
payment according to invoice terms.
*ITS' discriminatory practice had an adverse and
terminating impact on petitioner's opportunity to enjoy
contractual employment opportunities and career growth.
In the regions that respondents operate in, the conviction
rate of minorities in 1988, 2014 and 2017 are consistently
just below triple that of Caucasians. With no
individualized assessments, this practice has a
disproportionately adverse effect on minorities’, as it did
for Massenburg. A disparate-impact claim challenges
practices that have a ‘disproportionately adverse effect on
minorities’ and are otherwise unjustified by a legitimate
rationale.” 42 USC 2000e-2(a)(l)(2), 42 USC 1981 (b), 42
-25use 1981a 42 U .S.C. § 2000e-2(k)(l )(A)(i). A disparate
treatment claim requires a showing of discriminatory
motive or intent.
Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990)
held:
1. The Seventh Amendment precludes according
collateral estoppel effect to a district court's
determinations of issues common to equitable and legal
claims where the court resolved the equitable claims first
solely because it erroneously dismissed the legal claims
Pp. 494 U.S. 550-556.
(a) But for the dismissal of Lytle's § 1981 legal claims he
would have been entitled to a jury trial on all issues
common to them and his Title VII equitable claims, Curtis
v. Loether, 415 US 189, 415 U.S. 196, n. 11,
Page 494 U. S. 546
and the jury would have been required to resolve the legal
claims before the court considered the equitable
claims, Beacon Theatres, Inc. v. Westover, 359 U.S. 500,
359 U.S. 510-511; Dairy Queen, Inc. v. Wood, 369 U S
469, 369 U.S. 473.
TV. The Fourth Circuit erroneously upheld the
district court’s dismissal of my retaliatory Fair
Credit Reporting Act violation claim, falsely stating
that I had not submitted evidence in support of the
claim.
-26*Euidence was submitted for the third time, in response to
ITS’ Motion for Summary Judgement. See: DE 97-29page
4 paragraph 3, DE 98-1 page 11-13, DE 124-16 Par. 3
*District Court refers to information obtained in
documents which violated FCRA, in a retaliatory
manner. 15 USC 1681a (o)(5)(C)(i)(ii), 42 USC 2000e-3a,
42 USC 1981
*DE 98-3 page 13 shows the unauthorized notice and
release. I don't fill those out until I have had an
opportunity to discuss the fact that I am not sure of what
charges they might find. My reason is I don't want anyone
to think I was intentionally, less than truthful. I am
surviving my past and my focus demands that I move
forward from it all-I have not checked to see what is
there, I know there is nothing there beyond minor traffic
violations since the 1997 convictions.
In McKennon v. Nashville Banner Publishing Co., 115
S.Ct. 879, 65 EPD Par. 43,368 (1995), This court held:
that the ADEA, Title VII, the EPA and the ADA reflect "a
societal condemnation of invidious bias" and that; [t] he
private litigant who seeks redress for his or her injuries
vindicates both the deterrence and the compensation
objectives of the [statutes]," the Court concluded that an
employer must be held liable when it is found to have
engaged in unlawful discrimination, despite any later
discovered evidence of any employee misdeeds. 115 S.Ct.
at 884 .
-2715 USC 1681a (o)(5)(C)(i)(ii)
(C) the person who makes the communication(i)-discloses in writing to the consumer who is the subject
of the communication, not later than 5 business days after
receiving any request from the consumer for such
disclosure, the nature and substance of all information in
the consumer's file at the time of the request, except that
the sources of any information that is acquired solely for
use in making the communication and is actually used for
no other purpose, need not be disclosed other than under
appropriate discovery procedures in any court of
competent jurisdiction in which an action is brought; and
(ii) notifies the consumer who is the subject of the
communication, in writing, of the consumer's right to
request the information described in clause (i)
15 USCA § 1681p-Claims have statutes of limitations
and must be brought earlier of two years after the
consumer learns of the violation or five years after the
violation occurs, with no exception. The statute of
limitations begins when the consumer becomes aware of
the facts that give rise to the violation.
id-DE 122 page 13 @ 5 c
c. Genuine Issue: In November 2016, Defendant had no
problem running and providing an uncertified, unverified
copy of plaintiffs background report to the EEOC after
the final fact finding conference and after refusing
settlement discussions on October 26, 2016. Exhibit
MMl-My Criminal background furnished by Respondent,
-28-
Despite ITS' continued denial. DE 114-3 page 4 @ 16- ITS
Statement that it didn't run background. *App 8-MMl is
DE 97-29 page 4 paragraph 3
&L I filed a Motion for leave to Amend Complaint
DE 97, Memorandum in support DE 98, and Proposed
Complamt DE 97-2 adding the retaliation and
the FCRA claim against ITS. Pursuant to FRCP
15(c)(1)(b), 15 (d), and Scheduling Order, on March 8
2018. Consent from ITS was denied. (Email attached).
1 he Motion for Leave to Amend Complaint and
accompanying documents remained pending until the
order was issued granting ITS' Motion for Summary
Judgement was granted, on February 4, 2019. On May 15
2018,1 was granted permission (App 6) to amend
complaint adding Lee Air as defendant, no NEW claims
against ITS. I added Lee Air to the pending Proposed
Amended Complaint and corrected the FCRA Statutorv
Code-DE 128-12 -DE 128, May 30, 2018. It also remained
pending until Motion for Summary Judgement was
granted on February 4, 2019.
*See: DE 98-1 page 11 paragraph 3 (documents that
reflect a criminal background check by a Respondent,
notes from a fact finding conference, and memoranda
regarding subpoena requests are not properly withheld
pursuant to this exemption)
ITS Criminal Background Check Policy is to run a
background check only after a conditional offer of
employment has been made and accepted. Although ITS
performed no individualized assessment to determine
-29business necessity or implement the reasonable
investigation necessary to determine if further
investigation would be necessary before barring an
applicant from registering with its staffing agency and
destute respondent ITS' continued denial, evidence show's
1 . owner
no issue with running my background
without my permission and with no notification to me’
that it had done so, as the requestor of consumer
information is required to do pursuant to the Federal
Consumer Reporting Act., (15 USC 1681a (o)(5)(C)(i)(ii))
it then disbursed this unverified and legally protected
information to EEOC AFTER refusing, for almost 2 years
to provide the name of Lee Air who ITS stated, at the
EEOC stage, set the requirement that no misdemeanor or
ielony would qualify a candidate for the position AFTER
refusing any settlement talk on October 26 2016 at the
request of EEOC but BEFORE the Notice of Right to Sue
was issued on November 17, 2016.1 became aware of this
in October 2017 while reviewing documents to be used in
sustaining my claim.
ITS ran the report on October 27, 2016 (15 USC
1681p), the day after refusing any settlement talk with
myself and EEOC. They ran it again in early November
going even further back in time. EEOC referred to this as
an unwarranted invasion of privacy-DE 98-1 page 12,
There was no litigation in progress requiring discovery
(which also requires that I be notified by the requestor of
the information) and ITS wasn’t a prospective employer
11S used information from my application to falsely
obtain and disburse unverified information to the EEOC
Public Portal'in a r etaliatory attempt at inflicting its
own
-30biased, poisonous and stereotyped opinion to sway EEOC
decision makers to overlook its discriminate, terminating
referral decision made on October 10, 2014 with an
illegally acquired report that shows no criminal activity
since my conviction in 1997.
In: In re Horizon Healthcare Services Inc.
Data Breach Litigation, 846 F.3d 625, 641 (C.A.3 (N.J.),
2017, This court held: So the Plaintiffs here do not allege
a mere technical or procedural violation of FCRA. 21 They
allege instead the unauthorized dissemination of their
own private information 22-the very injury that FCRA is
intended to prevent. 23 There is thus a de facto injury
that satisfies the concreteness requirement for Article Ill
standing. 24 See In re Nickelodeon, 827 F.3d at 274
(concluding that the "unlawful disclosure of legally
protected information" in and of *641 itself constitutes a
"de facto injury"). Accordingly, the District Court erred
when it dismissed the Plaintiffs' claims for lack of
standing. 25 Our precedent and congressional action lead
us to conclude that the improper disclosure of one's
personal data in violation of FCRA is a cognizable injury
for Article Ill standing purposes.
The risk of harm is great. Who knows where
else the report has been distributed. My most recent
previous employer suddenly set out to create "a false
pattern of behavior" which directly opposed, verbatim, the
positive statements made in the reference letters I
submitted with this case, despite the telephone recordings
that don't line up with the documentations. My stress
levels went off the charts as I pursued justice beyond
EEOC. I was hospitalized, at the end of July 2017 , as a
-31result of these manipulation tactics and the needless
extension of this matter. After a bunch of
tests to rule out a number of possibilities that would
cause me to present the way I did. It was stress,
dangerously high
, level of stress. I had never experienced
anything like that in my entire life. It has monopolized
my tune, effected my job performance, my income, my
?eb**to maintain my property, every area of my life.
(See DE 97-38-Doctor's statement).
*Causal Link: Plaintiff alleges that her filing of the
c arge and effort to sustain the charge of discrimination
against defendant ITS, Inc. is the causal link and
protected activity that provoked the willful and repeated
acts ot refusing to submit information proving or
disproving "its own admissions" during EEOC
investigation, from January 9, 2015-October 27, 2016
Knowing all that we know now about ITS' discriminatory
iring practices, this means the last 5 years of extensive
damages to me have been motivated by ITS owner,
Hunt s, personal spite and a desire for revenge and her
actions towards me were conducted "in a manner which
showed reckless and wanton disregard of the my rights. I
am definitely feeling dissuaded and intimidated at the
thought of ever doing this again.
McKennon v. Nashville Banner Publishing Co
i15tiCtA8nPA6tEPD Par‘ 43,368 (1995)’ This court held:
that the ADEA, Title VII, the EPA and the ADA reflect "a
societal condemnation of invidious bias" and that;[t]he
private litigant who seeks redress for his or her injuries
vindicates both the deterrence and the compensation
objectives of the [statutes]," the Court concluded that an
employer must be held liable when it is found to h ave
-32engaged in unlawful discrimination, despite any later
discovered evidence of any employee misdeeds
115 S.Ct.
at 884 .
Since the interview was cancelled, I never signed ITS'
release form, ITS' policy is to only run criminal
background checks after a conditional offer of employment
and there was no litigation in progress requiring
discovery, I am not all together sure why the District
Court felt it necessary to mention a charge from 1997
without also mentioning that I have had no more trouble
tlieiJ;Tor the fact that 1 testified at deposition to the
effect of: I was told" something about it-I was apparently
found guilty because I was there, sitting in my car-alone
and found to be guilty by association for something I had
no knowledge of as the Judge in the case stated he would
show me what yall do with educated northerners around
here. Nevertheless, I stood accountable for it then and
still am today, apparently. This case is about my Civil and
onstitutional Rights being violated 17 years after my
conviction and exercising my right to pursue
discrimination free employment opportunities,
with
evidence.
*The court also mentions that "I believe" I have not gotten
jobs because of my record. I'm not sure of the relevance
here but I know this to be true-its why we are all here.
V. This court must solve the conflict within the
Fourth Circuit where previous rulings, have
allowed claims "arising from" or "relating back" to
the actionable EEOC intake questionnaire to serve
as a charge” for the purpose of establishing the
-33-
limitations period and the shared interest
exception. Fed Rule of Civ. Pro. 15 (c) (1) (B)
1. The Fourth Circuit erroneously deemed claims
against Lee Air to be time barred. In Federal
Express Corp. v. Holowecki, 552 U.S. 389
(2 n0?’
C°Urt held: an EE0C intake questionnaire
wiU be deemed a charge if it contains “the information
required by the [EEOC"s] regulations, i.e., an
allegation [of discriminatory conduct] and the name of the
charged party, ’ and can be “reasonably construed as a
request for the agency to take remedial action.” Several
district courts in the Fourth Circuit have applied the
"identity of interest" set forth by the Third Circuit in Glus
to determine whether a defendant had notice of the EEOC
charges and participated in the conciliation process. In
Olvera-Morales, the Fourth Circuit acknowledged and
found that identity of interest existed. The claim against
the unnamed party was dismissed because
Olvera-Morales had legal representation at the time of
the EEOC filing. Olvera-Morales v. lnt'I Labor Mgmt
Corp., No. 1:05CV00559, 2008 WL 939180, at *1-2
(M.D.N.C. Apr. 4, 2008), Fed Rule of Civ. Pro. 15 (c) (1)
(B). Petitioner, Massenburg is and has been
unrepresented by council since the beginning. 42 USC
2000e-2 (c)(3) et seq. 42 USC 1981(b), 42 USC 2000e-2 (k)
6t Se<33^ ^ ^6n ^tat Article 49A § 143-422.2, App. 3
2.
. Lee
, . Air was added as Joint Employer respondent
in this case on May 15, 2018, pursuant to FRCP
20(a)(2). DE 128 page 11-12 @ Claim 2
-34District Court DE 125 Order and DE 86-Motion for
Joinder which was construed as Motion for Leave to
mend Complaint was issued while March 8, 2018 Motion
tor Leave to Amend Complaint pursuant to Fed Rule of
Civ. Pro. 15 (c) (1) (B) was pending before the court)
The service contract between Lee Air and ITS establish a
joint employer relationship.
Lee Air was referred to on the face of the Charge as
client", DE 98-1 page 5-Intake Questionnaire-shows
Employer and Employment Agency boxes checked,
f°Uno the Charge actl°nable-See District Court DE
7-12 page 2-3-EEOC Subpoena for the Name of Lee Air
and other information. Lee Air referred to as Unnamed
Client on each filing District Court from Feb ruary 2
2017- Initial Disclosures
* District Court DE 124-20: EEOC Guidance
915.002-Discriminatory Assignment Practices @
mnployers ^Remedies # 7 establishes liability for both
42 U.S.C. § 2000e-2(a),(c)-2(m)
When ITS thought the charge of discrimination would
not be pursued beyond EEOC, her statement lined up
np iS7VldenCe- °istrict Court DE 124'6 Par 3 lines 3-6
DE 166-4 page 1 shows Lee Air National Background
Check criteria with no timeframe or other specifics
District Court DE: 35-1 EEOC Assessment Form
DE 114-3 page 5 @ 5a-Hunts EEOC Statement
-35, ' <?e™me *ssue; Defendant answered with specifics as
to the 2 candidates" who were submitted for the position
one was Caucasian and one was African American.
Exhibit HI @ last paragraph, Exhibit H3
a. Exhibit H2 @ paragraph 3 @ lines 3-6-"defendant did
not know Lee Air's background check criteria at the time
but now knows that any misdemeanor or felony that is iob
related would not qualify an applicant for the position"
but at the time she didn't know". DE 115 page 6 line ’
19-21
S. The 4 factors previously used by several district
courts m the Fourth Circuit to determine subject
matter jurisdiction were not applied.
In Olvera Morales v. Int'l Labor Mgmt. Corp No
1:05CV00559, 2008 WL 939180, at *1-2 (M D N C Anr 4
2008) and Butler v. Drive Automotive Industries of ? '
America, Inc., the US Court of Appeals for the Fourth
lrcuit held that a staffing agency and its c lient may be
liable under Title VII of the Civil Rights Act of 1964 (Title
VII), 42 USC 1981 (b) and 42 USC 2000e-2 (k) et seq as
joint employers and that it will apply a combination of the
control test from common law agency principles with an
economic realities test when evaluating whether entities
are joint employers under Title VII. The test to be applied
a) Whether the role of the unnamed party, could through
reasonable effort by the complainant, be ascertained at
the time of the filing of the EEOC complaint;
-36I checked both the employer and employment agency
, Tm£n the Intake Questionnaire and referred to Lee Air
as ITS client" on the face of the Charge Form and on
each document filed with the district court until its name
was provided by ITS in Initial Disclosures, despite my
many requests for its name in the district court before
discovery began, starting with District Court DE 10 Fed
Rule of Civ. Pro. 26 (a)(l)(A)(i). EEOC found the claim to'
be actionable and sought the name of respondent Lee Air
Irom ITS from January 2015-October 26, 2016 to no
avail.
b) whether under the circumstances, the interests of a
named are so similar as the unnamed party's that for the
purpose of obtaining voluntary conciliation and
compliance it would be
unnecessary to include the unnamed party in the EEOC
proceedings;
DE 114-3 page 7 (Service agreement establishes joint
employer relationship, @ par. 7- acknowledges "any and
all claims which may arise out of or result from any
breach by ITS candidates or the client of the provisions of
this agreement", DE 114-3 @ page 21 @ EEO Statement
acknowledges employees and applicants. This is a
discrimination claim which arose from Joint Employer
relationship where ITS is the employer of record and Lee
Air provides the work location and day to day instruction.
u 6 r^r'f shared interest was represented and protected
by ITS during the EEOC process. DE 166-4 @ page 1 (Lee
Background check requirement). 42 USC 2000e-2(a)(2) et
-37seq, 42 USC 2000e-2 (c)(3), 42 USC 1981(b)
c) Whether its absence from the EEOC proceedings
resulted in actual prejudice to the interests of the
unnamed party;
DE 114-3 page 7 @ Paragraph 7 of the Service Agreement
states: Client agrees to indemnify and hold harmless ITS
and its officers directors and stockholders from "any and
all claims which may arise out of' or result from any
breach by ITS candidates or the client of the provisions of
this agreement. "Such indemnification shall include but
not be limited to attorney’s fees litigation expenses and all
other related expenses." This agreement supersedes any
previous written agreement with client. Client accepts
this agreement entirely when accepting candidate
presentations and/or resumes. ITS had a duty to inform
Lee Air of the claim against it. The fact that the people
who handled the referrals allegedly no longer worked for
Lee Air by the time contact information was provided to
me m Initial Disclosures would suggest Lee Air was
aware of the discrimination claim and was not prejudiced.
d) Whether the unnamed party has in some way
represented to the complainant that its relationship with
the complainant is to be through the named party.
Consideration of these factors should be initially in the
hands of the district court.
DE 114-3 @ pages 22-23 Individuals and Conduct
Covered/ Complaint Process-Names ITS as the point of
contact for complaints and prohibited conduct against
-38employees and applicants in work areas.
VI. Whether persons proceeding pro se should be
issued Notices of Deficiency and afforded the same
opportunity to make corrections to filings as is
offered in the lower courts to persons trained in the
law and instruction of how to arrange deposition?
Respondents, trained in law, were issued Notice of
Deficiency regarding DE 150-Lee Air and regarding DE
* Should I have been allowed to file my notarized
Affidavit when I filed my Opposition to ITS' Motion for
Summary Judgement. I asked if I could and bring the
notarized copy the next day. I was told in the clerk’s
office, no, not for this. I removed the Affidavit and drew a
line through its description. I don't think this was a fatal
error that couldn’t be corrected and re-filed, notarized the
next day.
Was it appropriate when Pro Se respondent was told to
consult my attorney when seeking instructions on how to
arrange depositions? Subsequent subpoenas and Motion
to compel (DC/DE 117, 117-1) remained pending until the
order granting summary judgement was entered.
CONCLUSION
Petitioner Massenburg and the millions of formerly
convicted minorities across the country pray this
Honorable court will correct the errors of the lower courts.
Employment practices that intentionally target and
-39disqualify minorities who have stood accountable for their
misdeeds not only, adversely effects the person but everything
attached to a human being: communities, social economies and
often, next generations. Although I am unable to monetarily
afford legal representation, I am entitled to have my rights
vindicated at the EEOC Stage and in the lower courts, minus
intentionally created technicalities. It is within this courts
power to determine if Equal Justice for All includes the pro se,
formerly convicted person seeking legal remedy to a very old
problem that congress and this court recognized decades ago.
This court continues to hold: We cannot conceive of any
business necessity that would automatically place every
individual convicted of any offense, except a minor traffic
offense, in the permanent ranks of the unemployed. This is
especially true for blacks who have suffered and still suffer
from the burdens of discrimination in our society. To deny job
opportunities to these individuals because of some conduct
which may have been remote in time or does not significantly
bear upon the particular job requirements is an unnecessarily
harsh and unjust burden. Green v. Missouri Pacific Railroad
Company, 523 F. 2d 1290, 1972 U.S. LEXIS 3007.
Respectfully submitted this 23rd day of July, 2020
Petitioner, Pro Se
PO Box 224
Blairs, Va. 24527
919.400.2033
rs Sworn to .and subsetted before me this .<* IOL- day
rQiM) Witness my hand and official seal.
X
|Notary Public
KAYLA EM0N D0NIGAN
Notary Public
Commonwealth of Virginia
Registration No. 7751223
My Commission Expires Jan 31,2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.