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Hollis v. Aerotek, Inc.

United States District Court, D. Kansas

February 24, 2015



SAM A. CROW, Senior District Judge.

Plaintiff, acting pro se, brings various civil rights and tort claims to redress an alleged discriminatory hiring practice by a staffing agency (Aerotek), its employee (Mulcahy), and its client/plaintiff's potential employer (EC Manufacturing), and an alleged failure by the EEOC and its investigator (Ventura) to properly investigate and pursue his claim against those entities.

Plaintiff has filed a motion to dismiss Defendant EC Manufacturing LLC as a party, without prejudice. ECM has not responded to that motion, but has instead filed a motion for judgment on the pleadings.

Defendants EEOC and Ventura have filed a motion to dismiss, and also seek to substitute the United States of America for them. Plaintiff has moved to amend his complaint. These disputed motions are examined below.

I. Facts

The Court states the facts as alleged in the first amended complaint (Dk. 27). On June 9, 2014, Plaintiff, an African-American male, was receiving disability benefits from the Social Security Administration but wished to supplement those benefits by working. He conducted a job search on defendant Aerotek's website, saw several job postings with their accompanying descriptions and requirements, and completed online applications for at least two jobs for which he thought he was qualified in the light industrial production/assembly field, attaching his resume. Plaintiff understood that Aerotek was in charge of the recruitment process for an unknown "start up" company based in Shawnee Mission, Kansas. Plaintiff called Aerotek on June 11th to ask whether the jobs he applied for were still available and was told to come in the next day for an interview.

When Plaintiff did so, he was interviewed by Aerotek employee Brad Mulcahy. He reviewed Plaintiff's resume and asked why Plaintiff had a four-year gap in his employment. Plaintiff replied that he was living on his disability benefits. Mr. Mulcahy then looked doubtful and began making statements such as: "I don't know if you're a good fit.... the people we recruit for will have a fit if I give them your resume or send you over."

Mr. Mulcahy then told Plaintiff he needed one or two years' minimum of production/assembly experience for the job. Plaintiff responded that Aerotek's website didn't say so, then touted his own qualifications, experience and attitute. Mr. Mulcahy responded that not all details are posted on the website, and that people like plaintiff come in all the time saying how well they will work. Mr. Mulcahy then suggested that the only way for Plaintiff to obtain employment with the company whose jobs he had applied for was for Plaintiff to work at a different job site for two or three weeks to see if he could perform the job duties. Plaintiff considers that requirement to be a "work-related medical examination, " and says he felt distressed and humiliated during the interview process. Plaintiff brings a claim of "emotional distress" against Defendant Mulcahy based on his conduct during the employment interview process.

Plaintiff also alleges that the statements made to him, the questions asked of him, and the requirements placed on him during that interview with regard to Plaintiff's hiring at EC Manufacturing violate Title VII (race) and the ADA. Plaintiff further contends that Aerotek yielded to EC Manufacturing's racial preferences. From this, one could reasonably infer that EC Manufacturing is the employer whose jobs Plaintiff had applied for. Plaintiff's claims against Aerotek and Mulcahy are based on the above facts.

Plaintiff's claims against the EEOC and Ventura arise from the following facts. On June 16, 2014, Plaintiff went to the EEOC to file a complaint of discrimination based on his experience at Aerotek described above. His case was assigned to EEOC Investigator Frank E. Ventura, who interviewed him about his complaint. During the interview, Plaintiff found Ventura's demeanor and manner of questioning to be rude, offensive, and frustrating. For example, Ventura allegedly asked Hollis why he was filing a complaint and advised him to just move on with his life since Plaintiff was hired through another staffing agency the day after his interview with Aerotek.

On July 16, 2014, the EEOC issued Plaintiff a Notice of Right-to-Sue Letter, and Plaintiff subsequently requested and received copies of his EEOC file. Upon review of that file, Plaintiff learned that the EEOC had not filed a charge against Aerotek, contrary to what Ventura had led him to believe during the interview. Plaintiff also alleges that Ventura had falsified various questions Ventura had asked and answers Plaintiff had allegedly given during his interview, as reflected in his interview notes. Specifically, Plaintiff alleges that Ventura added the words italicized below:

4. Q: Who was hired for the position you applied for? A:"How would I know? That is what you need to find out. I'm sure none of them were black.'
5. Q. How did you know that none of them were black ? A: " I just know. "

Plaintiff also claims the following italicized sentence is untrue: " CP indicated this was "racial steering" and refused to accept any position and walked out. " Plaintiff contends he never told Ventura that making him work another assignment first was "racial steering." Plaintiff agrees that he and Mr. Mulcahy never reached an agreement about jobs, but claims the two of them left his office together.

Plaintiff alleges that Ventura unduly prejudiced or compromised the integrity of the investigation not only by dissuading EEOC's upper management from conducting a full and fair hearing, but also by indirectly influencing the Kansas Human Right Commission to agree with the EEOC's findings. Plaintiff also alleges that Ventura defamed or libeled him, causing him emotional distress and violating the First Amendment. Plaintiff further claims that the EEOC's handling of his charge failed to comply with its own Compliance Manual, and violated his procedural and/or substantive due process rights.

II. Motion to Dismiss Standard - 12(b)(6) motions

To survive a motion to dismiss for failure to state a claim, a complaint must have facial plausibility.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim for relief that is plausible on its face." Id. [ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)] at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged. Id. at 556 [127 S.Ct. 1955]. The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a Defendant has acted unlawfully. Id . Where a complaint pleads facts that are "merely consistent with" a Defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'" Id. at 557 [127 S.Ct. 1955].

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, 884 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "[C]ourts should look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 n. 2 (10th Cir. 2007).

In evaluating a Rule 12(b)(6) motion to dismiss, the court is limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281 (10th Cir. 2008). But in considering the complaint in its entirety, the Court also examines any documents "incorporated into the complaint by reference, " Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007), and documents attached to the complaint, Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1189 (10th Cir. 2012) (quotations and citations omitted).

Pro se complaints, however inartfully pleaded, must be liberally construed, and are held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89 (2007). See Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005). "[The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The court should not be the pro se litigant's advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and will not accept as true conclusory allegations unsupported by factual allegations. Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir. 2001).

III. Defendant EC Manufacturing

On January 8, 2015. Plaintiff moved to dismiss ECM as a party, without prejudice, until the conclusion of discovery. (Dk. 42) No reason was stated except "good cause." ECM did not file a response to that motion, but four days later moved for judgment on the pleadings, apparently desiring that any dismissal be with prejudice. (Dk. 47). Its motion alleges that Plaintiff's complaint fails to provide sufficient notice of any claims against ECM as required by Fed. R. Civ. Pro. 8, and fails to show ...

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