Easterling v. U.S. Department of Commerce

Filing 35

OPINION AND ORDER granting in part and denying in part 27 motion to dismiss. The due process claim is dismissed without prejudice. The motion is otherwise denied. Plaintiff shall file a Second Amended Complaint without the due process claim and pursuant to the directives in the Opinion and Order within 30 days. Defendant shall file an answer to the remaining claims within 30 days of its filing. Signed by Judge John E. Steele on 10/9/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RODERICK F. EASTERLING,
Plaintiff,
v.

Case No:

2:17-cv-441-FtM-29MRM

U.S. DEPARTMENT OF COMMERCE,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss Amended Complaint (Doc. #27) filed on June 26,
2018.

Plaintiff filed a Response (Doc. #28) on July 9, 2018.
I.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).

This requires

“more

than

accusation.”

an

unadorned,

Ashcroft

v.

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.
with

a

Iqbal,

“Factual allegations that are merely consistent

defendant’s

plausible.”

action,

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted).

Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”

Iqbal, 556

U.S. at 679.
II.
Plaintiff filed a Brief in Support of Motion for Leave to
Amend Complaint (Doc. #26), which has been construed as plaintiff’s
Amended Complaint.

Plaintiff Roderick F. Easterling is an African

2

American who holds a Masters in Business Administration and a
Bachelors in Business Management, who was a government employee
for 8 years, and who was honorably discharged from the military.
In 2010, the United States Census Bureau, of the United States
Department of Commerce (Census Bureau or the Agency), hired over
one million temporary works to conduct the 2010 census.

Plaintiff

was an applicant for 7 positions within the Census Bureau.

The

application process required any applicants who had been arrested
to produce official documentation within 30 days, regardless of
its nature or age, creating a significant adverse impact upon
African Americans and Latinos.

This requirement eliminated 93% of

the applicants from consideration.

Of those that did satisfy the

30 day requirement, none were hired because all available positions
had been filled during the delay.
On October 28, 2008, plaintiff filed an EEOC complaint of
racial

and

age

discrimination

(administrative complaint).

with

the

Census

Bureau

On April 13, 2010, a class action was

filed in the Southern District of New York (New York court)
alleging that the Census Hiring and Employment Check criminal
background check process used to screen for temporary employment
had a disparate impact on protected groups.

On May 21, 2010, the

Office of Civil Rights notified plaintiff that his administrative
complaint appeared to contain similar allegations to those in the

3

class action.

Plaintiff’s administrative complaint was held in

abeyance by the Agency because the claims appeared similar.

On

June 27, 2012, the EEOC Office of Federal Operations issued a
decision

vacating

the

Agency’s

final

decision

on

plaintiff’s

administrative complaint pending the outcome of the civil action
in the New York court.
On July 1, 2014, the New York court certified a class “limited
to African-American applicants who sought temporary employment
during the 2010 Decennial Census and was caused harm by the
unlawful Census Bureau’s 30 Day Letter Adjudication Criteria.”

In

October 2014, the class was amended to include Latinos.
On April 19, 2016, the parties in the class action entered
into a settlement agreement.
granted

preliminary

On April 22, 2016, the New York court

approval

of

the

settlement,

conditional

certification for damages, approval of the proposed notice and
procedures, and set a schedule for final approval.

On July 20,

2016, plaintiff was told that his administrative complaint would
be void because of the New York court settlement.

Plaintiff was

not contacted about the class action, and he was informed that the
person responsible for contacting him was on leave.

On August 4,

2016, Adam A. Chandler, an employee of the Census Bureau, sent a
letter to that responsible person stating that plaintiff was on
the list of individuals who needed to be notified, and contacted

4

in

writing,

to

administrator.

be

told

that

they

should

contact

the

class

(Doc. #26-1.)

On September 18, 2016, plaintiff himself called the Office of
Federal Operations and was told that the responsible person was on
leave again, and that plaintiff had 24 hours to opt-in.

Plaintiff

was not contacted within a reasonable time by class administrators,
causing alleged due process violations.

On September 20, 2016,

the New York court granted final approval of the class action
settlement.

On December 12, 2016, the Agency notified plaintiff

that the time for filing an appeal from the New York court’s order
had

expired,

and

that

any

administrative

complaints

abeyance could be closed, except for any opt-outs.

held

in

On May 5, 2017,

plaintiff’s administrative complaint was dismissed.
Plaintiff alleges that he was not hired because of a “negative
suitability determination” report, which resulted in his criminal
history being disclosed when checked against the FBI criminal
database, and that his age and race were also being considered.
Based on the report, plaintiff was found to be not suitable for
employment regardless of the nature or gravity of the criminal
offense,

or

the

time

that

had

passed

since

the

conviction.

Plaintiff alleges economic losses from the Agency’s failure to
hire him to any position, including increased pay, pension, and
benefits, and emotional and physical stress from the unlawful

5

treatment he received.
the

Census

Bureau

Plaintiff alleges that the process used by

violated

his

rights

based

on

his

race.

Specifically, plaintiff challenges the criteria used by the Census
Bureau,

the

screening

practices

that

were

intentionally

discriminatory, and the disproportionate impact that precluded him
from consideration for employment. Plaintiff states that he timely
exhausted and received his right to sue letter from the EEOC, and
that he is entitled to relief under Title VII.
$600,000

in

compensatory

damages,

including

Plaintiff seek
lost

wages

and

benefits, $2 million in liquidated damages, $2 million in punitive
damages, back pay in the amount of $700,000, fees and costs in the
amount of $850,000, and injunctive relief.
III.
Defendant argues a failure to state a claim of disparate
impact and disparate treatment, that plaintiff has not articulated
a due process claim, and that plaintiff’s claims are barred by res
judicata.

In

his

response,

plaintiff

argues

that

he

has

established a prima facie case.
A. Title VII Claims (Disparate Treatment and Impact)
Title

VII

of

the

Civil

Rights

Act

of

1964

prohibits

intentional discrimination in employment on the basis of race,
also known as “disparate treatment”, and the Civil Rights Act of
1991 prohibits practices “that are not intended to discriminate

6

but

in

fact

have

a

disproportionately

adverse

effect

on

minorities”, also known as “disparate impact”. Ricci v. DeStefano,
557 U.S. 557, 577, 578(2009).
disparate

treatment,

To establish a prima facie case of

plaintiff

must

establish

that

he

is

a

qualified member of a protected class who was subjected to an
adverse employment action, and “the employer treated similarly
situated employees outside of [his] class more favorably.” Stinson
v. Pub. Serv. Tel. Co., 486 F. App'x 8, 10 (11th Cir. 2012).
Plaintiff must also show that defendant had a discriminatory intent
or motive.
(1988).

Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 986

To show disparate impact, a plaintiff can establish a

prima facie case by showing that the employer “uses ‘a particular
employment practice that causes a disparate impact on the basis of
race, color, religion, sex, or national origin.’”

Ricci, 557 U.S.

at 578 (quoting 42 U.S.C. § 2000e–2(k)(1)(A)(i)).

These are

“employment practices that are facially neutral in their treatment
of different groups but that in fact fall more harshly on one group
than another and cannot be justified by business necessity.” Int'l
Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).
Defendant argues that plaintiff cannot make a prima facie
case

of

disparate

comparators

are

treatment

identified.

because
Plaintiff

no

similarly

alleges

that

situated
he

was

qualified for the positions with the Census Bureau; that he is an

7

African-American and therefore a member of a protected class; that
he applied for positions with the Census Bureau but was not hired
due to discriminatory factors in hiring that were known to favor
non-African Americans.

Plaintiff alleges that the protected class

was treated differently and in large numbers, and it was done with
motive or intent because the EEOC had notified the Census Bureau
that

the

screening

process

being

used

could

have

a

racially

discriminatory impact if not corrected.
A plaintiff can set forth his case indirect, circumstantial
evidence, and by use of comparators.

Chapter 7 Tr. v. Gate

Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012).

The failure

to produce a comparator will not “necessarily doom the plaintiff’s
case.”

Id.

With the additional facts, the Court finds that

plaintiff can state a plausible cause of action for disparate
treatment at this stage of the proceedings, and Amended Complaint
should not be dismissed.
Defendant argues that plaintiff failed to identify a facially
neutral

employment

plaintiff.
utilized

practice

that

had

a

disparate

impact

on

Plaintiff alleges that the United States Census Bureau
discriminatory

employment

practices

that

caused

a

disproportionate impact on African-Americans and Latinos because
they are incarcerated at a higher rate and statistically would be
eliminated from consideration at a higher rate.

8

Plaintiff also

alleges that the criminal background checks cannot be justified by
business necessity as they were broad and without parameters based
on the nature or age of the convictions.

Although not the model

of clarity, the Amended Complaint states a plausible claim for
disparate impact at this stage of the proceedings.
B. Due Process Claim and Res Judicata
Defendant argues that plaintiff’s due process claim should be
dismissed for failure to state a claim because plaintiff has not
addressed this Court’s authority to review the class action in the
Southern District of New York, or how defendant could be held
liable.

Plaintiff continues to assert a violation of his due

process rights by collaterally attacking the failure to receive
adequate notice of the class action settlement.

“Absent class

members can collaterally challenge the res judicata effect of a
prior class judgment . . . because there was not adequate notice.”
Juris v. Inamed Corp., 685 F.3d 1294, 1313 (11th Cir. 2012)
(citations omitted).

“The notice provisions of Rule 23, which are

meant to protect the due process rights of absent class members,
set forth “different notice requirements to different kinds of
cases and even to different phases of the same case.”

Juris v.

Inamed Corp., 685 F.3d 1294, 1317 (11th Cir. 2012) (citations
omitted). Actual receipt of notice by each individual class member

9

is not required.

Juris v. Inamed Corp., 685 F.3d 1294, 1321 (11th

Cir. 2012).
Defendant relies on information outside the four corners of
the Amended Complaint to argue that due process and adequate notice
were provided, and to argue that plaintiff is foreclosed by the
settlement and dismissal of the litigation in New York.

The court

in the Southern District of New York found that the notice scheme
was

the

“best

notice

practicable”,

but

this

does

not

refute

plaintiff’s argument that he was not a member of the class, and
failed to receive timely notice to allow him to make a decision to
formally opt-in or opt-out of the final settlement.
The Court cannot make any conclusive determination at this
stage of the proceedings that res judicata applies to foreclose
plaintiff’s Title VII claims, or that he received procedural due
process.

Therefore, the motion will be denied as to the argument

of res judicata.
As previously stated, it is not immediately clear that this
is the proper venue for a due process claim based on the New York
court’s findings.

The Court finds that plaintiff cannot present

a due process violation in this stand-alone case filed in the
Middle

District

of

Florida.

The

due

process

claim

will

be

dismissed without prejudice to seeking relief in the Gonzalez case.

10

IV.
The Court finds that the filing of a Second Amended Complaint
would be appropriate so that the due process claim is eliminated,
and plaintiff’s causes of action are more clearly set forth in
counts.

Pursuant to Federal Rule of Civil Procedure 10, the

allegations should be set forth in separate numbered paragraphs,
“each

limited

circumstances”

as

far

as

practicable

Fed. R. Civ. P. 10(b).

to

a

single

set

of

Plaintiff should refrain

from restarting the numbering in the various sections of the second
amended complaint so that he starts at paragraph 1 on the first
page and ends with the last paragraph on the last page of the
second amended complaint.

Further, each claim “founded on a

separate transaction or occurrence” must be stated in a separate
“Count.”

Id.

For examples, plaintiff should set forth his

disparate

treatment

and

disparate

impact

claims

in

separate

counts.
For additional resources and assistance, plaintiff may wish
to consult the “Proceeding Without a Lawyer” resources on filing
a pro se complaint that are provided on the Court’s website, at
http://www.flmd.uscourts.gov/pro_se/default.htm.

The website has

tips, answers to frequently-asked questions, and sample forms.
There is also a link that, through a series of questions, may help
Plaintiff generate the amended complaint.

11

Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss Amended Complaint (Doc. #27) is
GRANTED IN PART AND DENIED IN PART.

The due process claim in the

Amended Complaint is dismissed without prejudice.

The motion is

otherwise denied. Plaintiff shall file a Second Amended Complaint,
without the due process claim and pursuant to the directives above,
within THIRTY (30) DAYS of this Opinion and Order. Defendant shall
file an answer to the remaining Title VII claims within THIRTY
(30) DAYS of the filing of a Second Amended Complaint.
DONE AND ORDERED at Fort Myers, Florida, this
October, 2018.

Copies:
Plaintiff
Counsel of record

12

9th

day of