Goss v. Stream Global Services, Inc
Filing
31
MEMORANDUM Opinion and Order granting in its entirety 9 Motion to Dismiss for Failure to State a Claim filed by Defendant Stream Global Services Inc. The Clerk of Court shall enter judgment accordingly. Signed by Judge Mark W Bennett on 3/19/2015. (copy w/nef to non-ecf filer) (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MARIO GOSS,
No. C14-4033-MWB
Plaintiff,
vs.
STREAM GLOBAL SERVICES, INC.,
Defendant.
MEMORANDUM OPINION AND
ORDER REGARDING
DEFENDANT’S MOTION TO
DISMISS
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION AND BACKGROUND .............................................. 2
A.
Factual Background ............................................................... 2
B.
Procedural Background ........................................................... 3
II.
LEGAL ANALYSIS ........................................................................ 3
A.
Standards For A Motion To Dismiss ............................................ 3
B.
Hostile Work Environment Claim ............................................... 6
C.
Constructive Discharge Claim .................................................. 10
D.
Section 1983 Claims .............................................................. 12
E.
Thirteenth Amendment Claim .................................................. 16
F.
Breach Of Contract .............................................................. 17
G.
Leave To Amend .................................................................. 19
III.
CONCLUSION ............................................................................ 19
In this employment discrimination lawsuit brought pro se, the plaintiff-employee
alleges, inter alia, that his former employer violated Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., by subjecting him to a hostile work environment as a
result of a single racist joke being told on his first day of training. The plaintiff-employee
further alleges that the hostile work environment resulted in his constructive discharge.
The employer has moved to dismiss all counts for failure to state a claim.
I.
INTRODUCTION AND BACKGROUND
A.
Factual Background
“When ruling on a defendant's motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). Thus,
the factual background presented here is based on Goss’s allegations in his Complaint.
Goss worked for Stream Global Services, Inc. (“Stream”) from December 3,
2012, to May 6, 2013. Goss is African-American of “Alkebulan national origin.”1
Complaint at 2. On his first day of work, December 3, 2012, during a training class,
Heather Bronkhorst, a Stream manager or supervisor, walked in and stated: “‘What do
you call four black people driving off a cliff?’ The punchline ‘My friends.’” Complaint
at 3. Goss found the joke unwelcome. He was “afraid, confused and frustrated” by it
and “[t]his created an instant extreme hostile and intolerable work environment.”
Complaint at 3. Bronkhorst’s motivation for the joke was Goss’s race, color, and national
origin. Goss later found “out I had the option to Constructive Discharge which I did in
1
Alkebulan is considered by some to be the original name for the African continent
and its inhabitants were referred to as Alkebulans.
See ALKEBULAN,
http://consciousplat.com (last visited Mar.13, 2015).
2
honor of the law.” Complaint at 3. Thus, as a result of the joke, “on 5/6/13 I was
constructively discharged by myself.” Complaint at 7.
B.
Procedural Background
Goss subsequently filed a timely pro se Complaint alleging he was subjected to a
hostile work environment because of his race, color, and national origin, resulting in his
constructive discharge and breach of contract, in violation of 42 U.S.C. § 1981, the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1983, and the
Thirteenth and Fourteenth Amendments of the United States Constitution. Goss seeks
back pay, 60 years of front pay, and $18 million in compensatory and punitive damages.
Stream has filed a motion to dismiss all of Goss’s claims, pursuant to Federal Rule of
Civil Procedure 12(b)(6), for failure to state a claim. Goss filed a response in opposition
to Stream’s motion to dismiss. Stream filed a reply to Goss’s response.
II.
A.
LEGAL ANALYSIS
Standards For A Motion To Dismiss
Stream seeks dismissal of all claims against it pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, which authorizes a pre-answer motion to dismiss for
“failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).
As the Eighth Circuit Court of Appeals has explained,
We review de novo the district court’s grant of a
motion to dismiss, accepting as true all factual allegations in
the complaint and drawing all reasonable inferences in favor
of the nonmoving party. See Palmer v. Ill. Farmers Ins. Co.,
666 F.3d 1081, 1083 (8th Cir. 2012); see also Fed.R.Civ.P.
12(b)(6). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
3
556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009)
(internal quotation omitted). “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.
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012); accord Freitas
v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 438 (8th Cir. 2013) (quoting Richter,
686 F.3d at 850); Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (stating
the same standards).
Courts consider “plausibility” under this Twom-bal standard2 by “‘draw[ing] on
[their own] judicial experience and common sense.’” Whitney, 700 F.3d at 1128 (quoting
Iqbal, 556 U.S. at 679). Also, courts must “‘review the plausibility of the plaintiff’s
claim as a whole, not the plausibility of each individual allegation.’” Id. (quoting Zoltek
Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010)). The Eighth
Circuit Court of Appeals has refused, at the pleading stage, “to incorporate some general
and formal level of evidentiary proof into the ‘plausibility’ requirement of Iqbal and
Twombly.” Id. Nevertheless, the question “is not whether [the pleader] might at some
later stage be able to prove [facts alleged]; the question is whether [it] has adequately
2
The “Twom-bal” standard is my nickname for the “plausibility” pleading
standard established in the United States Supreme Court’s twin decisions on pleading
requirements, and standards for dismissal for failure to state a claim upon which relief
can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for
claims in federal court. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173
L.Ed.2d 868 (2009).
4
asserted facts (as contrasted with naked legal conclusions) to support [its] claims.” Id.
at 1129. Thus,
[w]hile this court must “accept as true all facts pleaded by the
non-moving party and grant all reasonable inferences from the
pleadings in favor of the non-moving party,” United States v.
Any & All Radio Station Transmission Equip., 207 F.3d 458,
462 (8th Cir. 2000), “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’” Iqbal, 556 U.S. at 678, 129 S.
Ct. 1937 (quoting [Bell Atl. Corp. v.] Twombly, 550 U.S.
[544,] 555, 127 S. Ct. 1955 [(2007)]).
Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012); Whitney, 700 F.3d
at 1128 (stating the same standards).
In assessing “plausibility,” as required under the Twom-bal standard, the Eighth
Circuit Court of Appeals has explained that courts “consider[ ] only the materials that are
‘necessarily embraced by the pleadings and exhibits attached to the complaint,’” Whitney,
700 F.3d at 1128 (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir.
2003)), and “‘materials that are part of the public record or do not contradict the
complaint.’” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir.
2012) (quoting Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999),
and citing Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011)). A more complete
list of the matters outside of the pleadings that the court may consider, without converting
a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, pursuant
to Rule 12(d), includes “‘matters incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint whose authenticity is unquestioned.’”
Miller, 688 F.3d at 931 n.3 (quoting 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2004)).
5
Various federal Circuit Courts of Appeals have expressly recognized that, in
addition to dismissal for factual implausibility, the Twom-bal standard still permits
dismissal pursuant to Rule 12(b)(6) of a claim that lacks a cognizable legal theory. See,
e.g., Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013); Ball v. Famiglio, 726
F.3d 448, 469 (3d Cir. 2013) (a claim may be dismissed if it is based on an “indisputably
meritless legal theory”); Commonwealth Prop. Advocates, L.L.C. v. Mortgage Elec.
Registration Sys., Inc., 680 F.3d 1194, 1202 (10th Cir. 2011) (“Dismissal is appropriate
if the law simply affords no relief.”); see also Philadelphia Indem. Ins. Co. v. Youth
Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013) (recognizing that a claim must plead
sufficient facts under a “viable legal theory”). The Eighth Circuit Court of Appeals has
suggested the same. See Brown v. Mortgage Elec. Registration Sys., Inc., 738 F.3d 926,
933 n.7, 934 (8th Cir. 2013) (noting the appellate court’s agreement “with the district
court’s sound reasoning that the facts pled do not state a cognizable claim under Arkansas
law” and holding that dismissal pursuant to Rule 12(b)(6) was appropriate, because
Arkansas law did not impose the purported duty on which an unjust enrichment claim
and a state statutory claim were based).
I will apply these standards to Stream’s motion to dismiss.
B.
Hostile Work Environment Claim
The standards applied to evaluate a hostile work environment claim under 42
U.S.C. § 1981, are the same standards used to evaluate such a claim under Title VII.
See Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010) (citing Ross
v. Kansas City Power & Light Co., 293 F.3d 1041, 1050 (8th Cir. 2002)); see also Soto
v. John Morrell & Co., 285 F. Supp.2d 1146, 1166 (N.D. Iowa 2003). In order to
establish a prima facie case for a hostile work environment, Goss must show that: (1) he
6
is a member of a protected class; (2) he was subjected to unwelcome race-based
harassment; (3) the harassment was because of his membership in the protected class;
and (4) the harassment affected a term, condition, or privilege of his employment.3 See
Ellis v. Houston, 742 F.3d 307, 319 (8th Cir. 2014); Jackman v. Fifth Judicial Dist.
Dep’t of Correctional Servs., 728 F.3d 800, 805-06 (8th Cir. 2013); Anderson, 606 F.3d
at 518.
“Hostile work environment harassment occurs when ‘the workplace is permeated
with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and create an abusive
working environment.’” Singletary v. Missouri Dep’t of Corrs., 423 F.3d 886, 892 (8th
Cir. 2005) (quoting Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir.
2003)). “The environment must be both objectively hostile as perceived by a reasonable
person and subjectively abusive as actually viewed by [the plaintiff].” Anderson, 606
F.3d at 518 (citing Bowen v. Missouri Dep’t of Social Servs., 311 F.3d 878, 883 (8th
Cir. 2002)); see Ellis, 742 F.3d at 319. In considering the objective component, courts
examine the totality of the circumstances, “including the frequency of the discriminatory
conduct, its severity, whether it is physically threatening or humiliating or a mere
offensive utterance, and whether the conduct unreasonably interfered with the employee's
work performance.” Singletary, 423 F.3d at 893 (citing Bainbridge v. Loffredo Gardens,
Inc., 378 F.3d 756, 759 (8th Cir. 2004)). The Eighth Circuit Court of Appeals has
3
When a plaintiff attempts to establish a hostile work environment based on the
actions of co-workers, “he or she ‘must then present evidence that the employer “knew
or should have known about the harassment and failed to respond in a prompt and
effective manner.”’” Anderson, 606 F.3d at 519 (quoting Arraleh v. County of Ramsey,
461 F.3d 967, 969 (8th Cir. 2006) (citation omitted)).
7
instructed on the demanding nature of the standards required to be met in a hostile work
environment claim:
Hostile work environment claims must meet ‘demanding’
standards and courts are to ‘filter out’ those complaints
concerning the ‘ordinary tribulations of the workplace.’
‘Simple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.’ ‘Mere
utterance of an epithet which engenders offensive feelings in
an employee does not sufficiently affect the conditions of
employment to implicate § 1981.’
Anderson, 606 F.3d at 519 (quotations omitted).
The Complaint mentions only Bronkhorst’s racist joke in support of Goss’s hostile
work environment claim.4 Stream argues that this allegation is not sufficiently severe or
pervasive to support a hostile work environment claim. Goss’s allegation is of a single
incident of discriminatory conduct, which was not physically threatening, and did not
interfere with his work performance. Taking Goss’s allegation of the racial joke as true,
as I must in this posture of the litigation, I find it incredibly reprehensible and offensive.
It is simply beyond the pale. It is even worse because this happened on Mr. Goss's first
day of work, in a training session by a manager or supervisor. If I were not constrained
by precedent and writing on a clean slate I would likely find this single incident
sufficiently severe to create a hostile work environment and alter the conditions of Mr.
Goss's employment. But the precedent of the Eighth Circuit Court of Appeals and many
other courts is to the contrary. See Ellis v. Houston, 742 F.3d 307, 321 (8th Cir. 2014)
4
Goss does not mention being called any racist names in his Complaint. However,
in his brief, Goss mentions being called a “nigger” at Stream. Goss does not identify
any of the circumstances surrounding the alleged name calling, such as who called him
the name, when or how frequently it happened, or where at Stream it occurred.
8
(pattern of hostile conduct established by looking at all black officers on plaintiff's shift;
officers experienced racist remarks on near daily basis in front of entire staff with
supervisors actively joining in the “constant refrain of racist jokes); see also Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2nd Cir. 1997) (“For racist comments, slurs, and
jokes to constitute a hostile work environment . . . there must be a steady barrage of
opprobrious racial comments.”); Stepheny v. Brooklyn Hebrew Sch. For Special
Children, 356 F.Supp.2d 248, 264 (E.D.N.Y. 2005) (holding that coworker's use of
racial epithet five times over five month period was insufficient to establish hostile work
environment claim); McPherson v. NYP Holdings, Inc., No. 03–CV–4517, 2005 WL
2129172, at *7–8 (E.D.N.Y. Sept. 1, 2005) (“Three comments made over a period of
more than two years amount only to a few isolated incidents, and therefore do not
constitute a hostile work environment.”); Pagan v. New York State Div. of Parole, No.
98 Civ. 5840, 2003 WL 22723013, at *5 (S.D.N.Y. Nov. 18, 2003) (holding that four
derogatory racial comments by plaintiff's supervisor did not constitute “extremely
serious” behavior necessary for hostile work environment claim); Dorrilus v. St. Rose's
Home, 234 F.Supp.2d 326, 335 (S.D.N.Y. 2002) (granting summary judgment where
supervisor four times called African–American plaintiff “El Negro” and commented that
“he hate[d] black people”). Because Goss has failed to allege that the harassment affected
a term, condition, or privilege of his employment, he has failed to establish the elements
of his prima facie case, and dismissal of his hostile work environment claim is warranted.
See Al–Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1039 (8th Cir. 2005) (“The
[Supreme] Court implores lower courts to apply the demanding harassment standards to
‘filter out complaints attacking the ordinary tribulations of the workplace, such as the
sporadic use of abusive language, gender-related jokes, and occasional teasing.’”)
(quoting Oncale v. Sudowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
9
Accordingly, Stream’s motion to dismiss is granted with respect to Goss’s hostile work
environment claim.
C.
Constructive Discharge Claim
Goss also claims that he was constructively discharged from his employment with
Stream.5 Specifically, Goss alleges that Bronkhorst’s racist joke “created an instant
extreme hostile and intolerable work environment,” Complaint at 3, and, as a result, he
had a right to quit his employment with Stream and maintain a claim for constructive
discharge. Stream argues that Goss’s Complaint does not state facts that are sufficiently
servere or pervasive to support constructive discharge.
In order to prove a claim of constructive discharge, Goss must show that his
“‘employer deliberately created intolerable working conditions with the intention of
forcing her to quit.’” Sanders v. Lee County Sch. Dist. No. 1, 669 F.3d 888, 893 (8th
Cir. 2012) (quoting Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 418 (8th
Cir.2010)). In other words, if “‘an employee quits because she reasonably believes there
is no chance of fair treatment, there has been a constructive discharge.’ ” Henderson v.
Simmons Foods, Inc., 217 F.3d 612, 617 (8th Cir.2000) (quoting Kimzey v. Wal–Mart
5
The parties analyze constructive discharge as if it were an entirely separate cause
of action. The parties, however, have not cited and I have not found any case suggesting
that “constructive discharge” is a distinct cause of action under either statute. The
Supreme Court has recognized, however, that under Title VII an employee may bring a
“hostile-environment constructive discharge claim.” Pennsylvaqnia State Police v.
Suders, 542 U.S. 129, 146 (2004). This is “an aggravated case” of a hostile work
environment claim in which the plaintiff must prove that her working conditions have
become “so intolerable that a reasonable person would have felt compelled to resign.”
Id.
10
Stores, 107 F.3d 568, 574 (8th Cir. 1997)). The Eighth Circuit Court of Appeals has
explained that:
to prove that a constructive discharge occurred, the plaintiff
must demonstrate that a reasonable person would find the
working conditions intolerable. The intolerability of working
conditions is judged by an objective standard, not the
employee's subjective feelings; the question is whether
working conditions were rendered so objectionable that a
reasonable person would have deemed resignation the only
plausible alternative.
Tatom v. Georgia–Pacific Corp., 228 F.3d 926, 932 (8th Cir.2000) (citations omitted).
Evidence of the employer's intent may be proven “through direct evidence or through
evidence that ‘the employer . . . could have reasonably foreseen that the employee would
quit as a result of its actions.’ ” Fercello v. County of Ramsey, 612 F.3d 1069, 1083 (8th
Cir. 2010) (quoting Wright v. Rolette County, 417 F.3d 879, 886 (8th Cir. 2005)). Thus,
the constructive discharge analysis is similar to, and ultimately more stringent than, the
hostile work environment analysis:
If the plaintiff is to succeed on such a claim, the conduct
complained of must have been “severe or pervasive enough
to create an objectively hostile or abusive work
environment—an environment that a reasonable person would
find hostile or abusive.” [Delph v. Dr. Pepper Bottling Co.
of Paragould, Inc., 130 F.3d 349, 354 (8th Cir.1997)]
(quoting Harris, 510 U.S. at 21, 114 S. Ct. 367, 126 L.Ed.2d
295). Furthermore, the environment must be perceived
subjectively by the victim as hostile, or the conduct cannot be
said to have “actually altered the conditions of the victim's
employment, and there is no Title VII violation.” Id. (quoting
Harris, 510 U.S. at 21–22, 114 S. Ct. 367, 126 L.Ed.2d 295)
(citing Kimzey, 107 F.3d at 573). The Eighth Circuit has held
that “the employer's actions leading to the decision to quit
must have been deliberate, and taken with the intention of
11
forcing the employee to quit.” Id. (quoting Johnson v. Bunny
Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981)). In the
alternative, where conscious intent is absent, the intention
element may nevertheless be satisfied by proof demonstrating
the employee's “resignation was a reasonably foreseeable
consequence” of the hostile atmosphere of the plaintiff's
workplace. Id. (citing Hukkanen v. Int'l Union of Operating
Eng'rs Local 101, 3 F.3d 281, 285 (8th Cir.1993)).
Lopez v. Aramark Uniform & Career Apparel, Inc., 426 F.Supp.2d 914, 941 (N.D. Iowa
2006) [footnote omitted]. Thus, Goss must adequately allege not only that he suffered
from a hostile or abusive work environment, but also that Stream either intended to force
his resignation or, at least, should have reasonably expected that he would resign. He
also has to allege that he gave Stream “a reasonable opportunity to resolve a problem
before quitting.” Sanders, 669 F.3d at 893.
As a matter of law, because Goss’s hostile work environment claim has failed, his
constructive discharge claim must also fail. See Vallecillo v. United States Dep't of
Housing & Urban Dev., 155 Fed. App’x 764, 767 (5th Cir.2005) (“We agree with the
district court's reasoning that because Appellant's hostile work environment claim has
failed, his constructive discharge claim must also fail.”). In addition to failing to allege
the existence of a hostile work environment, the Complaint’s allegations, when viewed
most favorably to Goss, do not suggest that Stream intended to force Goss’s resignation
or, at least, should have expected that he would resign. Accordingly, the Complaint fails
to allege a viable claim that Goss was constructively discharged. As such, I also grant
Stream’s motion to dismiss on Goss’s constructive discharge claim.
D.
Section 1983 Claims
Goss also raises his claims, alternatively, under 42 U.S.C. § 1983. Stream
challenges the sufficiency of these claims against it. Specifically, Stream contends Goss
12
has failed to plead state action by it. Consequently, the issue raised by this portion of
Stream’s motion is whether Stream may fairly be considered acting under color of state
law for the purposes of § 1983. Goss has not addressed Stream’s lack of state action
argument in his brief.
“Section 1983 provides a cause of action against any person who deprives an
individual of federally guaranteed rights ‘under color’ of state law.” Filarsky v. Delia,
132 S. Ct. 1657, 1661 (2012) (quoting 42 U.S.C. § 1983). In order to state a claim for
relief under § 1983, Goss must establish that he was “deprived of a right secured by the
Constitution or laws of the United States, and that the alleged deprivation was committed
under color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–
50 (1999); accord Alexander v. Hedback, 718F.3d 762, 765 (8th Cir. 2013) (“To state a
claim under 42 U.S.C. § 1983, a plaintiff must show that he was deprived of a right
secured by the Constitution and the laws of the United States and that the deprivation was
committed by a person acting under color of state law.”). Thus, “[t]he essential elements
of a constitutional claim under § 1983 are (1) that the defendant acted under color of state
law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally
protected federal right.” L.L. Nelson Enters., Inc. v. County of St. Louis, Mo., 673 F.3d
799, 805 (8th Cir. 2012); see Van Zee v. Hanson, 630 F.3d 1126, 1128 (8th Cir. 2011);
Zutu v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010); Dennen v. City of Duluth, 350 F.3d
786, 790 (8th Cir. 2003); Murray v. City of Onawa, 323 F.3d 616, 618 (8th Cir. 2003).
Courts have consistently treated the “under color of state law” element of § 1983
“as the same thing as the ‘state action’ required under the Fourteenth Amendment.”
Rendell–Baker v. Kohn, 457 U.S. 830, 838 (1982) (quoting United States v. Price, 383
U.S. 787, 794 (1966)); accord Brentwood Acad. v. Tennessee Secondary Sch. Athletic
Ass'n, 531 U.S. 288, 295 n.2 (2001); Sullivan, 526 U.S. at 50 (1999); Lugar v.
Edmondson Oil Co., 457 U.S. 922, 935 (1982); Dossett v. First State Bank, 399 F.3d
13
940, 947 (8th Cir. 2005); Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 229
(2nd Cir. 2004); Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002); Mentavlos v. Anderson,
249 F.3d 301, 310 (4th Cir. 2001); Tarpley v. Keistler, 188 F.3d 788, 791 (7th Cir.1999);
Abraham v. Raso, 183 F.3d 279, 287 (3rd Cir.1999. “[S]tate action requires both an
alleged constitutional deprivation ‘caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the State or by a person for whom
the State is responsible,’ and that ‘the party charged with the deprivation must be a person
who may fairly said to be a state actor.’” Sullivan, 526 U.S. at 50 (quoting Lugar, 457
U.S. at 937). Careful attention to the state action requirement serves two purposes: it
“preserves an area of individual freedom by limiting the reach of federal law and federal
judicial power,” Lugar, 457 U.S. at 936; and it avoids imposing on a state responsibility
for conduct which was not under its control. Brentwood Acad., 531 U.S. at 295.
The Eighth Circuit Court of Appeals has observed that:
The Supreme Court has recognized a number of
circumstances in which a private party may be characterized
as a state actor, such as where the state has delegated to a
private party a power “traditionally exclusively reserved to
the State,” see Jackson v.. Metro. Edison Co., 419 U.S. 345,
352, 95 S. Ct. 449, 42 L.Ed.2d 477 (1974), where a private
actor is a “willful participant in joint activity with the State or
its agents,” see Adickes v. S.H. Kress & Co., 398 U.S. 144,
151, 90 S. Ct. 1598, 26 L.Ed.2d 142 (1970), and where there
is “pervasive entwinement” between the private entity and the
state, see Brentwood, 531 U.S. at 291, 121 S. Ct. 924. These
particular circumstances are merely examples and not
intended to be exclusive. See id. at 295, 121 S. Ct. 924.
Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007). The court went on
to point out that:
The one unyielding requirement is that there be a “close
nexus” not merely between the state and the private party, but
14
between the state and the alleged deprivation itself. See
Brentwood, 531 U.S. at 295, 121 S. Ct. 924. No such nexus
exists where a private party acts with the mere approval or
acquiescence of the state, see Blum v. Yaretsky, 457 U.S. 991,
1004–05, 102 S. Ct. 2777, 73 L.Ed.2d 534 (1982), but a
private entity may be considered a state actor if it “has acted
together with or has obtained significant aid from state
officials” in furtherance of the challenged action. Lugar, 457
U.S. at 937, 102 S. Ct. 2744.
Wickersham, 481 F.3d at 597.
As I noted above, Goss has not addressed Stream’s lack of state action argument.
The Complaint itself contains no allegations concerning any nexus whatsoever between
Stream and any state. There are no allegations of any joint participation by state officials
in Stream’s conduct. Moreover, there are no allegations that would permit a reasonable
fact finder to conclude that Stream’s business was performing a public function that has
been “traditionally the exclusive prerogative of the State.” Blum v. Yaretsky, 457 U.S.
991, 1005 (1982).
Finally, there are no allegations which would permit a reasonable
fact finder to conclude that a state “has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the [challenged conduct] must in
law be deemed to be that of the State.” Id. at 1004. In sum, having carefully considered
the Complaint, I find, as a matter of law, that Goss has failed to plead state action and,
therefore, has not stated a cause of action under § 1983. Accordingly, I also grant
Stream’s motion to dismiss Goss’s § 1983 claims.6
6
A Fourteenth Amendment due process claim also requires a showing of “state
action.” Lugar, 457 U.S. at 924 (“Because the Amendment is directed at the States, it
can be violated only by conduct that may be fairly characterized as ‘state action.’”).
Accordingly, because Goss has failed to plead state action, he has also failed to adequately
plead his Fourteenth Amendment due process clause claim and Stream’s motion to
dismiss is also granted as to that claim.
15
E.
Thirteenth Amendment Claim
Stream also challenges the sufficiency of Goss’s Thirteenth Amendment claim.
Stream argues that Goss’s Thirteenth Amendment claim fails because the Thirteenth
Amendment does not give rise to an independent cause of action. Goss has not addressed
Stream’s argument in his brief.
The Thirteenth Amendment states:
Section 1. Neither slavery nor involuntary servitude, except
as punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any
place subject to their jurisdiction.
Section 2. Congress shall have the power to enforce this
article by appropriate legislation.
U.S. CONST. amend. XIII.
Under § 2 of the Thirteenth Amendment, Congress has the power “rationally to
determine what are the badges and incidents of slavery, and the authority to translate that
determination into effective legislation.” Jones v. Alfred H. Mayer Co., 392 U.S. 400,
439-40 (1968). This authority permits Congress to “‘reach purely private action.’”
United States v. Sandstrom, 594 F.3d 634, 660 (8th Cir. 2010) (quoting United States v.
Bledsoe, 728 F.2d 1094, 1097 (8th Cir. 1984). However, the Thirteenth Amendment
does not provide a private cause of action for violation of its terms and a plaintiff must
proceed under an implementing statute. See, e.g., Del Elmer v. Metzger, 967 F. Supp.
398, 402 (S.D. Cal. 1997) (“Plaintiff has pointed to no authority, and the court knows
of none, allowing a plaintiff to proceed directly under the Thirteenth Amendment against
private parties such as the defendants here”); Baker v. McDonald's Corp., 686 F. Supp.
1474, 1480 n. 12 (S.D. Fla. 1987) (“The plaintiff may not maintain a cause of action
directly under the Thirteenth Amendment for employment discrimination. Rather, the
16
plaintiff must base his claims on one of the implementing statutes . . . .”) (internal
citations omitted)), aff'd, 865 F.2d 1272 (11th Cir.1988); Sanders v. A.J. Canfield Co.,
635 F. Supp. 85, 87 (N.D. Ill. 1986) (“There is no direct private cause of action under
the Thirteenth Amendment. Plaintiffs, instead, must resort to statutory remedies created
by Congress under the power granted to it by that amendment.”).
Thus, in order to state a Thirteenth Amendment claim, Goss must rely on a statute
that enforces the provisions of the Thirteenth Amendment. 7 The only statutes Goss
mentions in his complaint are §§ 1981, 1983, and Title VII. However, I have already
concluded that Goss does not state a claim for relief under any of these statutes.
Therefore, Goss’s Thirteenth Amendment claim also fails. Accordingly, I grant Stream’s
motion to dismiss Goss’s Thirteenth Amendment claim.
F.
Breach Of Contract
Finally, Stream seeks dismissal of Goss’s breach of contract claim. Stream argues
that the Complaint fails to state an actionable contract claim because it does not identify
an express or implied contract. “A party breaches a contract when, without legal excuse,
it fails to perform any promise which forms a whole or a part of the contract.” Molo Oil
Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998) (citing
Magnusson Agency v. Public Entity Nat'l Co., 560 N.W.2d 20, 27 (Iowa 1997)). The
elements of a breach of contract claim under Iowa law are: (1) the existence of a contract;
(2) the terms and conditions of the contract; (3) that the plaintiff has performed all the
terms and conditions required under the contract; (4) the defendant's breach of the
contract in some particular way; and (5) that plaintiff has suffered damages as a result of
7
Obviously, if Goss has brought his claim directly under the Thirteenth
Amendment rather than an implementing statute, Goss fails to state a cause of action and
his claim must be dismissed.
17
the breach. See Iowa Mortg. Ctr., L.L.C. v. Baccam, 841 N.W.2d 107, 111 (Iowa
2013); Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 846 (Iowa 2010);
Molo Oil Co., 578 N.W.2d at 224; Iowa–Illinois Gas & Elec. Co. v. Black & Veatch,
497 N.W.2d 821, 825 (Iowa 1993). “The first three elements address the existence of a
contract. The last two elements address the breach of the contract and the damages
caused by the breach.” Baccam, 841 N.W.2d at 111.
The Complaint completely fails to identify the contract at issue, the terms of that
contract, and what terms of the agreement that Stream purportedly breached, other than
to mention an “employment contract” twice in passing. Compl. at 4, 6. Because Goss
has failed to plead an essential element of his breach of contract claim, Stream’s motion
to dismiss that claim is granted. See Midwest Special Surgery, P.C. v. Anthem Ins. Cos.,
No. 4:9cv646 TIA, 2010 WL 716105, at *6 (E.D. Mo. Feb.24, 2010) (breach of contract
allegations dismissed in light of the plaintiffs' failure to identify these contracts with
sufficient specificity and vague references to the “terms” of the alleged contract); Collins
v. Allstate Indemn. Co., No. C 09-4110, 2010 WL 147969, at *2 (N.D. Cal. Jan. 12,
2010) (“Plaintiffs fail to allege which provision of the insurance policy Allstate is alleged
to have breached. The absence of such allegations fails to comport with Twombly ”);
Ashby v. SLM Corp., Civ. No. 08-870, 2008 WL 1945181, at *2 (D. Minn. Apr. 30,
2008) (“Plaintiff's complaint fails to state an actionable breach of contract claim, because
it does not identify any contract between Plaintiff and Defendants. Furthermore, if there
is such a contract, the complaint does not describe any of its terms and conditions.
Finally, (and perhaps most importantly), the complaint does not describe any specific
acts or omissions by Defendants that breached any terms or conditions of any contract.”).
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G.
Leave To Amend
Goss asks for leave to amend his Complaint in the event that I find any of his
allegations are inadequate.
Goss’s brief, however, does not indicate what, if any,
amendments he could make that would cure the deficiencies in the Complaint. This leads
me to conclude that an opportunity to replead would be futile. Goss’s request for leave
to amend the Complaint is denied.
III.
CONCLUSION
For the reasons stated above, it is ordered that defendant Stream Global Services,
Inc.’s motion to dismiss is granted in its entirety. The Clerk of Court shall enter judgment
accordingly.
IT IS SO ORDERED.
DATED this 19th day of March, 2015.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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