Brown v. Accenture Federal Services et al

Filing 24

MEMORANDUM OPINION & ORDER: that the Plaintiff's Mtn to Vacate (R. 22 ) is DENIED, and this matter is once again STRICKEN from the Court's active docket. Signed by Judge Gregory F. VanTatenhove on 2/7/2017.(AKR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
IVAN LYDELL BROWN,
Plaintiff,
v.
ACCENTURE FEDERAL SERVICES
and OLIVIA SMITH,
Defendants.

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Civil No. 3:15-cv-00024-GFVT

MEMORANDUM OPINION
&
ORDER

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Plaintiff Ivan Brown has asked the Court to vacate its opinion and judgment granting
Accenture Federal Services and Olivia Smith’s motion to dismiss Brown’s claims. As grounds
for his motion to vacate, Mr. Brown contends the Court committed manifest errors of law by
requiring him to plead a prima facie case of race and gender discrimination in his complaint.
After carefully reviewing the parties’ arguments, the Court’s prior opinion, and the relevant case
law, the Court DENIES the motion to vacate.
I
The factual background of this case is described in detail in the Court’s June 2016
memorandum opinion and order. [See R. 20 at 1-6.] Because Mr. Brown does not challenge the
Court’s discussion of the facts in any way, the Court incorporates that portion of the
memorandum opinion and order by reference herein. In short, Mr. Brown, an African American
male, filed suit against his former employer Accenture Federal Services (“AFS”) and AFS
employee Olivia Smith for racial discrimination in violation of the Kentucky Civil Rights Act;
promissory estoppel; negligent hiring and supervision; failure to protect; reverse gender

discrimination; and a due process violation. [See R. 14.] Brown later agreed to drop all claims
except for the racial discrimination, gender discrimination, and related common law promissory
estoppel counts. [See R. 18 at 1.] AFS and Olivia Smith then filed a Rule 12(b)(6) motion to
dismiss. [R. 15.]
Upon review, the Court determined Brown’s claims could not survive the Defendants’
motion. The Court discussed the prima facie elements of Brown’s racial and gender
discrimination claims and ultimately concluded Brown had not alleged sufficient facts to proceed
on those claims. The Court also dismissed Brown’s promissory estoppel allegations as
conclusory and insufficient to satisfy the pleading standards set forth in Federal Rule of Civil
Procedure 8. [R. 20.]
Brown does not challenge the Court’s dismissal of the promissory estoppel claim, but he
takes issue with the Court’s treatment of the racial and gender discrimination claims.
Specifically, Brown contends the Court erred “by requiring Plaintiff to plead facts supporting
each element of a prima facie case of race (Count I) and gender discrimination (Count VI) in
order to defeat Defendant’s Motion to Dismiss.” [R. 22-1 at 2.] Accordingly, brown asks the
Court to vacate its June 2016 judgment pursuant to Federal Rule of Civil Procedure 59(e).
II
A
Federal Rule of Civil Procedure 59(e) allows a litigant to file a motion to alter or amend a
judgment of a district court. Motions to alter or amend a judgment may be granted if there is a
clear error of law, newly discovered evidence, an intervening change in the law, or to prevent
manifest injustice. See, e.g., GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 833 (6th
Cir. 1999). Notably, a motion under Rule 59(e) is “not an opportunity to re-argue a case.” Sault

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Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Further, a
“manifest error is not demonstrated by the disappointment of the losing party. It is the wholesale
disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metropolitan
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Whether to grant or deny a Rule 59(e) motion is
generally a matter within the district court’s sound discretion. See Engler, 146 F.3d at 374.
B
Mr. Brown argues the Court incorrectly required him to plead facts supporting each
element of a prima facie case of race and gender discrimination. To begin, the Court
acknowledges an inaccurate statement in its opinion which suggests the Court was concerned
only with whether Brown had pled all elements of a prima facie case. The Court’s opinion reads:
“As a threshold matter, it is important to clarify that the question presently before the Court is
only whether Brown has pled sufficient facts to make out a prima facie case.” [R. 20 at 11-12.]
But as Mr. Brown points out, and as set forth in binding Sixth Circuit precedent, the McDonnell
Douglas Corp. v. Green framework for proving discrimination claims is not an actual pleading
requirement. See 411 U.S. 792, 802 (1973).
In Keys v. Humana, Inc., the Sixth Circuit considered a district court’s dismissal of a
plaintiff’s discrimination claim due to the plaintiff’s failure to plead a prima facie discrimination
case. Reversing the district court, the Sixth Circuit explained the following:
The district court’s requirement that Keys’s complaint establish a prima facie case
under McDonnell Douglas and its progeny is contrary to Supreme Court and Sixth
Circuit precedent. In Swierkiewicz v. Sorema, the Supreme Court unanimously
held that the prima facie case under McDonnell Douglas is an evidentiary
standard, not a pleading requirement. 534 U.S. 506, 510, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002).
...
The Supreme Court’s subsequent decisions in Twombly and Iqbal did not alter its
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holding in Swierkiewicz. Twombly distinguished Swierkiewicz, explaining that the
prior case “did not change the law of pleading,” but simply reemphasized that
application of the McDonnell Douglas prima facie case at the pleading stage “was
contrary to the Federal Rules’ structure of liberal pleading requirements.”
...
Therefore, it was error for the district court to require Keys to plead a prima facie
case under McDonnell Douglas in order to survive a motion to dismiss.
684 F.3d 605, 609 (6th Cir. 2012).
If the Court’s opinion had, in fact, dismissed Mr. Brown’s discrimination claims solely
for failure to plead a prima facie case, Brown’s Rule 59(e) motion to vacate would be well-taken.
However, the Court’s opinion on the whole makes clear that Brown’s claims fail to satisfy the
plausibility standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), regardless of whether Brown pled a prima facie case
under McDonnell Douglas.
Throughout the Court’s opinion, the Court pointed out ways in which Mr. Brown failed
to present facts to back up his conclusory assertions. Regarding Brown’s racial discrimination
claim, the Court was troubled by the lack of factual support tending to prove Brown actually
could have been fired because of his race. Although AFS told Mr. Brown he was being
terminated because of his criminal record [R. 14 at ¶¶ 57-58], Brown maintains that AFS actually
targeted him “in part, due to his race” and that AFS “showed favoritism to Caucasian employees
by not requiring the completion of a background check.” [R. 14 at ¶¶ 92-93.] The only factual
example Brown offers to support these claims is that “Ms. Barbra Conley, a similarly situated
Caucasian employee with Defendant AFS, had her background check cancelled, despite applying
for military security clearance on the same day, and receiving the same email as Plaintiff
regarding military security clearance.” [Id. at ¶ 94.]

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Interestingly, however, Mr. Brown does not suggest even in the slightest that Ms. Conley,
the white employee who allegedly had her background check cancelled, had a similar criminal
record. He does not even allege that both he and Conley were subject to the same background
check requirements. In fact, the two individuals had different job titles at AFS. Ms. Conley was
employed as an Alcohol and Drug Control Officer who served as a “director supervisor” to
Brown [id. at ¶ 67], and Brown was employed as Substance Abuse Prevention Coordinator. [Id.
at ¶¶ 15-17]. The complaint contains no references to racially charged language used by AFS
employees, no hint of a pattern of conduct engaged in by AFS that favored Caucasians, and no
explanation of how Mr. Brown and Ms. Conley were actually similarly situated. Even
construing the complaint in the light most favorable to Mr. Brown, see, e.g., Harbin-Bey v.
Rutter, 420 F.3d 571, 575 (6th Cir. 2005), Brown’s racial discrimination claim simply does not
“allege sufficient factual content from which a court, informed by its judicial experience and
common sense, could draw the reasonable inference” that AFS discriminated against him
because of his race. Keys, 684 F.3d at 610 (internal quotation marks omitted) (quoting Iqbal,
556 U.S. at 678-79).
Relatedly, Brown’s complaint is devoid of sufficient facts to allow the court to
reasonably infer AFS discriminated against him because of his gender. Id. Brown’s complaint
indicates that AFS gave females, such as Defendant Olivia Smith, “unlawful preferential
treatment compared to males; that AFS’s “waiver of Defendant Smith’s background check, and
the arbitrary termination of the Plaintiff’s shows discriminatory intent;” and that “AFS’s
pretextual excuse of the Plaintiff’s criminal history would have an unlawful disparate impact
upon the male population if it were true.” [R. 14 at ¶¶ 130-32.] But Brown fails to back up his
claim for gender discrimination with much beyond the mere assertion that he is a man, and

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therefore his termination must have been discriminatory. See Sam Han v. University of Dayton,
541 F. App’x 622, 626 (6th Cir. 2013) (dismissing gender discrimination claim in a similar case).
The Court, therefore, reasonably concluded that Brown’s racial and gender discrimination
claims must be dismissed—not only because of Brown’s failure to plead a prima facie case of the
discrimination claims, but because of Brown’s failure to adhere to the Twombly and Iqbal
pleading standards. The Court’s overall reasoning in its June 2016 opinion and at present is
similar to the logic displayed by the Sixth Circuit in House v. Rexam Beverage Can Co., 630 F.
App’x 461 (6th Cir. 2015). In that case, Judge Siler on behalf of the panel affirmed a district
court’s decision to dismiss a plaintiff’s age discrimination claim, noting the plaintiff’s complaint
was devoid of facts that would support a reasonable inference of age discrimination. Id. at 463.
While the complaint alleged the employer treated the plaintiff less favorably than younger,
similarly situated employees, the complaint did not offer any facts—such as comments made by
the employer about age, a pattern of relevant behavior by the employer, or details about the
employer’s treatment of other employees—to actually support the plaintiff’s “bare assertions” of
age discrimination. Id. See also Sam Han, 541 F. App’x 622 (holding, in a race and gender
discrimination case, that dismissal was proper where the plaintiff failed to plead more than his
own race and gender in support of his claims).
On the whole, the Court acknowledges the undue emphasis the June 2016 opinion placed
on the McDonnell Douglas framework at the Rule 12(b)(6) stage, as that framework is “an
evidentiary standard, not a pleading requirement.” See Keys, 684 F.3d at 609. Nevertheless, Mr.
Brown’s amended complaint still fails to survive the Defendant’s motion to dismiss because of
its failure to satisfy the plausibility pleading requirements required under Twombly and Iqbal.
See id. at 610. Mr. Brown’s racial and gender discrimination claims are not plausible on their

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face, and “a complaint that allows the court to infer only a mere possibility of misconduct is
insufficient to . . . meet the pleading requirements of Rule 8.” Sam Han, 541 F. App’x at 626
(internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 679). Therefore, the Court did not
commit manifest errors of law in its prior analysis, and there is no need to vacate that opinion
and judgment.
III
Accordingly, the Court hereby ORDERS that the Plaintiff’s Motion to Vacate [R. 22] is
DENIED, and this matter is once again STRICKEN from the Court’s active docket.
This the 7th day of February, 2017.

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