Welch v. Ikon Office Solutions, Inc

Filing 3

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT filed by Demetrece R Welch Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEMETRECE R. WELCH
Plaintiff,
Case No. 12-13417
Hon. Lawrence P. Zatkoff

v.
IKON OFFICE SOLUTION, INC.,
Defendants.
/

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING COMPLAINT
I. INTRODUCTION
Plaintiff submitted his Complaint [dkt 1] and Application to Proceed in forma pauperis [dkt
2] on August 3, 2012. Plaintiff’s Application to proceed in forma pauperis is GRANTED; however,
the Court DISMISSES Plaintiff’s Complaint for failure to state a claim upon which the Court may
grant relief.
II. ANALYSIS
A. Plaintiff’s Request to Proceed In Forma Pauperis
Plaintiff has filed an application to proceed without prepayment of fees. Under 28 U.S.C.
§ 1915(a), “any court of the United States may authorize the commencement, prosecution or defense
of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person
who submits an affidavit that includes a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefor.” The reference to assets of “such
prisoner” is likely a typographical error; thus, § 1915(a) applies to all natural persons. See Floyd
v. U.S. Postal Serv., 105 F.3d 274 (6th Cir. 1997). If a motion to proceed without prepayment of

fees is filed and accompanied by a facially-sufficient affidavit, the Court should allow the complaint
to be filed. See Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir. 1990) (citing Phillips v.
Carey, 638 F.2d 207, 208 (10th Cir. 1981)). Only after the complaint is filed is it tested to determine
whether it is frivolous or fails to state a claim. See id. at 261. The Court finds Plaintiff’s financial
affidavit facially sufficient; therefore, the Court will GRANT Plaintiff’s request to proceed without
prepayment of fees.
B. Dismissal for Lack of Subject-Matter Jurisdiction and Failure to State a Claim
Upon granting a plaintiff’s request to proceed in forma pauperis, the Court performs a
preliminary screening of the complaint under several provisions of the United States Code. Pursuant
to 28 U.S.C. §§ 1915A, 1915(e), and 42 U.S.C. § 1997e(c)(1), the Court is to sua sponte dismiss the
case before service on Defendants if it determines that the action is frivolous or malicious, fails to
state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is
immune from such relief.
The Court has a duty to construe a pro se plaintiff’s pleadings liberally, see, e.g., Haines v.
Kerner, 404 U.S. 519 (1972), but in doing so, it will not re-write a deficient complaint or otherwise
serve as counsel for that plaintiff. See GJR Invs, Inc. v. County of Escambia, Fla., 132 F.3d 1359,
1369 (11th Cir. 1998). Construing Plaintiff’s complaint liberally, the Court finds that Plaintiff has
failed to state a claim upon which the Court may grant relief.
Plaintiff claims Defendant discriminated against him on the basis of race when Defendant
made an offer of employment that was contingent upon Plaintiff’s successful passing of a
background screening. When Defendant notified Plaintiff that he did not pass the background
screening, apparently on the basis of his past criminal history, the contingent offer was revoked.

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Plaintiff claims that Defendant’s background and drug screening policy cause a “disparate impact”
on African-American applicants. Plaintiff also claims that such a decision was “disparate treatment”
towards Plaintiff because the decision not to hire him was due to the results of his background
screening, and their was no business purpose for the decision.
A covered employer is liable for violating Title VII when the plaintiff demonstrates that the
employer treated him differently because of his race, national origin, or another protected basis.
See 42 U.S.C. § 2000e-2(a). In this case, Plaintiff has failed to adequately state his disparate
treatment claim because he does not show or even allege that Defendant treats criminal history
information differently for different applicants or employees based on their race or national origin.
See Dunlap v. Tennessee Valley Auth., 519 F.3d 626, 630 (6th Cir. 2008) (“The disparate treatment
doctrine . . . requires a plaintiff to demonstrate that an employer has treated some people less
favorably than others because of their race, color, religion, sex or national origin.”)(citations
omitted).
Plaintiff’s disparate impact count also fails to state a claim. A prima facie disparate impact
claim is established when: (1) a plaintiff identifies a specific employment practice to be challenged;
and (2) through relevant statistical analysis proves that the challenged practice has an adverse impact
on a protected group. Johnson v. U.S. Dept. of Health and Human Servs., 30 F.3d 45, 48 (6th
Cir.1994) (citing Scales v. J.C. Bradford & Co., 925 F.2d 901, 907-08 (6th Cir.1991)). Although
Plaintiff challenges Defendant’s pre-employment background and drug screening practice, he has
failed to show or even adequately allege that the practice has an adverse impact on a protected
group.

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As such, Plaintiff has failed to state an adequate claim with respect to his disparate impact
or disparate treatment counts.
III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request to proceed in forma
pauperis [dkt 2] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint is HEREBY DISMISSED pursuant
to 28 U.S.C. § 1915(e).
IT IS SO ORDERED.

S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: September 5, 2012
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of
record by electronic or U.S. mail on September 5, 2012.

S/Marie E. Verlinde
Case Manager
[phone]

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