Waldon et al v. Cincinnati Public Schools

Filing 16

OPINION AND ORDER denying 6 Defendant's Motion to Dismiss. Signed by Judge S Arthur Spiegel on 4/24/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
:
:
:
:
:
:
:
:
:
:

GREGORY WALDON, et al.,
Plaintiffs,
v.
CINCINNATI PUBLIC SCHOOLS,
Defendant.

NO:

1:12-CV-00677

OPINION AND ORDER

This matter is before the Court on Defendant Cincinnati
Public Schools’ Motion to Dismiss (doc. 6), Plaintiffs’ Response in
Opposition (doc. 7), and Defendants’ Reply (doc. 8).

For the

reasons indicated herein, the Court DENIES Defendant’s motion.
I.

Background
The

state

of

Ohio

enacted

legislation,

H.B.

190,

effective November 14, 2007, which amended Ohio law to require
criminal background checks of current school employees, even those
whose duties did not involve the care, custody, or control of
children (doc. 1).

If an employee had been convicted of any of a

number of specified crimes, no matter how far in the past they
occurred, nor how little they related to the employee’s present
qualifications,

the

legislation

required

the

employee

to

be

terminated (Id.).
Plaintiffs Gregory Waldon and Eartha Britton both worked
for many years and provided Defendant Cincinnati Public Schools
with excellent service (Id.).

In late 2008, Defendant discharged

Plaintiffs pursuant to the new law, based on criminal matters that
were decades old (Id.).1

Both Plaintiffs are African-American

(Id.). At the time of Plaintiffs’ discharge there was no exception
allowing for Plaintiffs to demonstrate rehabilitation so as to
preserve their employment (Id.).2

Defendant terminated a total of

ten employees, nine of whom were African-American.
Plaintiffs bring claims for racial discrimination in
violation of federal and state law, contending their terminations
were based on state legislation that had a racially discriminatory
impact (doc. 1).

Defendant filed the instant motion to dismiss,

contending Plaintiffs have failed to state a claim for which relief
can be granted, essentially because it was merely complying with a
state mandate (doc. 6).

Plaintiffs have responded, and Defendant

has replied (docs. 7, 8) such that this matter is ripe for
1

In 1977, Plaintiff Gregory Waldon was found guilty of
felonious assault and incarcerated for two years (doc. 1).
Defendant’s civil service office supported Waldon in proceedings
before the Ohio Parole Board, indicating it would be happy to
offer Waldon employment, which it did in early 1980 (Id.).
Waldon worked for nearly thirty years for Defendant, most
recently as a “systems monitor,” with no contact with school
children (Id.). Waldon’s performance was excellent and of value
to Defendant and to the public (Id.).
Plaintiff Eartha Britton was convicted in 1983 of
acting as a go-between in the purchase and sale of $5.00 of
marijuana (Id.). She worked for Defendant for eighteen years as
an instructional assistant (Id.).
2

However, after their termination the rule was amended so as
to allow those in Plaintiffs’ shoes to demonstrate
rehabilitation. O.A.C. 3301-20-03. In fact, Plaintiffs were
both eligible to apply for reemployment, but did not.

2

decision.
II.

Applicable Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) requires the Court to determine whether a
cognizable claim has been pled in the complaint. The basic federal
pleading requirement is contained in Fed. R. Civ. P. 8(a), which
requires that a pleading "contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief."
Westlake v. Lucas, 537 F.2d 857, 858 (6th
Pardus, 551 U.S. 89 (2007).

Cir. 1976); Erickson v.

In its scrutiny of the complaint, the

Court must construe all well-pleaded facts liberally in favor of
the party opposing the motion.
236 (1974).

Scheuer v. Rhodes, 416 U.S. 232,

A complaint survives a motion to dismiss if it

“contain[s] sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”

Courie v. Alcoa

Wheel & Forged Products, 577 F.3d 625, 629-30 (6th Cir. 2009),
quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
A motion to dismiss is therefore a vehicle to screen out
those

cases

implausible.

that

are

impossible

as

well

as

those

that

are

Courie, 577 F.3d at 629-30, citing Robert G. Bone,

Twombly, Pleading Rules, and the Regulation of Court Access, 94
IOWA L. REV. 873, 887-90 (2009).

A claim is facially plausible

when the plaintiff pleads facts that allow the court to draw the

3

reasonable inference that the defendant is liable for the conduct
alleged.

Iqbal, 129 S.Ct. at 1949.

Plausibility falls somewhere

between probability and possibility. Id., citing Twombly, 550 U.S.
at 557.

As the Supreme Court explained,

“In keeping with these principles a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to
the assumption of truth. While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. 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.” Id. at 1950.
The

admonishment

to

construe

the

plaintiff's

claim

liberally when evaluating a motion to dismiss does not relieve a
plaintiff of his obligation to satisfy federal notice pleading
requirements
conclusions.

and

allege

Wright,

more

Miller

than
&

Procedure: § 1357 at 596 (1969).

bare

Cooper,

assertions
Federal

of

legal

Practice

and

"In practice, a complaint . . .

must contain either direct or inferential allegations respecting
all of the material elements [in order] to sustain a recovery under
some viable legal theory."

Car Carriers, Inc. v. Ford Motor Co.,

745 F.2d 1101, 1106 (7th Cir. 1984), quoting In Re: Plywood
Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. 1981); Wright,
Miller & Cooper, Federal Practice and Procedure, § 1216 at 121-23
(1969).

The United States Court of Appeals for the Sixth Circuit

clarified the threshold set for a Rule 12(b)(6) dismissal:
[W]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind Rule 8 and the
4

concept of notice pleading.
A plaintiff will not be
thrown out of court for failing to plead facts in support
of every arcane element of his claim.
But when a
complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th
Cir. 1988).
III.

Discussion
Defendant contends the Court should dismiss Plaintiffs’

Complaint because it simply followed Ohio law when it terminated
Plaintiffs’ employment (doc. 6).

Defendant contends it maintained

no particular employment practice that caused a disparate impact,
and that it was a business necessity for it to follow Ohio law
(Id.).

Defendant further argues should this case proceed, it will

be in the position of defending a criminal records policy it had no
role in creating (Id.).
of

knowing

whether

Moreover, Defendant argues it had no way
the

facially-neutral

criminal

records

requirement resulted in a statewide disparate impact (Id.).
Finally, Defendant indicates its efforts in assisting Waldon with
his release on parole some thirty years ago, shows it harbored no
animus toward him, and that but for the state mandate, Waldon would
not have been let go (Id.).
Plaintiffs respond that Title VII trumps state law, such
that their terminations amount to “unlawful employment practices”
based on disparate impact (doc. 7).

Compliance with a state law,

according to Plaintiffs, is no defense, because a violation is a
violation (Id.).

In Plaintiffs’ view, whether Defendant was
5

complying in good faith to state law goes to the remedy the Court
should ultimately craft, and not to whether the terminations were
in violation of Title VII (Id.).
The parties devote substantial argument in their briefing
as to the question of whether it is even possible to attack a
facially-neutral policy based on a state mandate.

In Defendant’s

view, Title VII does not require preemption of a facially neutral
state law unless such law “purports” to discriminate (doc. 6,
citing

42

U.S.C.

§

2000e-7).

Plaintiff

responds

that

such

interpretation ignores language regarding “the doing of any act. .
.which

would

be

an

unlawful

employment

practice,”

and

is

inconsistent with the purposes of Title VII (Id. citing 42 U.S.C.
§ 2000h-4).

Moreover, Plaintiff cites Ridinger v. General Motors

Corp., 325 F.Supp. 1089 at 1094 (S.D. Ohio, 1971) in which the
Court noted that Congress “intended to supersede all provisions of
State law” which are inconsistent with Title VII.
The Supreme Court has recognized two distinct types of
Title VII employment discrimination: “disparate treatment,” and
“disparate impact.”
matter,

as

Plaintiffs

it
do

is
not

Disparate treatment is not alleged in this
based

on

contend

proof

of

Defendant

discriminatory
intentionally

motive.

fired

them

because of their race; Defendant indicates Plaintiffs were good
employees and it only fired them due to the state mandate.
Disparate impact results from facially neutral employment
practices that have a disproportionately negative effect on certain

6

protected

groups

and

which

cannot

be

justified

by

business

necessity.

International Bhd. of Teamsters, 431 U.S. at 335-36 n.

15 (1977).

Unlike disparate treatment, disparate impact does not

require a showing of discriminatory motive, since the claim is
based on statistical evidence of systematic discrimination.

Id.

The classic example of such a claim arose in Griggs v. Duke Power
Co., 401 U.S. 424 (1971), in which the Defendant required employees
to have high school diplomas and pass intelligence tests as a
condition of employment in or transfer to certain jobs.

Although

the practice appeared neutral on its face, its effect was to freeze
the

status

quo

disqualified

at

such
a

that

higher

African-American

rate

and

the

employees

practice

had

were

no

real

Plaintiffs

have

relationship to successful job performance.
The

Court

finds

no

question

that

adequately plead a case of disparate impact.

Although there

appears

not

to

be

discriminate,

no

question

intent

is

that

Defendant

irrelevant

and

the

did

intend

practice

that

to
it

implemented allegedly had a greater impact on African-Americans
than others.

The Court rejects Defendant’s view that the state

law must “purport” to discriminate in order to be trumped by Title
VII.

Such a view would gut the purpose of Title VII, and would

run contrary to Griggs, as well as subsequent authorities in which
state mandates were challenged.

Palmer v. General Mills, 513 F.2d

1040 (6th Cir. 1975), Gulino v. New York State Educ. Dept., 460 F.3d
361, 380 (2d Cir. 2006).

Where, as alleged here, a facially-

7

neutral employment practice has a disparate impact, then Plaintiffs
have alleged a prima facie case.
An employer may defend against a prima facie showing of
disparate impact only by showing that the challenged practice is
“job related for the position in question and consistent with
business necessity.”

42 U.S.C. § 2000e-2(k)(1)(A)(I).

Plaintiff

correctly signals that “business necessity” is a narrow concept,
and that normally an employment practice must have a manifest
relationship to the employment in question (doc. 7, citing Griggs,
401 U.S. 424, 431-432).

However, here the employment practice did

not seek to measure technical aptitude or ability but served as an
ultimate bar to employment due to some prior unlawful act committed
by the employees.
differently.

Courts have viewed this sort of exclusion
Douglas

Transportation

Authority,

El

v.

479

F.3d

Southeastern
232,

Pennsylvania

242-45

(3d.

Cir.

2007)(criminal conviction hiring policies concern the management of
risk, a policy making distinctions among crimes upheld); Ahmed v.
Kmart, Sears, No. 08-CV-10454, 2008 U.S. Dist. LEXIS 114937, fn.1
*6(E.D. Mich., October 2, 2008)(noting business necessity defense
could apply to criminal conviction policy since it appears to
distinguish between applicants that pose an unacceptable level of
risk and those that do not); EEOC v. Carolina Freight Carriers Co.,
723 F. Supp. 734 (S.D. Fla. 1989)(upholding policy barring those
with prior theft records from truck driver position; decided under
definition

of

“business

necessity”

8

abrogated

by

statute

as

explained in Douglas El, 479 F.3d 232, 241); and Buck Green v.
Missouri

Pacific

Railroad

Co.,

523

F.2d

1290

(8th

Cir.

1975)(Defendant enjoined from using criminal convictions as an
absolute bar to employment).
The Court finds instructive the analysis of the Eighth
Circuit in Buck Green, 523 F.2d 1290, 1296.

The Buck Green court

examined the Supreme Court’s decision in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), noting that the high court made a
distinction between the Griggs sort of neutral testing requirements
that had a disparate impact and the case where the applicant had
engaged in a seriously disruptive act.

Justice Powell’s opinion

for a unanimous court added a caveat to its holding with these
words:
Petitioner [McDonnell Douglas] does not seek his
[Green’s] exclusion on the basis of a testing device
which overstates what is necessary for competent
performance, or through some sweeping disqualification of
all those with any past record of unlawful behavior,
however remote, insubstantial, or unrelated to the
applicants’s personal qualifications as an employee. 411
U.S. at 806 (emphasis added).
The Buck Green decision perceived such comment “to suggest that a
sweeping disqualification for employment resting on solely past
behavior can violate Title VII where that employment practice has
a disproportionate racial impact and rests upon a tenuous or
insubstantial basis.”

523 F.2d at 1296.

The Court finds the policy at issue in this case a close
call.

Obviously the policy as applied to serious recent crimes

9

addressed a level of risk the Defendant was justified in managing
due to the nature of its employees’ proximity to children.
However, in relation to the two Plaintiffs in this case, the policy
operated to bar employment when their offenses were remote in time,
when Plaintiff Britton’s offense was insubstantial, and when both
had demonstrated decades of good performance.

These Plaintiffs

posed no obvious risk due to their past convictions, but rather,
were valuable and respected employees, who merited a second chance.
“To deny job opportunities to these individuals because of some
conduct which may be remote in time or does not significantly bear
upon the particular job requirements is an unnecessarily harsh and
unjust burden.”

Buck Green, 523 F.2d at 1298.3

Under these

circumstances, the Court cannot conclude as a matter of law that
Defendant’s policy constituted a business necessity.
Moreover, the Court cannot conclude that Defendant was
compelled to implement the policy, when it saw that nine of the ten
it was terminating were African-American.
VII

trumps

state

mandates,

and

As stated above, Title

Defendant

could

have

raised

questions with the state board of education regarding the stark
disparity it confronted.

3

The Court further notes that though the Equal Employment
Opportunity Commission Guidelines are not entitled to great
deference, Section 605 of its Compliance Manual addresses the
issue of arrest and conviction records. It states that an
applicant may be disqualified from a job based on a previous
conviction only where the employer takes into consideration the
nature of the job, the nature and the seriousness of the offense,
and the length of time since it occurred.
10

IV.

Conclusion
Having reviewed this matter, the Court concludes that

Plaintiffs’ Complaint raises plausible allegations of disparate
impact discrimination.

Defendant’s implementation of the state

mandate, as alleged, could very well amount to a violation of Title
VII.

Accordingly, the Court DENIES Defendant Cincinnati Public

Schools’ Motion to Dismiss (doc. 6).

SO ORDERED.

Dated: April 24, 2013

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

11