WASHINGTON v. SMITH et al

Filing 2

MEMORANDUM and ORDER resolving 1 MOTION for Leave to Proceed in forma pauperis filed by WHITNEY WASHINGTON. Signed by Judge David S. Cercone on 2/18/20. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WHITNEY WASHINGTON,
Plaintiff,
v.
NATHAN SMITH and ALEXA
ZIMMERMAN,
Defendants.

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2:17cv342
Electronic Filing

MEMORANDUM AND
ORDER OF COURT

Whitney Washington ("plaintiff") commenced this civil action, in forma pauperis, against
Nathan Smith and Alexa Zimmerman, asserting that he suffered employment discrimination
based on his race as well as information found in his criminal background check. See Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. Washington avers that he applied for
employment with the named defendants, and was assured that if he did not have a poor financial
or criminal record, he would be hired. Upon completion of the background check involving the
aforementioned records, plaintiff was not offered employment. Based on the reasoning below,
plaintiff's motion to proceed in forma pauperis will be GRANTED, and his complaint will be
DISMISSED for failure to state a claim upon which relief can be granted.
The United States Court of Appeals for the Third Circuit has instructed the district courts
to utilize a two-step analysis to determine whether to direct service of a complaint where the
plaintiff seeks to proceed in forma pauperis. First, the court must determine whether the litigant
is indigent within the meaning of 28 U.S.C. § 1915(a). Second, the court must determine

whether the complaint is frivolous or malicious under 28 U.S.C. § 1915(d).2 Roman v. Jeffes,
904 F.2d 192, 194 n.1 (3d Cir. 1990). The court finds plaintiff to be without sufficient funds to
pay the required filing fee. Thus, he will be granted leave to proceed in forma pauperis.
In Neitzke v. Williams, 490 U.S. 319 (1989), the Supreme Court identified two types of
legally frivolous complaints: (1) those based upon indisputably meritless legal theory, and (2)
those with factual contentions which clearly are baseless. Id. at 327. An example of the first is
where a defendant enjoys immunity from suit, and an example of the second is a claim
describing a factual scenario which is fanciful or delusional. Id. In addition, Congress has
expanded the scope of § 1915 to require that the court be satisfied that the complaint states a
claim upon which relief can be granted before it directs service; if it does not, the action shall be
dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii).
A review of plaintiff’s “complaint” reveals that the plaintiff does not aver a prima facie
case for employment discrimination, even under the relaxed standards governing pro se filings.
See West v. Prudential Ins. Co. of America, 462 Fed. Appx. 170, 171 (3d Cir. 2011). To be sure,
a company that refuses to hire an individual based on criminal history information received
during the pre-hire process may be liable under Title VII if that policy has a disparate impact on
members of a protected group. See Wheeler v. Pa. Dept. of Labor and Industry, No. 10-2022,
2012 WL 1057430 at *7 (E.D.Pa. March 29, 2012) (a company’s practice is considered to have a
disparate impact if it implements a “facially neutral employment practice or policy resulting in a
significantly discriminatory hiring pattern”). However, plaintiff fails to submit sufficient
information regarding any impact the company policy may have had on classes of individuals
protected by Title VII. And of course, a “mere possibility of misconduct” absent sufficient
2

This provision is now codified at §1915(e)(2)(B)(i).
2

factual matter, is not enough. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Based on the
information averred in the complaint, plaintiff has not set forth a claim for disparate impact in
violation of Title VII.
A company may also be liable under Title VII if it causes disparate treatment of an
individual, meaning it “treated [a] particular person less favorably than others because of the
plaintiff’s race, color, religion, sex, or national origin.” Watson v. Fort Worth Bank & Trust,
487 U.S. 977, 985-86 (1988). Once again, plaintiff’s complaint lacks sufficient factual
information to present a cognizable claim for relief on the basis of disparate treatment. See
Sarullo v. United States Postal Service, 352 F.3d 789, 798 (3d Cir. 2003) (a key part of a
disparate treatment analysis is whether the employer has treated others who are not in the
protected class more favorably).
It follows that the complaint does not state a claim upon which relief can be granted.
Accordingly, the following order is appropriate.

ORDER
AND NOW, this 18th day of February, 2020, for the reasons set forth in the memorandum
above, IT IS ORDERED that plaintiff’s motion to proceed in forma pauperis be, and the same
hereby is, GRANTED. The Clerk of Court shall file [1-1] plaintiff's complaint; and,
IT IS FURTHER ORDERED that plaintiff’s “complaint” be, and the same hereby is,

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DISMISSED for failure to state a claim.1

s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge

cc:

Whitney Washington
2926 Zephyr Avenue
Apartment 2
Pittsburgh, PA 15204
(Via First Class Mail)
(Via CM/ECF Electronic Mail)

1

As a general matter, a plaintiff is to be granted leave to amend a claim that has been dismissed
when an amendment might be able to cure the deficiencies resulting in the dismissal. Phillips v.
County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). This principle does not apply, however,
where the record indicates any attempt to do so would be futile. Id. at 236 (citing Grayson v.
Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002)). Here, it appears that plaintiff's
"claims" are predicated solely on speculation. Consequently, the claims have been dismissed and
the case has been closed. To the extent plaintiff believes that this disposition is in error, he may
file a motion for reconsideration and attach to it his proposed amended complaint. The court will
review any such motion/filing pursuant to the standards governing a motion for leave to amend.
Any motion seeking such relief shall be filed on or before March 6, 2020.
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