Aliyev v. FedEx Ground Package System

Filing 32

ORDER AND MEMORANDUM DECISION granting 16 Motion to Dismiss for Failure to State a Claim as to FedEx Ground Package System. Signed by Judge Tena Campbell on 4/3/14 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ISMAIL ALIYEV,
Plaintiff,

ORDER
AND

vs.

MEMORANDUM DECISION

FEDEX GROUND PACKAGE SYSTEM,
INC., and GNB TRUCKING, INC.,

Case No. 2:12-CV-1079-TC

Defendants.

Plaintiff Ismail Aliyev, a native of Russia who speaks English with a heavy accent, has
filed a federal civil rights discrimination claim against FedEx Ground Package System, Inc.
(FedEx Ground).1 He alleges that FedEx Ground dismissed him from his job as a commercial
long-haul truck driver2 on the basis of his national origin. FedEx Ground moves for dismissal of
Mr. Aliyev’s complaint under Federal Rule of Civil Procedure 12(b)(6). FedEx Ground contends
that at the moment an inspection officer at a weigh station in Iowa deemed Mr. Aliyev a “NonEnglish Speaking Driver” under the federal motor carrier regulations, he was not qualified as a
commercial truck driver and so, as a matter of law, FedEx Ground could no longer retain him as
a driver without violating the same federal regulations.
1

Mr. Aliyev has also named GNB Trucking, Inc. as a defendant. GNB has not filed any

motion.
2

Mr. Aliyev claims to be an employee of both FedEx Ground and GNB Trucking, Inc.
FedEx Ground disputes Mr. Aliyev’s “joint employer” allegation, but accepts it as true for
purposes of this motion.

The court finds that Mr. Aliyev has not pleaded sufficient facts to survive FedEx
Ground’s motion to dismiss, and allowing him to amend his complaint would be futile.
Accordingly, the court GRANTS FedEx Ground’s Motion to Dismiss.
FACTUAL ALLEGATIONS
The facts are taken from Mr. Aliyev’s Amended Complaint3 (“Complaint”) as well as the
citation and inspection report attached to Mr. Aliyev’s opposition brief (Doc. No. 24).4
Ismail Aliyev was born in the Soviet Union and immigrated to the United States in 2005
(he became a U.S. citizen in 2011). Although Mr. Aliyev has a heavy accent, he does speak
English.
He works as a long-haul commercial truck driver, a job that requires him to have a
Commercial Driver’s License (CDL). He has maintained his CDL while working as a truck
driver, including the period at issue in his Complaint. To obtain a CDL, a driver must pass an
English proficiency test.
In August 2010, he was hired by GNB Trucking, Inc. to drive a long-haul truck for FedEx
Ground. According to Mr. Aliyev, he was employed by both GNB and FedEx Ground, which, he
alleges, are joint employers.
3

Doc. No. 12.

4

When evaluating a Rule 12(b)(6) motion to dismiss, the court may consider facts outside
the four corners of the complaint without converting the motion to one for summary judgment if
the documents containing the facts are central to the plaintiff’s claims, are referenced in the
complaint, and are undisputedly authentic. Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir.
2008); Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006). Mr. Aliyev’s Amended
Complaint specifically refers to the citation and the inspection report. Accordingly, the court
incorporates information from those documents into its statement of facts. The court will not
consider any other evidence outside the pleadings, although it will review Mr. Aliyev’s
Declaration (Doc. No. 24-3) to determine whether granting leave to amend would be futile.
2

On August 25, 2011, Mr. Aliyev was driving a FedEx Ground truck and stopped at an
Iowa weigh station, where an inspection officer from the Iowa Department of Transportation
conducted a “driver/vehicle inspection.” The inspector issued a citation to Mr. Aliyev for
violating the “14 Hour Rule” (that is, he exceeded the maximum hours of service allowed in one
driving shift). The inspector also generated a separate inspection report. (See Exs. to Pl.’s
Opp’n Mem. (Doc. Nos. 24-1, 24-2).) In the inspection report, the inspector reported a violation5
of Rule “391.11B2” after determining that Mr. Aliyev was a “Non-English Speaking Driver.”
The inspector’s notice of violation referred to the federal rule codified at 49 C.F.R. § 391.11.
That rule provides that a person is qualified to drive a commercial motor vehicle if, among other
requirements, the driver “[c]an read and speak the English language sufficiently to converse with
the general public, to understand highway traffic signs and signals in the English language, to
respond to official inquiries, and to make entries on reports and records[.]” 49 C.F.R.
§ 391.11(b)(2). It further provides that “a motor carrier shall not require or permit a person to
drive a commercial motor vehicle unless that person is qualified.” 49 C.F.R. § 391.11(a)
(emphasis added).
Mr. Aliyev reported the notice of violation to GNB. For three more weeks, he continued
to drive for GNB and FedEx Ground. Then GNB fired him based on instructions from FedEx
Ground. FedEx Ground relied on the violation noted in the inspection report that Mr. Aliyev was
deemed to be a “Non-English Speaking Driver.” According to Mr. Aliyev’s Complaint, GNB
has acknowledged that Mr. Aliyev is a very good driver and that GNB wished to keep Mr. Aliyev

5

Mr. Aliyev emphasizes that the notice of violation was contained in an inspection report,
not in a formal citation.
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as a driver. But GNB followed FedEx Ground’s direction.
Mr. Aliyev offered to fly to FedEx Ground’s office to demonstrate his ability to speak
English. FedEx Ground declined his offer.
After he lost his job at FedEx Ground, Mr. Aliyev found another job as a truck driver
working for a lower rate of pay.
Mr. Aliyev alleges that he “was terminated based on an untrue allegation and/or
stereotype that he could not speak sufficient English. This allegation was based upon the fact
that the Plaintiff is of foreign descent and speaks with an accent.” (Compl. ¶ 24.) He further
alleges that FedEx Ground “chose not to investigate this faulty allegation, and/or rely upon GNB
Trucking’s assessment that Plaintiff was fit to perform his job (i.e., was sufficiently proficient in
English) and forced his termination.” (Id. ¶ 25.) He asserts that FedEx Ground’s decision to fire
him was motivated by discriminatory animus.
ANALYSIS
In his first cause of action, Mr. Aliyev alleges that FedEx Ground intentionally
discriminated against him on the basis of his national origin in violation of Title VII of the Civil
Rights Act.6 In his second cause of action, he alleges that FedEx Ground violated 42 U.S.C.

6

Mr. Aliyev additionally alleges a “cat’s paw” theory (also known as subordinate bias
liability) under Title VII. (See Pl.’s Opp’n at 5.) “In the employment discrimination context,
‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks decisionmaking power,
uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory
employment action.” EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484
(10th Cir. 2006). Here, Mr. Aliyev analogizes the Iowa inspector to a biased subordinate
working at FedEx Ground. The analogy is not persuasive. The Iowa inspector was an unrelated
third party, not a FedEx Ground employee or agent who provided a recommendation or
information that FedEx Ground opted to accept. Accordingly, the court finds that the theory does
not apply to Mr. Aliyev’s situation.
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§ 1981 through disparate treatment of non-native English-speaking drivers such as himself. And
in his third and final cause of action, he alleges under 42 U.S.C. § 1981 “upon information and
belief” that FedEx Ground engaged in “a pattern and practice of terminating employees which
[sic] are non-native English speakers.” (Id. ¶ 35.)
In response, FedEx Ground contends that Mr. Aliyev’s claims fail as a matter of law
because there is no set of facts that he alleges, or could allege, that would establish his claims.
Addressing the Title VII discrimination claim, FedEx Ground asserts that the allegations in the
Complaint establish that he was not qualified for the job, and so he cannot establish an essential
element of the claim. FedEx Ground makes a similar argument for Mr. Aliyev’s disparate
treatment claim. And, finally, FedEx Ground points out that Mr. Aliyev has pleaded no facts
whatsoever in support of his claim that FedEx Ground engaged in a pattern and practice resulting
in discrimination.
Standard of Review for a Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) requires dismissal when the plaintiff has not
stated a claim for which relief can be granted. Under the Rule 12(b)(6) standard of review, the
court must take all well-pleaded facts as true for purposes of analyzing the motion to dismiss.
Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007)). To survive a motion to dismiss, a plaintiff must plead enough
facts to state a plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference
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that the defendant is liable for the misconduct alleged.” Id.
Title VII Claim of Discrimination on the Basis of National Origin
When analyzing the merits of an employment discrimination claim (assuming there is no
direct evidence of an intent to discriminate), the court applies the three-step burden-shifting
framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Khalik, 671
F.3d at 1192; Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011). Under that
framework, the employee must first prove a prima facie case of discrimination. If the employee
satisfies the first step, a presumption of discrimination is created and the burden shifts to the
employer to provide a legitimate, non-discriminatory reason for the adverse employment action.
If the employer does so, the burden shifts back to the employee to show that his protected status
was the reason for his discharge and that the employer’s explanation is pretext for discrimination.
Khalik, 671 F.3d at 1192.
Because this case is before the court on a Rule 12(b)(6) motion to dismiss—where the
court may not consider evidence—Mr. Aliyev need not fully satisfy the McDonnell-Douglas
burden at this stage. Khalik, 671 F.3d at 1192; Hunt v. Central Consolidated Sch. Dist., 951 F.
Supp. 2d 1137, 1173-75 (D.N.M. 2013); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506,
510 (2002) (holding that the requirement to establish a prima facie case in an employment
discrimination claim is “an evidentiary standard, not a pleading requirement.”). Instead, the
court must look only to well-pleaded factual allegations in Mr. Aliyev’s Complaint.
“While specific facts are not necessary, some facts are” necessary in a complaint, to
survive a motion to dismiss. Khalik, 671 F.3d at 1193. As a guide to determining what types of
facts are necessary, the Tenth Circuit allows courts to consider the McDonnell-Douglas burden6

shifting analysis to determine the plausibility of the discrimination claim. Id.
In a discriminatory discharge case, a plaintiff establishes a prima facie case by showing
that (1) he belongs to a protected class; (2) he was qualified for the job; (3) despite his
qualifications, he was discharged; and (4) the job was not eliminated after his discharge. Rivera
v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (emphasis added). Here, FedEx
Ground focuses on the second element, contending that Mr. Aliyev has not alleged facts (and
cannot allege any facts) establishing that he was qualified for the job of commercial long-haul
truck driver.
Mr. Aliyev was cited by the Iowa inspector for failing to meet one of the requirements to
be qualified as a driver under the federal motor carrier safety regulations. Specifically, the Iowa
inspector noted on the Driver/Vehicle Inspection Report that Mr. Aliyev was a “Non-English
Speaking Driver.” Under the same safety regulations, FedEx Ground, as a motor carrier, may not
hire a “Non-English Speaking Driver” to transport its goods by truck. See 49 C.F.R. § 391.11(a)
(“a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless
that person is qualified to drive a commercial motor vehicle.”). If FedEx Ground retained Mr.
Aliyev as a driver, it potentially faced liability under the regulations.
Mr. Aliyev alleges that the inspector’s determination was incorrect because the Iowa
officer was mistaken (there was confusion about a bill of lading, and Mr. Aliyev attributes that
confusion to the Iowa officer’s mistaken issuance of the notice of violation) and so the notice of
violation was not valid. He alleges that he is, as a matter of fact, qualified for the job because,
among other things, he is sufficiently proficient in English (as demonstrated by, for example,
GNB’s belief in his qualifications under the regulation, and the continued validity of his CDL)
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and so he meets the requirements in 49 C.F.R. § 391.11(b)(2). For purposes of analysis under
Rule 12(b)(6), the court must assume the truth of Mr. Aliyev’s allegation that his actual skills
(and thus qualification for the job) demonstrate that the Iowa inspector mistakenly issued the
notice of violation, and so he was qualified for the job. Operating under that assumption, the
court finds that the Complaint, read in a light most favorable to Mr. Aliyev, contains enough
facts to infer that Mr. Aliyev would be able to establish a prima facie case of discrimination.
If this case were at the summary judgment stage, the burden would then shift to FedEx
Ground to provide a legitimate non-discriminatory reason for removing Mr. Aliyev as a truck
driver for FedEx Ground. Here, the court looks at the allegations. According to Mr. Aliyev’s
Complaint, FedEx Ground interpreted the notice of violation to immediately bar FedEx Ground
from allowing Mr. Aliyev to drive a FedEx Ground truck. In other words, regardless of whether
Mr. Aliyev speaks sufficient English, once that violation was noted on the inspection report,
retaining Mr. Aliyev as a driver would have exposed FedEx Ground to potential liability for
violating the federal motor safety carrier regulations. Under Mr. Aliyev’s own allegations,
FedEx Ground offered a legitimate non-discriminatory reason for discharging him.
To avoid dismissal, Mr. Aliyev must allege facts that create a plausible inference that
FedEx Ground used the notice of violation as pretext for discrimination. “Pretext can be shown
by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer did not act for the asserted
non-discriminatory reasons.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)
(internal citations and quotation marks omitted).
8

Under the third prong of the McDonnell-Douglas framework, the court should not ask “whether
the employer’s reasons were wise, fair or correct; the relevant inquiry is whether the employer
honestly believed its reasons and acted in good faith upon them. Even a mistaken belief can be a
legitimate, non-pretextual reason for an employment decision.” Riggs v. AirTran Airways, Inc.,
497 F.3d 1108, 1118-19 (10th Cir. 2007) (internal citations and quotation marks omitted;
emphasis added).
In other words, although the parties disagree about the legal effect of the Iowa inspector’s
finding, the court need not resolve that dispute because the court does not look at whether FedEx
Ground’s reason was actually correct. Even if FedEx Ground incorrectly interpreted the legal
effect of the notice of violation, under Riggs the question is not whether FedEx Ground’s
decision to discharge Mr. Aliyev was based on a faulty understanding of the facts and
interpretation of the regulations, but rather whether the alleged facts create an inference that the
reason provided was not an honest mistake and that FedEx Ground did not rely on the notice of
violation in good faith.
Again, Mr. Aliyev need not prove his case at this stage, but he must at least allege
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Co. v. Twombly, 550 U.S.
544, 570 (2007)). Although he asserts that there are enough facts in the Complaint to call into
question FedEx Ground’s stated reason, the court disagrees.
He alleges that FedEx Ground should not have relied on the notation without first
confirming whether it was valid and self-executing before making its decision to remove him as a
driver. He further alleges that if FedEx Ground had investigated, it would have discovered that
9

the designation of Mr. Aliyev as a Non-English Speaking Driver was wrong and invalid. He says
that FedEx Ground blindly relied on the Iowa inspector’s notation and wilfully turned its head
the other way (especially in light of GNB’s assertion that Mr. Aliyev was qualified) because he is
Russian.
Mr. Aliyev disagrees with how FedEx Ground handled the matter, arguing that FedEx
Ground should have retained him despite the inspector’s citation to the rule, and then investigate
before acting. But he does not cite to any rule or policy that required FedEx Ground to do so.
Absent any citation to authority establishing FedEx Ground’s duties at that point, his
disagreement with FedEx Ground’s hasty decision and its interpretation of the effect of the notice
of violation does not give rise to any inference that FedEx Ground terminated him on the basis of
national origin, especially in light of the language of the regulations, which could arguably
support FedEx Ground’s decision. His allegations suggest nothing more than an “honestly held
(even if erroneous) business judgment,” which the court may not second-guess (even if the
employer’s decision was mistaken). Riggs v. Airtran Airways, Inc., 497 F.3d 1108, 1118-19
(10th Cir. 2007).
Mr. Aliyev notes that the Iowa inspector did not fine him or pull him from service when
the notice of violation was issued and that FedEx Ground’s refusal to give this fact credence
discredits its proffered reason. In essence, Mr. Aliyev concludes, without considering other
possibilities, that the Iowa inspector did not believe that the notice of violation required Mr.
Aliyev to be pulled from service. Determining the reason for the inspector’s action would be
speculation. The same can be said for Mr. Aliyev’s point that the notation did not appear in an
actual citation but was in an inspection report. The court will not speculate why the inspector
10

chose to record his findings in that way. The fact is, the inspector made a determination.
Whether he thought it needed a separate citation is irrelevant because the question is whether
FedEx Ground’s interpretation of the inspection report looks like pretext.
Mr. Aliyev points out that he drove for three more weeks before FedEx Ground removed
him from service. But he does not allege that FedEx Ground had immediate notice of the stated
violation (Mr. Aliyev says he informed GNB about it) and that the company ignored the effect of
the notice of violation until three weeks later. Even though FedEx Ground did not act
immediately but instead allowed him to continue driving for three weeks, such a delay (a threeweek lag in time at a large corporation) followed by a summary dismissal does not infer
discriminatory animus. Such a fact does not contradict or otherwise undermine the explanation
provided by FedEx.
The allegations set forth by Mr. Aliyev do not weaken the inference that FedEx Ground
honestly believed it had to terminate Mr. Aliyev as a driver in order to protect itself from
liability. For the foregoing reasons, the court finds that Mr. Aliyev does not allege facts in his
Complaint that plausibly suggest FedEx Ground acted based on discriminatory animus rather
than a legitimate business reason.
Claim of Disparate Treatment in Violation of 42 U.S.C. § 1981
To survive FedEx Ground’s motion to dismiss his § 1981 disparate treatment claim, Mr.
Aliyev must allege facts that, if true, would establish that (1) he is a member of a protected class;
(2) he suffered an adverse employment action; and (3) employees similarly situated in all relevant
respects received different treatment than he received. Carney v. City & County of Denver, 534
F.3d 1269, 1273 (10th Cir. 2008) (setting forth elements of prima facie case of disparate
11

treatment); McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006). His Complaint
fails to allege facts sufficient to establish the third element.
Nowhere in his Complaint does he state in more than conclusory fashion that similarly
situated drivers received different treatment. The most he provides is a statement in his
Declaration that he knows “of two other truck drivers in Salt Lake City who have worked for
FedEx and have also been fired after receiving inspections that noted ‘Non-English Speaking
Driver.’ Both of these drivers are Russian, like [Mr. Aliyev], and both also speak English with
an accent, like [Mr. Aliyev does.]” (Aliyev Decl. at p. 2.) Even if this information were added to
his Complaint, it would not state a claim for disparate treatment. He does not identify any
similarly-situated co-worker who was treated differently. The information about the Russian
drivers simply shows that FedEx Ground acted consistently when a driver was deemed to be a
“Non-English Speaking Driver.”
In a recent case, the Sixth Circuit came to a similar conclusion in a matter where the
defendant sought dismissal of the plaintiff’s disparate treatment claim. In 16630 Southfield Ltd.
Partnership v. Flagstar Bank, FSB, 727 F.3d 502 (6th Cir. 2013), the Sixth Circuit upheld the
dismissal of an Iraqi plaintiff’s claim for disparate treatment because the allegations were wholly
conclusory. In that case, the plaintiff alleged that the defendant bank discriminated against him
based on his national origin when the bank refused to re-finance his loan. In the complaint, the
plaintiff alleged, for example, that “‘upon information and belief’ [the defendant bank] has
refinanced delinquent borrowers who ‘were Caucasian’ or ‘not . . . members of minority groups’”
and that “‘upon information and belief’ [the defendant bank] has refinanced ‘non-Iraqiborrowers ‘where the debt to equity ratio is significantly less than exists regarding Plaintiffs.”
12

Flagstar Bank, 727 F.3d at 506. There, the court concluded that dismissal was appropriate:
These are precisely the kinds of conclusory allegations that Iqbal and Twombly
condemned and thus told us to ignore when evaluating a complaint’s sufficiency.
No doubt disparate treatment of similarly situated people may support an
inference of discrimination. But the plaintiffs have not identified any similarly
situated individuals whom [the defendant bank] treated better. They have merely
alleged their “belief” that such people exist. These “naked assertions devoid of
further factual enhancement” contribute nothing to the sufficiency of the
complaint.
Id. (quoting Iqbal, 554 U.S. at 678) (internal citations omitted). Here, Mr. Aliyev provides no
“factual enhancement” to support his conclusory statements.
In response to FedEx Ground’s argument that his claim contain no factual allegations
whatsoever, he argues that he should be given the chance to conduct discovery before his
disparate treatment claim is rejected outright. He says that “[h]ere, the parties have done no
discovery, and as such, there is no evidence regarding how FedEx treats other drivers who have
received citations that may affect its safety rating. Without information like that, it is impossible
to determine whether Mr. Aliyev’s termination was the result of business necessity or
discrimination.” (Pl.’s Opp’n (Doc. No. 24) at 7.) The difficulty with that argument is that Mr.
Aliyev does not point to even one situation where a similarly-situated co-worker may have been
treated differently. Without at least a scintilla of evidence (or, in this case, at least one factual
allegation) from which the court could infer that disparate treatment may be an issue at FedEx
Ground, the court cannot justify granting Mr. Aliyev permission to conduct what would
essentially be a fishing expedition.
Mr. Aliyev’s disparate treatment claim fails for another reason. A disparate treatment
claim, like a discriminatory discharge claim, would also be analyzed under the McDonnell-

13

Douglas three-part framework. See, e.g., Drake v. City of Fort Collins, 927 F.2d 1156, 1160
(10th Cir. 1991) (applying McDonnell-Douglas burden-shifting analysis to disparate treatment
claim). Because the court has already found that the allegations do not create an inference that
FedEx Ground’s proffered reason was pretext, Mr. Aliyev’s disparate treatment claim fails for
the same reasons the court dismisses his Title VII claim.
Based on the foregoing, the court finds that FedEx Ground is entitled to dismissal of Mr.
Aliyev’s disparate treatment claim under 42 U.S.C. § 1981.
Disparate Impact Claim and 42 U.S.C. § 1981
Mr. Aliyev has asserted a disparate impact claim under 42 U.S.C. § 1981. However,
although disparate impact claims are available under Title VII, they are not available under
§ 1981. Under Title VII, a disparate impact claim does not require a showing of discriminatory
intent, but instead forbids “‘practices that are fair in form, but discriminatory in operation[.]’”
Tabor v. Hilti, Inc., 703 F.3d 1206, 1220 (10th Cir. 2013) (quoting Lewis v. City of Chicago, 560
U.S. 205, 130 S. Ct. 1291, 2197 (2010)). In contrast, a claim under 42 U.S.C. § 1981 requires a
showing of purposeful discrimination before a party can be held liable. Consequently, disparate
impact claims, which by their nature do not require a finding of discriminatory intent, are not
cognizable under Section 1981. See Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th
Cir. 1991) (“Disparate impact claims that do not ‘raise a presumption of discriminatory purpose’
are ‘insufficient to sustain a cause of action under sections 1981 and 1983.’”) (quoting New
Mexico ex. rel. Candelaria v. City of Albuquerque, 768 F.2d 1207, 1209 (10th Cir. 1985)); see
also Sandoval v. City of Boulder, 388 F.3d 1312, 1324 n.5 (10th Cir. 2004) (Ҥ 1981 requires
purposeful discrimination and therefore does not apply to disparate impact claims”) (citing
14

Drake, 927 F.2d at 1162). If Mr. Aliyev meant to bring his claim under § 1981, his claim fails as
a matter of law. But, even assuming Mr. Aliyev mistakenly cited to 42 U.S.C. § 1981 when he
actually meant to list Title VII as the basis for his disparate impact claim, his claim still fails for
the same reasons his discriminatory discharge claim under Title VII fails.
Moreover, his allegations of disparate impact are extraordinarily conclusory. The sum
total of his allegations reads as follows: “Defendants were joint employers of Plaintiff. Upon
information and belief, Defendant FedEx has a pattern and practice of terminating employees
which [sic] are non-native English speakers. This practice has a disparate impact on individuals
of different national origins and/or ethnicities. This practice violates 42 U.S.C. § 1981.” (Am.
Compl. ¶¶ 34-37.) Both Twombly and Iqbal prohibit such conclusory statements. And nothing
in the Complaint’s “General Allegations” provides supplemental information that takes Mr.
Aliyev’s claim out of the conclusory allegation realm prohibited by Iqbal and Twombly. To the
extent Mr. Aliyev blames the lack of specific facts on his inability to access information that is in
the hands of his employer (as he claims for his disparate treatment claim), he does not allege any
fact whatsoever that would create at least some justification for discovery. As noted above,
granting discovery based on the allegations before the court would essentially be granting a
fishing expedition.
FedEx Ground is entitled to dismissal of Mr. Aliyev’s disparate impact claim.
Request For Leave To Amend Complaint
Mr. Aliyev asks the court, in the alternative, for leave to amend his Complaint to add
facts that would satisfy the Rule 12(b)(6) pleading standard. The Federal Rules of Civil
Procedure provide that a court should freely give leave to amend “when justice so requires.”
15

Fed. R. Civ. P. 15(a)(2). But the court may deny the request for leave to amend if the proposed
amendment would be futile. Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010). An
amendment would be futile when the proposed amended complaint would not survive a motion
for summary judgment. Bauchman v. West High School, 132 F.3d 542, 561-62 (10th Cir. 1997).
In his Declaration, Mr. Aliyev proffers the following additional facts to support his
request for leave to amend: he knows “of two other truck drivers in Salt Lake City who have
worked for FedEx and have also been fired after receiving inspections that noted ‘Non-English
Speaking Driver.’ Both of these drivers are Russian, like [Mr. Aliyev], and both also speak
English with an accent, like [Mr. Aliyev does.]” (Aliyev Decl. at p. 2.) (Everything else in his
Declaration has already been stated in his Complaint, so the “two truck drivers” fact is the only
new one). But even considering these sworn facts and assuming their truth, the court finds that
Mr. Aliyev does not state a claim for employment discrimination under Title VII or 42 U.S.C.
§ 1981. Indeed, the fact that two other Russian truck drivers experienced the same problem
suggests that FedEx Ground acted consistently when handling such violations.
Moreover, the Complaint and Mr. Aliyev’s Declaration are devoid of any factual
allegation that suggests a discriminatory animus. Such an allegation might include, for example,
a derogatory remark by a decision-maker, or an allegation of more lenient treatment of drivers
whose native language was English and who had been cited for something that created the same
potential liability for FedEx Ground. But he does not offer anything like that. And without that,
Mr. Aliyev has no claim to state, even if he were given leave to amend.
After considering the additional allegations in Mr. Aliyev’s Declaration, the court finds
that amendment would be futile.
16

ORDER
For the foregoing reasons, FedEx Ground Package System, Inc.’s Motion to Dismiss
(Doc. No. 16) is GRANTED.
DATED this 3rd day of April, 2014.
BY THE COURT:

TENA CAMPBELL
U.S. District Court Judge

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