Washington v. Steve et al

Filing 43

ORDER signed by Judge J P Stadtmueller on 11/18/13: granting 27 Chase's Motion to Dismiss, and Plaintiff's Title VII and § 1983 claims are DISMISSED with prejudice and Plaintiff's WFEA claim is DISMISSED without prejudice; gra nting 23 FDIC's Motion to Dismiss, and Plaintiff's claims against the FDIC are DISMISSED without prejudice; and, denying as moot 21 Plaintiff's Motion for Injunctive Relief and a Pretrial Conference. See Order. (cc: Plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LEVANTE WASHINGTON,
Plaintiff,
v.

Case No. 13-CV-343-JPS

EDWARD J. STEVE, JOHN LOMBARDO,
JP MORGAN CHASE BANK, and FEDERAL
DEPOSIT INSURANCE CORPORATION,

ORDER

Defendants.
The plaintiff, Levante Washington, filed a pro se complaint on March
25, 2013. (Docket #1). He simultaneously filed a motion for leave to proceed
in forma pauperis. (Docket #2). In his complaint, Mr. Washington claimed that
he applied for a job at JP Morgan Chase Bank, N.A. (“Chase”) through a
staffing agency. (Docket #1, at 3). Chase allegedly declined to hire him as a
result of a prior felony conviction. (Docket #1, at 3). Under Section 19 of the
Federal Deposit Insurance Act, 12 U.S.C. § 1829 (“Section 19”), Chase would
likely have been subject to significant punishment had it hired Mr.
Washington, as Mr. Washington’s crime of armed robbery was a “crime of
dishonesty” and neither Mr. Washington nor the bank had received a waiver
from the Federal Deposit Insurance Corporation (“the FDIC”) to allow Mr.
Washington to work in a bank in spite of his criminal history. After Chase
declined to hire him, Mr. Washington applied to the FDIC, who is also a
named defendant in this case, for a waiver that would allow him to work in
a financial setting. (Docket #1, at 4). Mr. Washington did not receive a
decision on his waiver application and, therefore, filed this case, asserting
that Chase and the FDIC (along with agents for both parties) had violated his
civil rights and due process. (Docket #1, at 4).

The Court examined Mr. Washington’s complaint and determined that
it was not frivolous or malicious and, therefore, allowed Mr. Washington to
proceed in forma pauperis. (Docket #4). Mr. Washington’s complaint was
served on the defendants.
Thereafter, the FDIC requested a stay of the proceedings to allow it to
review Mr. Washington’s application. (Docket #9). Apparently, because Mr.
Washington’s application for a Section 19 waiver was incomplete, in
conjunction with inadvertent neglect on the FDIC’s part, the FDIC had never
formally reviewed Mr. Washington’s application. (Docket #9, at 1). The Court
granted the requested stay. (Docket #13). Apparently, while the stay was
pending, the FDIC reviewed Mr. Washington’s application and was prepared
to deny it. (See Docket #34, Ex. 1). However, just before the FDIC entered its
final decision, Mr. Washington withdrew his application from further
consideration. (Docket #36, Ex. A).
At the expiration of the stay, the FDIC reported back to the Court that
Mr. Washington had withdrawn his application, and thus it anticipated that
Mr. Washington would withdraw his complaint. (Docket #20).
That did not occur. Instead, Mr. Washington waited approximately a
month and then filed a motion for injunctive relief and a pretrial conference.
(Docket #21).
Mr. Washington’s refusal to dismiss his case ultimately necessitated
that the defendants take some further action. Thus, Chase1 moved to dismiss
Mr. Washington’s complaint pursuant to Rule 12(b)(6) of the Federal Rules

1

The Court refers to Chase and its defendant agent, Edward Steve, jointly
as “Chase” for the balance of this order.

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of Civil Procedure. (Docket #27). The FDIC,2 likewise, filed a motion seeking
dismissal of the complaint under either Rule 12(b)(1) or Rule 12(b)(6) or, in
the alternative, for summary judgment under Rule 56. (Docket #23). Mr.
Washington responded to those motions. (Docket #33, #34). Thereafter, he
filed two additional amended briefs (Docket #37, #40) that are not properly
before the Court, because Mr. Washington did not receive leave of the Court
to file them, but which the Court has nonetheless reviewed. The defendants
filed their reply briefs. (Docket #36, #38). The matter is, thus, fully briefed,
and the Court turns to addressing it.
Because the defendants seek different forms of relief, and because the
potential claims against each are slightly different, the Court will address the
two parties’ motions separately. Before proceeding, the Court also notes that
it has reviewed Mr. Washington’s complaint liberally, as it must because he
filed his complaint pro se. Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam).
Doing so, it—along with the defendants—has identified a number of theories
under which Mr. Washington may be proceeding. Even applying that liberal
construction and searching for theories under which Mr. Washington may
be proceeding, the Court must ultimately determine that it must dismiss his
complaint for the various reasons that follow.
1.

CLAIMS AGAINST CHASE
Mr. Washington claims that Chase discriminated against him when it

failed to hire him as a result of his criminal conviction. The Court can identify
only two claims under which Mr. Washington could be proceeding against
Chase: either a Title VII racial discrimination claim under 42 U.S.C. § 2000e,

2

Likewise, the Court refers to both the FDIC and its defendant agent, John
Lombard, jointly as “the FDIC” for the balance of this order.

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et seq. (the “Title VII claim”); a Wisconsin Fair Employment Act claim under
Wis. Stat. § 111.31 (the “WFEA claim”); or, though very unlikely, a 42 U.S.C.
§ 1983 claim for deprivation of his civil rights. Mr. Washington cannot state
any plausible set of facts upon which the Court could grant relief against
Chase on either of those claims (or any other claims), and therefore the Court
is obliged to grant Chase’s motion to dismiss the complaint as it regards
Chase, under Rule 12(b)(6) and Rule 12(b)(1), as is further discussed, below.
The Court should not dismiss Mr. Washington’s complaint unless it
does not “contain[ ] sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557
(2007)). The Court determines that is the case here, and therefore dismisses
Mr. Washington’s complaint as it regards Chase.
1.1

Title VII Claim

To begin, the Court notes that Title VII does not prohibit
discrimination on the basis of a criminal record. 42 U.S.C. § 2000e-2(a).
Thus, the only potential argument that Mr. Washington could make
in this regard is that Chase’s refusal to hire him on the basis of his race—or
perhaps failure to file an application for a waiver on his behalf—has the
discriminatory effect of denying him employment on the basis of his race.
Mr. Washington seems to hint at this argument in his complaint. (Docket #1,
at 3 (referencing the “discriminatory effect of defendant’s failure to assert
plaintiff’s rights.”)).
Mr. Washington has not, however, asserted any facts that could
support this claim, aside from broad legal conclusions. He has not alleged
that members of his race were more often refused jobs on the basis of their

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race or that Chase refused to file waiver applications in some racially
discriminatory manner. He has not stated any facts upon which the Court
could grant relief. Thus, dismissal of his potential Title VII claim is
appropriate under Rule 12(b)(6).
Moreover, of course, Chase’s reason for choosing not to hire Mr.
Washington—his disqualification under Section 19—would be a legitimate
business necessity, shielding Chase from liability. See 42 U.S.C. § 2000e2(k)(1). Likewise, even if Mr. Washington could establish that Chase’s action
raised the inference of discrimination, Chase would have the opportunity to
rebut that inference by offering a legitimate, nondiscriminatory reason for its
refusal to hire him. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147
(2000); Gordon v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001). And
Chase’s reason, in this instance, is extremely strong: if it had hired him, it
would be subject to the hefty penalties imposed by Section 19, because Mr.
Washington had not received a waiver from the FDIC. Mr. Washington never
requested that waiver from the FDIC, himself, nor did he request that Chase
seek that waiver on his behalf. Furthermore, Chase had no obligation to file
an application on his behalf under Section 19.3
For all of these reasons, the Court is obliged to conclude that Mr.
Washington has failed to state facts that could plausibly establish Chase’s
liability under Title VII. The Court, therefore, must dismiss this count under
Rule 12(b)(6).

3

The Court also points out that Section 19 does not contain any private cause
of action, so, to the extent that Mr. Washington wishes to assert a claim under that
Section, his claim would necessarily fail. Gress v. PNC Bank, 100 F. Supp. 2d 289
(E.D. Pa. 2000).

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1.2

WFEA Claim

Mr. Washington may also be attempting to state a claim under the
WFEA. The WFEA is a Wisconsin law that prohibits discrimination on the
basis of a conviction record. Wis. Stat. § 111.31, et seq. Thus, hypothetically,
he may have a WFEA claim.
However, the WFEA’s only path for relief is through an administrative
process in Wisconsin’s Department of Workforce Development; judicial
review thereafter occurs under Wisconsin’s Administrative Procedure Act.
Wis. Stat. §§ 111.39, 111.395. There is no separate cause of action in the
federal courts. Reed v. Johnson Controls, Inc., 704 F. Supp. 170, 171 (E.D. Wis.
1989); Mursch v. Van Dorn Co., 627 F. Supp. 1310, 1315 (W.D. Wis. 1986), aff’d
851 F.2d 990 (7th Cir. 1988).
Thus, the Court would not have jurisdiction to hear a WFEA claim,
and, to the extent that Mr. Washington alleges such a claim, the Court would
be obliged to dismiss that claim without prejudice under Rule 12(b)(1).
1.3

§ 1983 Claim

Finally, the Court notes that Mr. Washington may be attempting to
allege a claim under § 1983 that Chase violated his civil rights under color of
law. His complaint references deprivation of his due process rights, among
other things, for instance. (Docket #1, at 3–4).
The merits of this claim are doubtful to begin with, seeing as Mr.
Washington has not alleged any facts that would support that Chase acted
under color of law. Thus, dismissal of the claim under Rule 12(b)(6) is
appropriate.
Moreover, Mr. Washington seemingly disclaimed this potential claim
by mentioning that such a claim “is not in the best interests of law and justice

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based upon the facts in this controversy.” (Docket #6). Chase pointed this
disclaimer out, but Mr. Washington never responded, thus waiving the
claim.
For these reasons, to the extent that Mr. Washington asserted a § 1983
claim, the Court is obliged to dismiss the claim under Rule 12(b)(6).
2.

CLAIMS AGAINST THE FDIC
Any claim Mr. Washington might have against the FDIC also must be

dismissed under Rule 12(b)(1) for lack of jurisdiction, because Mr.
Washington lacks standing to proceed against the FDIC.
Standing requires:
(1)

an injury in fact, “which is an invasion of a legally protected
interest that is ‘(a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical,’”;

(2)

a causal connection between the challenged conduct and the
alleged injury; and

(3)

a likelihood that a favorable decision by the Court will redress
the injury.

E.g. Parvati Corp. v. City of Oak Forest, Ill., 630 F.3d 512, 516 (7th Cir. 2010)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)); Allen v.
Wright, 468 U.S. 737, 751 (1984). The standing requirement limits the
jurisdiction of the Court to addressing claims that present an actual case or
controversy.
As mentioned above, Mr. Washington withdrew his Section 19
application before the FDIC had reached a final decision on it. Thus, the FDIC
has not caused him any injury in fact. Had he waited to withdraw his
application, the FDIC could have taken some action that would allegedly
have harmed him, but he chose not to do so. Thus, there simply is no injury
that the FDIC caused to Mr. Washington, and he cannot satisfy even the first
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prong of the standing inquiry regardless of what potential claim he may have
against the FDIC.
Moreover, because the FDIC never took any final, formal action on
Mr. Washington’s Section 19 application, the Administrative Procedure Act,
5 U.S.C. § 704, limits the Court’s jurisdiction to review the FDIC’s actions.
Boutte v. Duncan, 348 Fed. App’x 151, 154 (7th Cir. 2009); Bethlehem Steel Corp.
v. Environmental Protection Agency, 536 F.2d 156, 161 (7th Cir. 1976).
For all of these reasons, the Court lacks jurisdiction over Mr.
Washington’s claims against the FDIC and, accordingly, must dismiss them
without prejudice under Rule 12(b)(1).
3.

CONCLUSION
As discussed in further detail above, the Court is obliged to grant the

defendants’ motions to dismiss, and will dismiss this action. Finally, because
it dismisses this case, the Court must also deny Mr. Washington’s motion for
injunctive relief and a pretrial conference (Docket #21) as being moot.
Accordingly,
IT IS ORDERED that Chase’s motion to dismiss (Docket #27) be and
the same is hereby GRANTED and Mr. Washington’s Title VII and § 1983
claims be and the same are hereby DISMISSED with prejudice, pursuant to
Rule 12(b)(6), and Mr. Washington’s WFEA claim be and the same is hereby
DISMISSED without prejudice, pursuant to Rule 12(b)(1);
IT IS FURTHER ORDERED that the FDIC’s motion to dismiss
(Docket #23) be and the same is hereby GRANTED and Mr. Washington’s
claims against the FDIC be and the same are hereby DISMISSED without
prejudice, pursuant to Rule 12(b)(1); and

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IT IS FURTHER ORDERED that Mr. Washington’s motion for
injunctive relief and a pretrial conference (Docket #21) be and the same is
hereby DENIED as moot.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 18th day of November, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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