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Smith v. Home Health Solutions, Inc.

United States District Court, D. Massachusetts

October 24, 2018

BRITTNEE SMITH, Plaintiff,
v.
HOME HEALTH SOLUTIONS, INC., Defendant.

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS (Dkt. No. 7)

          MARK G. MASTROIANNI UNITED STATES DISTRICT JUDGE

         I. Introduction

         Plaintiff Brittnee Smith is an African American female who applied for a caregiver job with Defendant Home Health Solutions, Inc. but was not hired. Plaintiff alleges Defendant did not hire her after it ran a criminal background check, and the Criminal Offender Record Information (“CORI”) showed she was arrested in 2007. The arrest did not lead to a conviction. Plaintiff brought this race-based employment discrimination action, alleging Defendant's employment practices have a disparate impact on African Americans in violation of Title VII of the Civil Rights Act of 1964 and Massachusetts law. Defendant moved to dismiss, primarily arguing Plaintiff did not identify an employment practice or policy applicable to her, and Massachusetts law requires Defendant to run a CORI for all caregiving job candidates. Plaintiff opposed the motion to dismiss but voluntarily dismissed Count III pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i). (See Dkt. No. 12.) Now there are two pending claims against Defendant for race-based discrimination in violation of both 41 U.S.C. § 2000e-2(k) (Count I) and G.L. c. 151B, § 4(1) (Count II). Plaintiff has sufficiently-but barely- alleged a plausible disparate impact claim. As a result, Defendant's motion to dismiss will be denied.

         II. Background

         Plaintiff alleges she is a black female who submitted a written application for a job as a caregiver with Defendant. See Compl. ¶¶ 6, 23. When she completed the application, she authorized Defendant to obtain a CORI report, which would show her criminal offender record information maintained by the Massachusetts court system. Id. at ¶¶ 24-25. The CORI report showed Plaintiff was arrested in 2007, and the arrest did not lead to a conviction. Id. at ¶ 29. Plaintiff subsequently interviewed for the position in-person with Linda Unwin, Defendant's human resources representative. Id. at ¶ 27. During the interview, Ms. Unwin said, “the Defendant had a policy that they could not hire anyone who was convicted of a crime in the last ten years.” Id. at ¶ 32. Plaintiff explained she had been arrested but not convicted, and Ms. Unwin replied that Defendant still would not hire her “as she had something on her record that was within the ten-year timeframe.” Id. at ¶¶ 33-34; see also id. at ¶ 36 (“ . . . Ms. Unwin told [Plaintiff] that the Defendant would not hire her because of the 2007 arrest that did not result in any conviction.”). Then Ms. Unwin stated Defendant might have “hired [Plaintiff] if she had applied for the same job after the ten-year period had lapsed.” Id. at ¶ 35. After the interview, Defendant sent Plaintiff a letter informing her it could not offer her a position as a caregiver at that time. Id. at ¶ 39.

         III. Motion to Dismiss Standard

          For the purpose of assessing a motion to dismiss, the court accepts the allegations in the complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). “Unlike factual allegations, legal conclusions contained within a complaint are not entitled to a presumption of truth.” Ocasio-Hernández v. Fortuño Burset, 640 F.3d 1, 10 (1st Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Focusing on the factual allegations, the complaint must contain “a short and plain statement of the claim, ” Fed.R.Civ.P. 8(a)(2), that “possess[es] enough heft to show that the pleader is entitled to relief, ” Twombly, 550 U.S. at 557 (internal quotation marks omitted). To survive a Rule 12(b)(6) challenge, the allegations “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted).

         IV. Disparate Impact Claims

         Under Title VII, disparate impact claims “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). “[D]iscriminatory motive . . . is not required.” Id. (citations omitted). At the pleading stage, Plaintiff must “1) identify the challenged practice or policy and defendant's use of it; 2) demonstrate a disparate impact on a group that falls within the protection of the statute; and 3) show a causal relationship between the identified practice and the disparate impact.” Alleyne v. Flagstar Bank, FSP, No. 07-12128-RWZ, 2008 WL 8901271, at *4 (D. Mass. Sept. 12, 2008) (citing E.E.O.C. v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 601 (1st Cir. 1995)).[1]

         Massachusetts law also recognizes disparate impact claims. See Sch. Comm. of Braintree v. Mass. Comm'n Against Discrimination, 377 Mass. 424, 428 (1979) (“[Disparate impact] cases involve employment practices that are facially neutral in their treatment of different groups, but that in fact fall more harshly on one group than another.”). But “[b]ecause there is relatively little case law on disparate impact claims in Massachusetts, ” Massachusetts courts “look to Title VII for guidance.” Lopez v. Commonwealth, 463 Mass. 696, 709 n.17 (2012). “[U]nlike disparate treatment claims, discriminatory motive is not a required element of proof in disparate impact cases.” Id. at 709 (internal quotation marks and citations omitted). “This is because ‘the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.'” Id. at 710 (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987-88 (1988)).

         V. Analysis

         As a preliminary matter, the court notes Defendant attached six exhibits to its motion. Plaintiff argues the exhibits are outside of the pleadings and should be excluded, or, in the alternative, the court should treat the motion as one for summary judgment, in which case Plaintiff would need time for discovery. The court has reviewed the exhibits. They are, for the most part, outside the pleadings, and the court is not considering them. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”); Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (“Ordinarily, of course, any consideration of documents not attached to the complaint, or not expressly incorporated therein, is forbidden, unless the proceeding is properly converted into one for summary judgment under Rule 56.”).

         Turning to the allegations, the complaint gets past Rule 8(a)'s pleading requirements for a disparate impact claim. First, Plaintiff alleged Defendant has several facially neutral hiring ...


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