United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION
TO DISMISS (Dkt. No. 7)
G. MASTROIANNI UNITED STATES DISTRICT JUDGE
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.
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.
Motion to Dismiss Standard
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).
Disparate Impact Claims
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)).
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,
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.”).
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