Aziyz v. CAMECA, a Wis. Profit Corp.

• Docket Number: 1:22-cv-579
• Decision Date: 18 September 2023
• Parties: NAJIY-ULLAH AZIYZ, Plaintiff, v. CAMECA, a Wisconsin Profit Corporation; AMETEK, a Pennsylvania Profit Corporation; STEVEN TURNBULL, individually and in his capacity as a manager; ANNIE STROUD, individually and in her capacity as a manager; and FABRICE LEDUIGOU, individually and in his capacity as a manager, Defendants.
• Court: U.S. District Court — Northern District of New York

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NAJIY-ULLAH AZIYZ, Plaintiff, v. CAMECA, a Wisconsin Profit Corporation; AMETEK, a Pennsylvania Profit Corporation; STEVEN TURNBULL, individually and in his capacity as a manager; ANNIE STROUD, individually and in her capacity as a manager; and FABRICE LEDUIGOU, individually and in his capacity as a manager, Defendants.

No. 1:22-cv-579

United States District Court, N.D. New York

September 18, 2023

DECISION & ORDER

THOMAS J. MCAVOY, SENIOR UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Najiy-Ullah Aziyz, proceeding pro se, brings this diversity action against Defendants Cameca Inc. (“Camaca”), Ametek Inc. (“Ametek”) Steven Turnbull (“Turnbull”), Annie Stroud (“Stroud”), and Fabrice LeDuigou (“LeDuigou”)(collectively “Defendants”). See generally First Am Compl. (“FAC”), Dkt. No. 29-1. Plaintiff's claims arise because Cameca offered, and Plaintiff accepted, the Northeast Field Service Engineer (“NFSE”) position to be performed remotely from Plaintiff's home in New York State; Camaca rescinded that offer after it learned of Plaintiff's 1991 felony conviction; and then, the next day, reinstated the offer and set August 10, 2020 as Plaintiff's start and orientation date. See id. Plaintiff contends that because Cameca failed to provide him by August 10 with the necessary apparatuses (company car, computer, phone, and email) to participate in the orientation and perform his duties, Defendants “reneged on plaintiff's reinstatement job [sic] offer and orientation solely due to Plaintiff's 1991 felony conviction,” effectively denying him employment. Id. at ¶¶ 52, 53.

Plaintiff brings claims that he labels as: (1) “Violation of New York Human Rights Law (N.Y. Exec. Law § 292 et seq.)” (Count I); (2) “Defendants' Breach of Contract” (Count II); (3) “Breach of Promissory Estoppel” (Count III), (4) “Breach of Contract (Confidentiality of Hiring Data)” (Count IV); (5) “Breach of Good Faith and Fair Dealings” (Count V); (6) “Fraud, Deceit, and Negligent Misrepresentation” (Count VI); and (7) “Promissory Fraud Misrepresentation” (Count VII). See FAC. Each claim is brought against all Defendants. Id.

Defendants move to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(2) on the grounds that the Court lacks personal jurisdiction over each defendant, and pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that the FAC fails to state claims upon which relief may be granted. See Dkt. No. 31. Plaintiff opposes the motion, see Dkt. No. 33, and Defendants file a Reply. See Dkt. No. 34. For the reasons that follow, Defendants' motion is granted in part and denied in part.

II. BACKGROUND

a. Prior Litigation

This is Plaintiff's second pro se action filed in federal court concerning the Camaca NFSE position. In the first action, brought in the United States District Court for the Western District of Wisconsin against all defendants named here except Ametek (Cameca's parent company), Plaintiff claimed that Cameca violated federal antidiscrimination laws,^[1] the Fair Credit Reporting Act, 15 U.S.C. § 1681b(b)(3)(A) (“FCRA”), and Wisconsin state common law by failing to make him a “good faith” offer of employment after discovering that he had a felony conviction. See Aziyz v. Cameca, No. 20-CV-896-WMC, 2021 WL 3471583, at *1 (W.D. Wis. Aug. 6, 2021), aff'd sub nom. Aziyz v. Cameca, Inc., No. 21-2550, 2022 WL 354444 (7th Cir. Feb. 7, 2022), reh'g denied, No. 21-2550, 2022 WL 727638 (7th Cir. Mar. 10, 2022).

There, as in the instant case, on July 20, 2020 Camaca offered Plaintiff the NFSE position. See id. at *1. Plaintiff accepted the position the same day by sending a signed copy of the offer letter to Stroud, Cameca's Human Resource Manager. Id. The parties agreed that Plaintiff's first day at Cameca would be Monday, August 10, 2020, and on July 27, Cameca Service Manager LeDuigou emailed Plaintiff, stating that he was looking forward to him joining the team and informing him that Cameca would be providing him with a cellphone. Id.

“Cameca has a policy of considering applicants with a criminal history for employment. It also has a policy of conducting a ‘7-10 years background check' of its applicants. As part of its hiring process, Cameca hired a third-party vendor, HireRight, to conduct a background check” on Plaintiff. Id. “HireRight finalized its report on July 28, 2020. That same day, defendant Stroud sent [Plaintiff] a ‘welcome aboard' email.” Id. “On or about August 6, 2020, however, Stroud called [Plaintiff] and told him that, in performing her own background investigation, she discovered that [Plaintiff] had a felony conviction. Stroud told [Plaintiff] that she had shared this information with LeDuigou, who became ‘upset' that [Plaintiff] had not disclosed this information during the interview process. Stroud told [Plaintiff] that she would have to report the conviction to Cameca's corporate office and rescind the job offer.” Id. at *2. Nevertheless, on August 7, 2020, Stroud called Plaintiff and told him that: “(1) she was wrong for sharing the information about his conviction with LeDuigou; and (2) Cameca actually wished to proceed with [Plaintiff's] orientation on August 10. Stroud also attempted to set up a conference call with LeDuigou and [Plaintiff] to talk, but the parties were unable to find a time that worked.” Id. That same day, Turnbull, Cameca's Vice President of Human Resources, “also called [Plaintiff], apologized for how things had been handled, and explained how the company had discovered [Plaintiff's] felony conviction. According to Turnbull, after receiving HireRight's background check, Stroud noticed that [Plaintiff's] age and graduation date did not coincide with his work history, so she followed up with LeDuigou to see what he had learned during [Plaintiff's] interview.” Id. “Turnbull told [Plaintiff] that it was LeDuigou (not Stroud) who then conducted the internet search that led to the discovery of the conviction. Turnbull further admitted during this conversation that Stroud, LeDuigou, and he ‘acted discriminatory towards Plaintiff based on race and age.'” Id. (quoting Am. Compl. ¶ 98)). “Finally, later that same day, Turnbull emailed [Plaintiff] and said he was looking forward to him starting with Cameca.” Id.

“The next day, August 8, [Plaintiff] emailed Turnbull and asked (1) how he could ‘ensure that I will not be targeted by [LeDuigou]' and (2) whether there were any other managers or departments for whom he could work.” Id. “Turnbull responded the following day, assuring [Plaintiff] that Cameca maintained a fair working environment and LeDuigou had been reminded of and confirmed that he would comply with Cameca's anti-discrimination policies. Turnbull also emphasized that Cameca's ‘good faith and commitment to the Code of Ethics [contained in the employee handbook] is evidenced by our decision to move forward to hire you after being informed of your past criminal convictions.'” Id. (quoting Am. Compl, ¶104).

“On August 10, [Plaintiff's] planned start date, Turnbull again emailed him to ask whether he had received the previous email and intended to report to work that day.” Id. “[Plaintiff] responded that he did not intend to join Cameca because it had not assured him that he would not be a target of retaliation or that the job offer was in good faith. Cameca then allegedly filled the Field Service Engineer job with someone who was ‘sufficiently younger' than [Plaintiff].” Id.

Defendants moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6), contending primarily that none of Plaintiff's federal claims were actionable because, as Plaintiff admitted in his amended complaint, Cameca offered him a job and he rejected it. Id. The District Court agreed, holding: “Because the admissions in the amended complaint disprove plaintiff's allegations of unlawful discrimination or violation of his rights under the FCRA, the court will dismiss his federal claims under Rule 12(b)(6) and decline to exercise supplemental jurisdiction over the remaining state law claims, which will be dismissed without prejudice for lack of jurisdiction.” Id.; see id., at *4-6.

On appeal, the United States Court of Appeals for the Seventh Circuit affirmed the District Court's decision, finding that “[e]ven taking Aziyz's factual allegations at face value, he has failed to allege that Cameca took any adverse employment action against him.” Aziyz, 2022 WL 354444, at *1. “Aziyz's discrimination claims fail because his allegations show that he did not suffer an adverse employment action, which is an essential element of his race- and age-discrimination claims.” Id., at *2. The Seventh Circuit found that even though Plaintiff insisted that Cameca had no intention of following through on its job offer after discovering his criminal conviction, “speculative future adverse action is not adverse action.” Id. (citations omitted). “Aziyz's own allegations show that he did not confirm his willingness to start work but instead rejected Cameca's job offer on the morning his orientation was to begin.” Id. The Seventh Circuit held that “Aziyz's rejection of the job offer also defeats any argument that Cameca's failure to send the laptop and phone showed that it did not intend to follow through on the job offer. Moreover, in his email rejecting the job offer, Aziyz did not identify the lack of a laptop computer or phone as a basis for his refusal to start work, nor did he allege that he ever told Cameca during the numerous conversations leading up to his orientation that he had not received them.” Id.

Likewise the Seventh Circuit found that “the district court correctly reasoned that the temporary rescission of the offer does not satisfy the [Fair Credit Reporting Act's] definition of ‘adverse action,' which requires ‘a denial of...