Harrison v. Wells Fargo Bank, N.A., Civil Action No. 3:19cv799

• Decision Date: 09 March 2021
• Docket Number: Civil Action No. 3:19cv799
• Court: U.S. District Court — Eastern District of Virginia
• Parties: GEORGE O. HARRISON, JR., Plaintiff, v. WELLS FARGO BANK, N.A., Defendant.

GEORGE O. HARRISON, JR., Plaintiff, v. WELLS FARGO BANK, N.A., Defendant.

Civil Action No. 3:19cv799

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

March 9, 2021

MEMORANDUM OPINION

This matter comes before the Court on Defendant Wells Fargo Bank's ("Wells Fargo") Motion for Judgment on the Pleadings or, in the alternative, Motion for Summary Judgment (the "Motion for Judgment"). (ECF No. 18.) Pro se Plaintiff George O. Harrison, Jr. responded, (ECF No. 20), and Wells Fargo replied. (ECF No. 21.) Harrison also filed a Motion to Strike (the "Motion to Strike"), (ECF No. 24), to which Wells Fargo responded, (ECF No. 25) Accordingly, this matter is ripe for disposition.

The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.¹ For the reasons that follow, the Court will grant in part and deny in part the Motion for Judgment and deny the Motion to Strike.

I. Factual and Procedural Background

Harrison brings this Complaint pursuant to Title VII, the ADEA, and the ADA, alleging that Wells Fargo discriminated against him due to his race, age, and disability when it rescinded an offer of employment.

A. Factual Allegations

Harrison is a sixty-six-year-old "African American" male with a "visual impairment." (Compl. ¶¶ 3,7, ECF No. 1.) Harrison states that his visual impairment constitutes a "recognized disability under the definition of that term in 29 C.F.R. ¶ 1630.2(g)." (Id. ¶ 3.)

On or about March 25, 2019, Harrison applied for a phone banker position with Wells Fargo that he "was fully qualified for . . . in background and training," (id. ¶ 7), and Wells Fargo extended Harrison an "offer of employment," (id. ¶¶ 9-10). However, at some point after extending Harrison an offer of employment, Wells Fargo made the "decision not to employ [him]." (Id. ¶ 8.) Harrison states that Wells Fargo made the decision not to hire him "because of . . . discrimination of Wells Fargo on the basis of disability, race and age." (Id. ¶ 5.)

Harrison avers, upon information and belief, that Wells Fargo received a "consumer background report" that "provides information [about Harrison] that predates the offer of employment by more than [ten] years and reveals nothing job-related or consistent with business necessity." (Id. ¶ 9.) Harrison states that "[a]t no time prior to making its decision did Wells Fargo communicate with [him] concerning the consumer background report." (Id. ¶ 10.)

Finally, Harrison states that "[a] copy of the Right to Sue letter received by Harrison dated August 5, 2019 is attached." (Id. ¶ 13.) However, no Right to Sue letter, or any other document from the EEOC, is attached to the Complaint.

B. Procedural Background

On October 28, 2019, Harrison, appearing pro se, filed his Complaint against Wells Fargo.² (Compl., ECF No. 1.) On December 23, 2019, Wells Fargo filed its Answer, admitting that Harrison applied for employment with Wells Fargo, denying the asserted claims, and asserting seven affirmative defenses. (Answer, ECF No. 5.) Shortly thereafter, Harrison filed a Motion to Compel Discovery, (ECF No. 11), which this Court denied without prejudice stating that the "Court and the Parties will have the opportunity to discuss scheduling and discovery deadlines for this matter at the Initial Pretrial Conference" then scheduled for June 25, 2020. (Apr. 28, 2020 Order, ECF No. 17.) On May 22, 2020, despite the upcoming Initial Pretrial Conference, Wells Fargo filed the instant Motion for Judgment. (ECF No. 18.) Harrison responded, and Wells Fargo replied. Due to the pending Motion for Judgment, the Court cancelled the Initial Pretrial Conference. (ECF No. 23.)

Reading Harrison's Complaint broadly, he brings nine causes of action against Wells Fargo, alleging that:

Count I: Wells Fargo violated the ADA by failing to hire Harrison on the basis of his disability;

Count II: Wells Fargo violated the ADEA by failing to hire Harrison on the basis of his age;

Count III: Wells Fargo violated Title VII by failing to hire Harrison on the basis of his race (collectively with Counts I and II, the "Failure to Hire Claims");

Count IV: Wells Fargo violated the ADA by engaging in unlawful employment practices that have a disparate impact on individuals with disabilities;

Count V: Wells Fargo violated the ADEA by engaging in unlawful employment practices that have a disparate impact on individuals over the age of forty; Count VI: Wells Fargo violated Title VII by engaging in unlawful employment practices that have a disparate impact on individuals on the basis of race (collectively with Counts IV and V, the "Disparate Impact Claims");

Count VII: Wells Fargo violated 42 U.S.C § 1983 through the ADA, ADEA, and Title VII;

Count VIII: Wells Fargo violated the FLSA by failing to provide Harrison with unpaid minimum wage and overtime compensation and by retaliation; and,

Count IX: Wells Fargo retaliated against Harrison for invoking his ADA rights.

As relief, Harrison seeks an injunction against Wells Fargo from discriminating on the basis of disability, race, and age when making hiring and other employment decisions; a declaratory judgment that Wells Fargo violated Harrison's rights under the ADA, ADEA, and Title VII; $500,000.00 in compensatory damages; $150,000.00 in punitive damages, and attorney's fees and costs. (Compl. 4.)

In the Memorandum in Support of the Motion for Judgment, Wells Fargo argues that Harrison was precluded from employment at Wells Fargo by 12 U.S.C. § 1829(a)(1), more commonly known as "Section 19," which bars from employment any person who has been convicted of any criminal offense involving dishonesty, breach of trust, or money laundering, absent the Federal Deposit Insurance Corporation's (FDIC) prior written consent. (Mem. Supp. Mot. J. 5-6, ECF No. 19.) Because Harrison's background check revealed that he had multiple convictions for dishonesty and breach of trust, Wells Fargo contends that Harrison cannot state a cognizable failure to hire claim. (Id.) Wells Fargo also challenges the sufficiency of Harrison's other claims. (Id.)

In the Motion to Strike, Harrison claims that he filed his Response to the Motion for Judgment on June 3, 2020, although the Clerk's Office entered the response on the docket on June 4, 2020. (Mot. Strike 1, ECF No. 24.) On June 10, 2020, Wells Fargo submitted its Reply brief in support of the Motion for Judgment. (Reply, ECF No. 21.) Harrison argues that Wells Fargo's Reply brief is untimely as it was submitted the seventh day after June 3, 2020, and not the sixth, as required by the Local Rules for the Eastern District of Virginia. (Mot. Strike 1.)

II. Standards of Review

A. Motion for Judgment on the Pleadings: Rule 12(c)

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings "[a]fter the pleadings are closed—but early enough not to delay trial." Fed. R. Civ. P. 12(c). "A motion for judgment on the pleadings under Rule 12(c) is assessed under the same standards as a motion to dismiss under Rule 12(b)(6)." Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). "A Rule 12(c) motion for judgment on the pleadings therefore is also analyzed for compliance with the Supreme Court's holdings in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)." Trs. of Columbia Univ. in City of New York v. Symantec Corp., 425 F. Supp. 3d 601, 607 (E.D. Va. 2019) (citations omitted).

"It is axiomatic . . . that for purposes of the court's consideration of the Rule 12(c) motion, all of the well pleaded factual allegations in the adversary's pleadings are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false." 5C ARTHUR R. MILLER, ET AL., FEDERAL PRACTICE AND PROCEDURE § 1368 (3d ed. 2019) (citing cases). Similar to a Rule 12(b)(6) motion, the Court must view all "the inferences to be drawn [from the facts] in the light most favorable to the nonmoving party." Id. "To survive a motion for judgment on the pleadings, a pleading need only provide a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what . . . the claim is and the grounds upon which it rests." United States v. Sum of Three Hundred Nine Million Five Hundred Thousand Dollars, 85 F. Supp. 3d 111, 115 (D.D.C. 2015) (citing Twombly, 550 U.S. at 555) (internal quotation marks omitted).

B. Pro Se Pleadings

Because Harrison proceeds pro se, the Court liberally construes his filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal quotation marks and citations omitted). Nonetheless, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts that set forth a claim cognizable in a federal district court. See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Fed. R. Civ. P. 8 for "all civil actions"). A pro se plaintiff must nevertheless allege facts sufficient to state a cause of action. Bracey v. Buchanan, 55 F. Supp. 2d 416, 421 (E.D. Va. 1999) (citation omitted). The Court cannot act as a pro se litigant's "advocate and develop, sua sponte, statutory and constitutional claims that the [litigant] failed to clearly raise on the face of [the] complaint." Newkirk v. Cir. Ct. of Hampton, No. 3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014) (internal quotation marks and citations omitted).

III. Analysis

Wells Fargo brings the instant Motion for Judgment, which this Court...