Massenburg v. Innovative Talent Solutions, Inc., No. 5:16-CV-957-D

CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
Writing for the CourtJAMES C. DEVER III United States District Judge
Docket NumberNo. 5:16-CV-957-D
Decision Date04 February 2019


No. 5:16-CV-957-D


February 4, 2019


On February 2, 2017, Nancy Massenburg ("Massenburg" or "plaintiff"), proceeding pro se and in forma pauperis, filed a complaint against Ashley Hunt, d/b/a Innovative Talent Solutions, Inc. ("ITS") and an unnamed client of ITS for whom a discriminatory hiring policy was enforced ("Unnamed Client"), seeking relief under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. [D.E. 7]. On May 3, 2017, Massenburg filed a first amended complaint against Ashley Hunt ("Hunt"), Kimberly Korando ("Korando"), and the Unnamed Client [D.E. 33].1 On May 30, 2018, while her motion for leave to file a second amended complaint was pending [D.E. 97], Massenburg filed a second amended complaint that replaced the Unnamed Client with Lee Air Conditioners, Inc. ("Lee Air"; with ITS, "defendants") as a defendant and alleged new claims against ITS [D.E. 128].

On April 20, 2018, ITS moved for summary judgment [D.E. 112], filed a statement of material facts [D.E. 113], and filed a memorandum in support [D.E. 115]. On May 14, 2018,

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Massenburg responded in opposition [D.E. 122], filed an opposing statement of material facts [D.E. 123], and filed other supporting documents [D.E. 124]. On June 14, 2018, ITS moved to strike Massenburg's second amended complaint [D.E. 134], and ITS filed a memorandum in support [D.E. 135]. On June 19, 2018, Massenburg responded in opposition [D.E. 137]. On July 3, 2018, ITS replied [D.E. 145]. On July 27, 2018, Lee Air moved to dismiss Massenburg's second amended complaint for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted [D.E. 154]. On August 20, 2018, Massenburg responded in opposition [D.E. 161]. On September 4, 2018, Lee Air replied [D.E. 165]. Finally, on April 18, 2018, Massenburg moved to extend the deadline for dispositive motions established in this court's scheduling order of November 6, 2017 [D.E. 110]. On May 8, 2018, ITS responded in opposition [D.E. 121].

As explained below, the court grants ITS's motion for summary judgment, grants ITS's motion to strike, and grants Lee Air's motion to dismiss. The court denies Massenburg's motion for leave to file a second amended complaint, denies Massenburg's motion to file a sur-reply, denies Massenburg's motion to amend the scheduling order, and dismisses as moot Massenburg's motion for a protective order and order to compel. Finally, the court strikes Massenburg's latest filing [D.E. 171] and dismisses as moot defendants' motion to strike.


ITS is an employment agency that Hunt owns and operates. See [D.E. 113] ¶ 1; Hunt Aff. [D.E. 114-3] ¶ 2. As part of an initial screening process for candidates, ITS requires applicants to complete an online application. See [D.E. 113] ¶¶ 2-3. ITS provides all candidates with a notification and release form that outlines ITS's policies on background checks. See id. ¶ 4. ITS does not conduct a background check on any candidate until a client extends a conditional job offer to that candidate and the candidate has accepted it. See id. ¶ 6; Hunt Aff. [D.E. 114-3] ¶ 4. No ITS-

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sponsored candidate has been disqualified from an accepted offer because of full disclosure of the candidate's criminal history. See [D.E. 113] ¶ 7; [D.E. 114-2] 3.

Lee Air contracted with ITS to obtain referrals for qualified candidates for employment with Lee Air. See [D.E. 113] ¶ 11; Hunt Aff. [D.E. 114-3] ¶ 3. In 2014, Lee Air requested candidates for a dispatcher position and asked that the candidate have at least one year of dispatcher experience, preferably in the HVAC industry. See [D.E. 113] ¶ 12; Hunt Aff. [D.E. 114-3] ¶ 5. ITS identified one highly qualified candidate, Angela V., who had two years of dispatcher experience in the HVAC industry. See [D.E. 113] ¶¶ 13-15. ITS identified two other qualified candidates who met Lee Air's requirements. See id. ¶ 16. One of these candidates, Natasha H., was an African-American woman. See id. ¶ 17; Hunt Aff. [D.E. 114-3] ¶ 7. At the time, ITS did not intend to refer any other candidates for the position to Lee Air. See [D.E. 113] ¶ 19. Ultimately, Lee Air hired Angela V. See id. ¶ 20.

On October 9, 2014, before Lee Air hired Angela V., an ITS recruiter named Katherine White ("White") contacted Massenburg after finding Massenburg's résumé online. See id. ¶ 21. Massenburg alleges that White told Massenburg that it was difficult to find a candidate with dispatcher experience. See id. ¶ 22; cf. [D.E. 123] ¶ 22. White encouraged Massenburg to apply for the Lee Air position and informed her that Lee Air would want to conduct a background check. See [D.E. 113] ¶¶ 23, 26. White stated that the background check would extend for seven years, and Massenburg indicated that the check would not raise any issues. See id. ¶ 24. White did not provide ITS or Hunt with Massenburg's résumé. See id. ¶ 27.

On October 10, 2014, Massenburg applied online to ITS. See id. ¶ 28. In her application, Massenburg admitted that she had been convicted of assault of a government official in 1997. See id. ¶¶ 29-30. Later that day, Hunt called Massenburg to tell her not to come in for the interview that White had scheduled because ITS had already identified all the candidates that ITS intended to refer

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to Lee Air. See id. ¶¶ 31-32. ITS claims that Hunt did so to save Massenburg time and effort. See id. Massenburg, however, claims that Hunt told her that Lee Air would not hire anyone with a conviction. See id. ¶ 33; [D.E. 123] ¶ 33; [D.E. 114-1] 47-48. Massenburg did not attend the interview that White scheduled. See [D.E. 114-2] 14.

Lee Air does not disqualify candidates with convictions, and Lee Air has hired at least one candidate with a criminal history. See [D.E. 113] ¶ 34; Hunt Aff. [D.E. 114-3] ¶ 14. According to ITS, Hunt believed that the other three candidates were more qualified than Massenburg for the Lee Air job. See [D.E. 113] ¶ 40; Hunt Aff. [D.E. 114-3] ¶ 11. Unlike Angela V., Massenburg lacked dispatcher experience in the HVAC industry and lacked recent dispatcher experience in any industry. See [D.E. 113] ¶ 40. Massenburg did not include her dispatcher experience with Cardinal Cab Company in her application, and she did not submit her résumé to ITS. See id. ¶¶ 36-39. Massenburg alleges that two candidates that ITS referred to Lee Air also lacked dispatcher experience in the HVAC industry. See [D.E. 123] ¶ 40. Massenburg believes that she has been turned down for many other jobs because of her criminal record, which also includes a conviction for common law robbery. See [D.E. 113] ¶¶ 41-42; [D.E. 123] ¶ 41.

ITS contends that it does not have a "total exclusionary requirement" for applicants with criminal histories and that it does not have any clients, including Lee Air, that would disqualify a candidate solely because of criminal history. [D.E. 113] ¶¶ 8-9 (alteration omitted). ITS also claims that its clients, including Lee Air, evaluate a candidate with a criminal history holistically. See [D.E. 113] ¶ 10. Massenburg responds that ITS's statements are "mere smoke and mirrors." [D.E. 123] ¶¶ 8, 10.


Summary judgment is appropriate when, after reviewing the record as a whole, the court

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determines that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking summary judgment must initially demonstrate the absence of a genuine issue of material fact or the absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, Anderson, 477 U.S. at 248-49, but "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court reviewing a motion for summary judgment should determine whether a genuine issue of material fact exists for trial. Anderson, 477 U.S. at 249. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

A genuine issue of material fact exists if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249. "The mere existence of a scintilla of evidence in support of plaintiff's position [is] insufficient . . . ." Id. at 252.; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) ("The nonmoving party, however, cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another."). Only factual disputes that affect the outcome under substantive law properly preclude summary judgment. See Anderson, 477 U.S. at 248.


In relevant part, Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to refuse to hire, or otherwise to discriminate against, any individual with respect to that individual's "compensation, terms, conditions, or privileges of employment, because of such individual's race."

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42 U.S.C. § 2000e-2(a)(1). An employer also cannot "limit, segregate, or classify his . . . applicants for employment in any way which would deprive [that individual] of employment opportunities . . . because of such individual's race." 42 U.S.C. § 2000e-2(a)(2).

A Title VII plaintiff can prove discrimination that violates 42 U.S.C. § 2000e-2(a) in two ways: disparate treatment and disparate impact. See EEOC v. Abercrombie...

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