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Washington v. First Transit, Inc.

United States District Court, D. Maryland, Southern Division

August 1, 2018

FIRST TRANSIT, INC., [1] et al, Defendants.



         In this suit, Plaintiff Milford Thomas Washington, Jr. has sued Defendants First Transit, Inc. (“First Transit”), and David Arey, First Transit's Human Resources director, for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. A number of motions are now pending before the Court, including Defendants' Motion to Dismiss, ECF No. 9, and Washington's Motion to Amend, ECF No. 17. No. hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Washington's Motion to Amend, ECF No. 17, is denied and Defendants' Motion to Dismiss, ECF No. 9, is granted.

         I. BACKGROUND[2]

         Plaintiff Milford Washington identifies himself as an “African American male, [who] was an incarcerated person from 2004[] through 2015.” ECF No. 1-2 ¶ 7. On August 8, 2017, Washington applied to work as a driver for Defendant First Transit. Id. After interviewing for the job, Washington was given a “Conditional Offer of Employment” which was “contingent upon completing and passing a pre-employment background check.” Id. On August 28, Washington attended a job training in Gaithersburg, Maryland. Id. ¶ 9. Two hours into the training, the instructor took a roll call of the attendees; Washington's name was not on the list of registered attendees. Id. The training instructor reported this to Human Resources, and Washington was given a letter, signed by Defendant David Arey on August 21, 2017, informing him that “a background check was conducted and potentially adverse information was obtain[ed]. You are now considered ineligible for employment based on this information.” Id. The background check for Washington revealed convictions for Carrying a Dangerous Weapon, ECF No. 1-5 at 4, [3] Shoplifting, id. at 5, Forgery of checks, id. at 9-13, Possession False ID, id. at 13-15, along with a number of charges which had not been fully prosecuted.

         Washington appealed First Transit's rescission of his employment offer, and filed a claim with the Equal Employment Opportunity Commission (“EEOC”).[4] On his Intake Questionnaire, Washington identified his national origin as being “Melaninite Nubian” and his race as “Black or African American.” ECF No. 1-7 at 4. In response to the majority of the questions on the Intake Questionnaire, Washington directed the EEOC to his “Supplement-Complaint.” Id. at 8. In his Supplement, Washington stated, inter alia, that:

The majority of First Americas [sic] applicant and employees in the Washington D.C. Metropolitan area are African American and other minorities. I am an African American Male who has recently been released from incarceration after ten years. Statistics and studies have shown that African American males are going to be negatively affected by neutral policies and practices. The neutral employment practice and policy utilized by First America had and has a disproportionate negative effect upon me.
First America has a neutral policy that resulted in excluding me from employment based upon my past criminal conduct and because I am an American African of slave descent . . . .

Id. at 8. Washington further stated that First Transit had not developed an “Individualized Assessment” of his case. Id. at 9. Based on this Intake Questionnaire, a charging document was prepared which Washington signed on September 22. In the section of the EEOC charging document titled “Discrimination Based On, ” only the boxes for “Race” and “Sex” are checked, and the box for “National Origin” is blank. Id. at 3. The summary box states, in part:

On August 28, 2017, I learned that I was not hired due to my past criminal conduct. I am aware the majority of the employer's applicants and employees in the Washington D.C. Metropolitan area are African American and other minorities and females. I believe I was discriminated against because of my race (African American) and sex (Male) . . . .

Id. On September 26, 2017, the EEOC issued a dismissal and notice of right to sue. Id. at 1-2.

         On December 19, 2017, Washington, proceeding pro se, initiated this suit by filing a Complaint. ECF No. 1-2. Washington stated eleven claims under Title VII for “Permanent Exclusion, ” “Disparate Impact, ” and “Disparate Impact Liability.” Id. at 5-10. Each claim states essentially the same allegation, although the various claims make varying references to Washington's different past criminal convictions or charges. These claims allege that “in violation of Title VII's National Origins mandates” First Transit's “neutral employment policy” had a “disparate impact” upon Washington by stating “that criminal felony and or misdemeanors in Washington, D.C. did not meet company standards.” Id.

         On February 27, 2018, Defendants filed the now-pending Motion to Dismiss, arguing that Washington did not raise a claim regarding his national origin with the EEOC, and thus he did not exhaust his administrative remedies; even if he had exhausted his administrative remedies, Defendants argue, his Complaint nonetheless fails to plausibly state a claim. ECF No. 9-1.

         At some point, Washington became aware that a class action alleging similar facts to his Complaint had been brought against the Washington Metropolitan Transit Authority (“WMATA”) and its contractors (of which First Transit is one) in the United States District Court for the District of Columbia. On March 19, 2018, Washington filed a Motion to Stay and Hold Case in Abeyance while he attempted to join the class action.[5] ECF No. 13. On April 23, 2018, Washington submitted a Motion for Leave to Amend, ECF No. 17, along with a proposed Amended Complaint, ECF No. 17-1. The proposed Amended Complaint adds some additional factual context regarding First Transit's relationship with WMATA, and replaces references to Title VII's “national origins” clause with the “disparate impact clause.” See, e.g., ECF No. 17-1 ¶¶ 14, 15, 17, 21. Defendants oppose Washington's Amended Complaint, arguing that it fails to comply with this Court's Local Rules and is futile. ECF No. 20. Finally, on May 16, 2018, Washington forwarded to the Court a letter that he had received from the EEOC. ECF No. 22. In this correspondence, on April 17, 2018, Washington explained to the EEOC that the EEOC had erroneously failed to check the “National Origin” box on his EEOC charging document. Id. at 3. On May 8, 2018, the EEOC acting director responded that “there is no basis for changing the determination of September 26, 2017.” Id. at 2. Defendants filed a Motion to Strike this correspondence, ECF No. 23, arguing that it is an impertinent document, ECF No. 23-1 at 3. All motions have been fully briefed.[6]

         II. ...

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