United States District Court, Eastern District of Missouri, Eastern Division
LAWRENCE G. GRAY, Jr., Plaintiff,
THE OUTSOURCE GROUP, Defendant.
MEMORANDUM AND ORDER
THOMAS C. MUMMERT, III, UNITED STATES MAGISTRATE JUDGE.
This employment discrimination case is before the Court on the cross-motions of Lawrence Gray (Plaintiff) and The Outsource Group (Defendant) for summary judgment.
Plaintiff began work for Defendant on November 19, 2007, pursuant to a conditional offer of employment. (Taylor-Hanneken Decl. ¶ 5, ECF No. 73-4.) Defendant "is a revenue cycle management company." ( Id. . ¶ 4.) "It assists hospitals, physicians, and dentists in the collection of traditional past due accounts from both patients and commercial payers." (Id.)
When applying for employment, Plaintiff signed a release authorizing the Griffin Personnel Group (Griffin) to obtain copies of, inter alia, his criminal record. (Def. Ex. E, ECF No. 73-5.) Plaintiff's criminal history includes a suspended imposition of sentence imposed on a guilty plea in 2003 to a felony charge of theft of property or services with a value greater than $500 and less than $25, 000. (Pl. Ex. G, ECF No. 77.) Plaintiff's employment with Defendant was terminated on November 20, 2007. (Taylor-Hanneken Decl. ¶ 5.)
At Defendant's directions, a letter dated November 19, 2007, was sent by Griffin to Plaintiff at the address listed on the release he had signed informing him that based on a report from the St. Charles County Judicial Circuit, Defendant was going to rescind its contingent offer of employment. (Def. Ex. I, ECF No. 73-9; Def. Ex. J, ECF No. 73-10.)
On November 21, Plaintiff went to Defendant's offices to discuss the results of his background check and to explain that they were not accurate. (Def. Ex. F, ECF No. 73-6.) Plaintiff met with Jessica Buhse, Defendant's Human Resources Administrator, and was told to get a correct copy of his background and provide it to Griffin. (Pl.'s Dep. at 88-89, 90, ECF No. 73-7.) Plaintiff told her he "was more than willing to give her [his] probation officer's name and number because it was important, that [he] needed the job anyway to be in good standing with his probation officer." (Id. at 89.) He testified in his deposition that she could have also gotten any documentation she needed from the probation officer. (Id.)
Plaintiff applied for nine positions with Defendant from 2010 to 2012. (Pl. Ans. to Inter. ¶ 6, ECF No. 73-8.) The only two applications at issue are ones made on November 19, 2012 – one for job requisition number 12-2819 and one for job requisition number 12- 3155. (Pl. Dep. at 74; Mixon-Page Decl. ¶ 7, ECF no. 73-11.) Seventy-six people applied for number 12-2819. (Mixon-Page Decl. ¶ 12.) Kevin Dudley, an African-American man, was hired. (Id.) Sixty-two people applied for number 12-3155. (Id. ¶ 11.) Patria Shepard, an African-American woman, was hired. (Id.)
On January 4, 2013, Plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging that he had been discriminated against by Defendant because of his race, African-American, and sex, male, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e through 2000e-17. (Def. Ex. A, ECF no. 73-1.) In the narrative portion of the charge, Plaintiff explained that he had been "terminated after just one day of employment due to a negative background check. At that time [he] was told that [he] could reapply for [his] position after [he] completed probation." (Id. ¶ 1.) He did often reapply, but was never hired. (Id. ¶ 2.) Plaintiff amended the charge on March 6, 2013, to additionally state that he had filled out an online assessment test in January 2013 but had not yet been contacted for an interview. (Def. Ex. B ¶ 3, ECF No. 73-2.) The charge was again amended on April 15 to add that he had been retaliated against because of his race and sex. (Def. Ex. C ¶ 4, ECF No. 73-3.) The description of the complained-of acts was not changed.
Ms. Mixon-Page, Defendant's Regional Human Resources Manager, avers that Plaintiff was not hired because of his poor work history as listed on his candidate profile. (Mixon-Page Decl. ¶ 10.) A "stable work history" is viewed by Defendant "as a critical attribute in hiring because [Defendant's] investment of training time and resources for its Collections staff is significant." (Id.) She further avers that she was unaware of Plaintiff's race or criminal history when screening his candidate profile or assessment. (Id. ¶ 8.)
Plaintiff counters that Defendant kept his incorrect background check from 2007. (Pl. Dep. at 75-76.) Moreover, neither Mr. Dudley nor Ms. Shepard are more qualified than he is. (Pl. Resp. at 8-9, ECF No. 82.) The real reason they were hired and he was not is that he was and is being illegally labeled as a "Black Male Convicted of a Felony." (Id. at 9.)
Plaintiff's candidate profile lists seven jobs between 1998 and February 2013. (Pl. Ex. A,  ECF No. 77.) In 1998 and 1999, he worked in customer services and collections for one company, and left that position in 1999 to work in the same field for another company for better wages. (Id.) In 2000, he left that second employer to work for MCI WorldCom. (Id.) He was laid off in 2003, and then went to work as an inventory clerk for RGIS. (Id.) In 2004, he left that employer for the Transportation Security Administration (TSA). (Id.) He was discharged from TSA in 2005. (Id.) In May 2005, he began work in the warehouse of V.I.P. Delivery Systems. (Id.) He was laid off in September 2005. (Id.) In September 2008, he began work with Barnes-Jewish Hospital as an orderly transporting patients. (Id.) He left this job on January 26, 2009. (Id.)
Mr. Dudley's candidate profile lists four jobs between 2004 and February 8, 2013. (Def. Ex. P at 1, ECF No. 73-16.) The first was as an account representative in collections for GC Services from September 2004 to November 2005. (Id.) From November 2005 to April 2006, he worked as a security officer/receptionist for Allie-Barton Security Services. (Id.) From April 2006 to December 2008, he worked as a pharmacy technician associate for Express Scripts. (Id.) And, from December 2008 to June 2011, he worked as a manufacturing engineering technician for Covidien. (Id.) He was laid-off from this job. (Id. at 4.) He obtained an Associates of Arts Degree in Secondary Education in May 2007. (Id. at 1.)
Ms. Shepard's candidate profile listed four jobs between 1998 and February 8, 2013. (Def. Ex. O at 2, ECF No. 73-15.) The first was as a customer service representative for Value City Department Store from 1998 to 2006. (Id.) The second was as a customer service representative in the collections department of Consumer Adjustment Corporation from 2006 to 2008. (Id.) From 2008 to 2009, she worked in the customer service department of U.S. Bank. (Id.) ...