Brown v. Accenture Fed. Servs. & Olivia Smith

IVAN LYDELL BROWN, Plaintiff, v. ACCENTURE FEDERAL SERVICES and OLIVIA SMITH, Defendants.

Civ. No: 15-24-GFVT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION FRANKFORT

June 13, 2016

MEMORANDUM OPINION & ORDER*** *** *** ***

Ivan Brown was employed by Accenture Federal Services (AFS) for several months before his allegedly wrongful discharge. Subsequently, Brown brought suit against AFS and against AFS employee Olivia Smith in her individual and official capacity, alleging racial and gender discrimination in violation of Chapter 344 of the Kentucky Civil Rights Act ("KCRA"), Ky.Rev.Stat. § 344.010 et seq., as well as common law claims for promissory estoppel, negligent hiring and supervision, and "failure to protect." Presently before the Court is the Defendants' Motion to Dismiss [R. 15], which, for the reasons set forth below, will be GRANTED.

I

A

Given the present context, the factual summary that follows is taken from the complaint and construed in favor of the plaintiff. See Crugher v. Prelesnik, 761 F.3d 610, 614 (6th Cir. 2014) (citation omitted). Plaintiff Ivan Lydell Brown, an African-American male, applied for a position as a Federal Substance Abuse Prevention Coordinator (PC) with Defendant AFS, which is a consulting firm for various federal agencies and organizations. [R. 14, ¶¶ 13-14; R. 15-1 at 2.] The job description for this position indicated that the PC would be stationed at the Boone National Guard Center in Frankfort, Kentucky, and would play a crucial role in implementing an initiative for substance abuse services (SASI), ensuring that soldiers with substance abuse issues obtained needed assistance, and tracking and maintaining data on soldiers participating in various SASI programs. [R. 14, ¶ 16.] The job description also stated that "the ability to obtain military security clearance may be necessary for the position," although top secret clearance was not necessary to perform the position's essential functions. [Id., ¶ 17.]

Brown had an initial telephone interview with AFS recruiter Kathy Peterson on January 13, 2014, during which Brown disclosed certain details about his criminal history record, such as his conviction dates, when he was released from probation, and when his civil rights were reinstated. [Id., ¶ 24.] During the interview, Ms. Peterson informed Brown that his criminal history "would not be a barrier" to his employment with AFS, and in fact "would be beneficial" to the position for which he was applying. [Id., ¶ 26.] Also on January 13, 2014, Brown completed the EEO affirmative action information as requested by Ms. Peterson. [Id., ¶ 22.] Subsequently, Brown was contacted by Ms. Patricia Bocanegra, a recruiting administrator in the AFS Human Resources Center, who informed Brown about beginning his background check. [Id., ¶ 27.] Brown then provided the necessary information to HireRight Customer Support, the company AFS uses to conduct background checks on prospective employees. [Id., ¶¶ 28-29.] According to Brown, HireRight initially told him the check would only include information from the last ten years, but later required him to fill out an addendum concerning his criminal history from outside the ten-year period as well. [Id., ¶¶ 29-31.]

After two more interviews, AFS sent Brown an e-mail on January 23, 2014, offering him the PC position, which he accepted. [Id., ¶ 36.] A few days later, on January 27, Ms. Petersoncalled Brown to let him know that his background check was taking longer than expected, and that his official start date would be February 10, 2014. [Id., ¶ 38.] Also on January 27, Ms. Bocanegra informed Brown that there were "a few minor discrepancies" with his employment information, and Brown promptly uploaded the requested employment information so HireRight could finish his background check. [Id., ¶¶ 40-43.] On February 5, 2014, Brown received a congratulatory e-mail from AFS concerning his acceptance of the PC position and confirming his start date. [Id., ¶¶ 44-47.]

Ultimately, Brown officially began his employment with AFS on February 10, 2014, working under Unit Commander Major Harvey. [Id., ¶¶ 16, 21, 44-48.] Upon his employment, Brown was given "temporary access" to Sharepoint, which is a military program that allows state-level substance abuse program coordinators to collaborate with each other. [Id., ¶¶ 18-20, 68.] According to Brown, top-secret clearance was ordinarily necessary to access Sharepoint, but using Sharepoint was not one of the responsibilities listed in his job description. [Id., ¶¶ 18-19.] Brown maintains he was never asked for further information regarding his criminal background during the hiring process, and that he was "continually assured" by Ms. Peterson and Ms. Bocanegra that his prior criminal history would not prevent his employment. [Id., ¶ 49.]

After beginning his employment with AFS, Brown had to undergo a separate military background check through the Personal Security Investigation Center of Excellence (PSI-CoE), which is a government entity that conducts background checks for the United States Army. [R. 15-1 at 3; R. 14, ¶ 53.] This PSI-CoE check was independent of the check conducted by HireRight, and required Brown to fill out "Standard Form 85 - Questionnaire for Non-Sensitive Positions" (SF-85), which is created by the U.S. Office of Personnel Management. [R. 15-1 at 3; R. 15-2; R. 14, ¶¶ 53, 74.] The SF-85 states at the top that it is used by the United Statesgovernment to conduct background investigations, and that "[i]nformation from this form is used primarily as the basis for this investigation. Complete this form only after a conditional offer of employment has been made."¹ [R. 15-2 at 2.] Throughout April 2014, Brown communicated several times with PSI-CoE regarding their various needs for clarification and further background information. [R. 14, ¶¶ 50-51.] Brown ultimately sent his final revisions to PSI-CoE on April 21, 2014. [Id., ¶ 52.] According to Brown, the PSI-CoE military background check required only a five-year criminal history record, and a felony conviction alone would be insufficient to disqualify someone from holding a security clearance. [Id., ¶¶ 74-76.]

Initially, Brown's employment at AFS appeared to be going well. On May 2, 2014, Brown met with Major Harvey to review Brown's work since his start date, and Harvey stated he was "pleased" with Brown's performance. [Id., ¶¶ 54-55.] Later that same day, however, Brown was asked to refrain from participating in a weekly conference call and was then informed by Defendant Olivia Smith that "he had 'failed' his background check and did not need to report back to the worksite." [Id., ¶¶ 56-57.] Around an hour and a half later, Brown was informed by another AFS employee, Rachel Lovejoy, that he had failed the background check "due to his criminal record." [Id., ¶ 58.] On May 8, 2014, PSI-CoE requested additional information from Brown, but later on the same day sent another e-mail stating that Brown's background investigation was no longer necessary. [Id., ¶¶ 59-62.] Brown inquired about this email to Major Harvey, who informed Brown he did not know why PSI-CoE was contacting him or why Brown was being terminated from his postition with AFS. [Id., ¶¶ 61-62.]

On June 2, 2014, Brown had a final discussion with Ms. Lovejoy regarding hisemployment with AFS. Lovejoy gave Brown a "transition" document and asked him to sign and date it right away, even though he had twenty-one days to do so. According to Brown, the "transition" document would release AFS "from all liability for all forms of discrimination and other causes of action." [Id., ¶¶ 64-66.] Brown further claims that at some point on that same day, he logged in to his work computer and viewed a monthly status report written by Barbara Conley, a Caucasian female, who was an Alcohol and Drug Control Officer and a "director supervisor" of Brown's. Ms. Conley's status report indicated that her background investigation application had been cancelled. Ms. Conley and Mr. Brown had applied for their military clearances on the same day. [Id., ¶¶ 67-73.] Brown's complaint indicates that on June 3, 2014, Conley's status report was revised to omit mention of the background investigation cancellation, and that when AFS learned Brown had seen the report, AFS "immediately removed [Brown's] access to its computer network and the email account." [Id., ¶¶ 72-73.]

Brown's amended complaint alleges that Olivia Smith and Rachel Lovejoy must have lied to him when they told him he was fired due to failing a background check, because PSI-CoE contacted Brown requesting more information on the same day he was told he had failed the check.² [Id., ¶¶ 78-79.] Because he was given positive performance reviews from Major Harvey, and because AFS employees repeatedly assured Brown his criminal record would not be a barrier to his employment, Brown alleges there was no legitimate reason for AFS to terminate him and that AFS must have done so "for discriminatory reasons." [Id., ¶¶ 80-82.] Brown therefore claims AFS discriminated against him because of his race and gender in violation of KRS § 344, and his amended complaint also seeks relief based on claims of promissory estoppel,negligent hiring, failure to protect, and denial of his due process rights. [Id. at 10-15.] Both Defendants - AFS and Olivia Smith - move to dismiss these claims.

B

Defendants properly removed this action from Franklin Circuit Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. The Court maintains diversity jurisdiction over this case because AFS and its members and affiliates are citizens of Delaware, and Olivia Smith is a citizen of Virginia³ for purposes of 28 U.S.C. § 1332, while Brown is a citizen of Kentucky; and the amount in controversy, which includes actual and compensatory damages as well as punitive damages and attorney fees, easily exceeds $75,000.

Defendants first moved to dismiss the complaint in May 2015, and...