Glover v. Tigani

666 F.Supp.3d 896

Wilbert GLOVER, Plaintiff, v. Greg TIGANI; Keith Kulas; Stephanie Syvret, Trvis;and American Credit Acceptance, Defendants.

Civil No. 23-171 (JRT/TNL)

United States District Court, D. Minnesota

Signed March 31, 2023

Wilbert Glover, 435 University Ave. East, St. Paul, MN 55130, pro se plaintiff.

Sharon Robin Markowitz, STINSON LLP, 50 South Sixth Street, Suite 2600, Minneapolis, MN 55402, for defendants.

ORDER

JOHN R. TUNHEIM, United States District Judge

This matter is before the Court for review of Plaintiff Wilbert Glover's complaint, see (Docket No. 1), and in forma pauperis (IFP) application, see (Docket No. 2), pursuant to 28 U.S.C. § 1915(e)(2). After that review and for the reasons addressed below, this Court finds that the Complaint fails to state a claim upon which relief can be granted. Therefore, the complaint, (Docket No. 1), is dismissed without prejudice and Glover's IFP application, (Docket No. 2), is denied as moot.

BACKGROUND

Here, Glover claims that since 2019, he has had a car loan through American Credit Acceptance (ACA), requiring him to make monthly payments to ACA. (Compl. ¶ 7, Docket No. 1).¹ Plaintiff asserts that in June 2020, he called ACA and spoke to a representative who stated his account was a "disaster" and said, "you Black people Wilbert Glover hate to pay bills," and then terminated the call. Id. When he tried calling her back, he claims his phone number was blocked. Id. According to Glover, sometime later, he was denied a home mortgage because he was told his credit report reflected that he was behind on his car loan with ACA. (Compl. at ¶ 8, Docket No. 1). Glover claims that when he called ACA to dispute this report, Tvis in customer service said, "Wilbert you sound like a wetback Mexican Mayate you are color mix race refuse to pay on this account after contract term." Id. Glover claims that after these comments he asked to speak with Tvis's supervisor, and he was put on hold, but then the call was terminated. Id.

According to Glover, he then called ACA using his nephew's phone because he kept getting a busy signal when he used his own phone. Using his nephew's phone, he claims he spoke with Defendant Keith Kulas who stated that ACA received a payment for November 2021 but no payment for December 2021. (Compl. at ¶ 9, Docket No. 1). Glover alleges that Defendant Keith Kulas then proceeded to say, "you Black people make up a excuse not to pay your bill." Id. Glover then mailed copies of his receipts showing he made his car payments to ACA. Id. Glover claims that he again used his nephew's phone to call ACA in May 2022 and spoke to Greg Tigani, Chief Officer, who said, "the supervisor don't want to with you Wilbert Black Beetle Mayate about retail installment credit contract Wilbert you are in default because you have failed to make timely missed payments as agreed." (Compl. at ¶ 10, Docket No. 1). According to Glover, he has documentation showing that he did not miss any payments. Id. Glover alleges that Defendant Stephanie Syvret has personal knowledge of the activity on his account and failed to supervise ACA employees. (Compl. at ¶ 11, Docket No. 1). Glover claims that ACA intentionally lied about his payment history because of his race and discriminated against him, which caused his credit score to drop. Id.²

LEGAL STANDARD

Pursuant to 28 U.S.C. § 1915(e)(2), when a plaintiff requests to proceed in forma pauperis (IFP), the court shall dismiss the case at any time the court determines that the action is "frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

In determining whether a complaint states a claim, the Court must accept as true all the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014). The factual allegations need not be detailed, but they must be sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Further, the complaint must "state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Although pro se complaints, such as this one, are entitled to a liberal construction, Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), they must nevertheless contain specific facts in support of the claims it advances. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).

LEGAL ANALYSIS

In this action, Glover alleges violations of 42 U.S.C. §§ 1981, 1982; 15 U.S.C. §§ 1681, 1692; and Minn. Stat. § 363A.12. (Compl. at p. 4, Docket No. 1).³ None, however, provides the relief Glover seeks in his Complaint.

A. 42 U.S.C. § 1981 and 42 U.S.C. § 1982

Starting from the top, 42 U.S.C. § 1981 provides, in pertinent part, that "[a]ll persons within the jurisdiction of the United States [ ] have the same right in every State and Territory to make and enforce contracts . . . ." 42 U.S.C. § 1981(a). To "make and enforce contracts" includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Here, as in Glover I, Glover appears to allege that ACA unlawfully discriminated against him based on his race by falsely reporting to the credit reporting bureaus that he had missed his car loan payments. Glover I, 2023 WL 158198 at * 4.

As the Court explained in Glover I, a plaintiff may prove unlawful discrimination under § 1981 "through either direct or circumstantial evidence." Id. (quoting Lucke v. Solsvig, 912 F.3d 1084, 1087 (8th Cir. 2019)). "To prove intentional discrimination through direct proof, a plaintiff must establish a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the [ ] decision." Young v. Builders Steel Co., 754 F.3d 573, 577 (8th Cir. 2014) (citing Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012) (internal citation omitted)).

Glover claims that a number of ACA employees, including "a lady in the executive office," Tvis, Keith Kulas, and Greg Tigani, "chief officer," made derogatory comments about him based on his race. In Glover I, the Court concluded that Glover did not establish a plausible claim for direct discrimination because none of the people who allegedly made discriminatory statements to him were decisionmakers. Glover I, 2023 WL 158198 at *4 (citing Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993) (explaining that direct discrimination in the ADEA context requires the plaintiff to allege "conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the discriminatory attitude" of the organization). Similarly, here, Glover does not allege that the "lady in the executive office," Tvis, or Keith Kulas have any decision making authority. See King v. Hardesty, 517 F.3d 1049, 1058 (8th Cir. 2008) (explaining that alleged statements are not direct evidence of discrimination unless that are "uttered by individuals closely involved" in decisions) (citing Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991)), overruled on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011)).

The closest Glover gets to curing this deficiency is by identifying defendant "Greg Tigani"—one of the ACA employees who allegedly made discriminatory comments to him—as "chief officer." (Compl. at ¶ 10, Docket No. 1). Glover's efforts fall short, however, because he does not allege that Tigani was at all involved in reporting customer's payment history to the credit reporting bureaus. Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (defining direct evidence as "showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated" the decision). Even if Tigani is a decisionmaker, because Glover does not allege that he is a decisionmaker related to his claims, the racist statements Tigani allegedly made to him are simply insufficient to establish a claim of direct intentional discrimination.

As the Court did in Glover I, this Court next evaluates Glover's discrimination claims under the McDonnell Douglas burden-shifting framework to determine whether Glover has established a claim for intentional discrimination with circumstantial evidence. Under McDonnell Douglas, "a plaintiff may establish a prima facie case of racial discrimination through evidence giving rise to an inference that she has been intentionally discriminated against because of her race . . . by showing that a similarly-situated person of another race received more favorable treatment." Lucke, 912 F.3d at 1087 (citing Young, 754 F.3d at 577). That person "must be similarly situated in all relevant respects." Id. Glover's intentional discrimination claim under § 1981 fails under this test because he does not allege that anyone similarly situated to him received more favorable treatment. Indeed, he does not make any showing related to similarly-situated ACA customers. Id. ("The plaintiff has the burden of locating similarly-situated comparators.") (citing Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994)). According, the Court finds that Glover has failed to...