Convicted Murderer Survives Motion to Dismiss in Hiring Suit

Employment Law

Employers in New York may be liable for the failure to hire a convicted murderer, a federal court judge in the state ruled, refusing to dismiss a proposed class action.

Henry Franklin was convicted of second-degree murder and paroled in 2018 after serving nearly 25 years in prison.

In April 2019, he applied for a job as a delivery worker with Cornucopia, a vendor that contracts with Amazon to provide delivery workers for its subsidiary Whole Foods. Franklin claimed that the application, which was posted on a recruiting website, stated that applicants must consent to a background check as part of the job application process.

Franklin alleged that he received a letter from Amazon shortly after completing the online application informing him that Amazon had performed a background check and would make a final decision in 10 days.

Two weeks later, Franklin said he received a second letter from Amazon informing him that his application had been denied “in whole or in part” due to information contained in the background report.

Franklin filed a putative class action against Cornucopia, Whole Foods and Amazon. He alleged that the defendants unlawfully discriminated against him based on his criminal history and that they used discriminatory screening policies and practices in violation of the New York State Human Rights Law (NYSHRL), the New York City Human Rights Law (NYCHRL) and the New York State Fair Credit Reporting Act (NY FCRA).

The defendants moved to dismiss the complaint.

While acknowledging that it was a close call, U.S. District Court Judge Valerie Caproni denied the motion.

First, she declined to let Amazon and Whole Foods off the hook, despite their argument that only Cornucopia was Franklin’s prospective employer.

“The court bases its conclusion on the facts pled that tend to show that Amazon has veto power over hiring,” she wrote. “With respect to employee selection, in its letters to [Franklin], Amazon stated that a criminal background check was required to determine his eligibility ‘to deliver to Amazon customers on behalf of [Cornucopia].’ When Amazon rejected [Franklin’s] ‘request to provide services to Amazon on behalf of [Cornucopia],’ that was, apparently, the end of any prospect [Franklin] had for becoming a Cornucopia employee.”

Although the complaint could have more clearly alleged the connection, a fair inference existed that because Amazon rejected Franklin as someone who could deliver Amazon products, Cornucopia would not hire him, Caproni explained.

She then found that Franklin stated a claim of employment discrimination under both New York state and city law.

Applying the McDonnell Douglas three-part, burden-shifting framework to consider the NYSHRL claim, Caproni focused on the dispute as to whether Franklin adequately alleged facts that gave plausible support to a minimal inference of discriminatory motivation.

The NYSHRL does not prohibit consideration of an applicant’s criminal history in deciding whether or not to hire an individual. Such consideration is only permissible if a prospective employer can demonstrate that one or both of the law’s two exceptions apply: if the criminal conviction (1) has a “direct relationship” to the position sought, or (2) if granting employment would pose an “unreasonable risk” to the public.

The defendants argued that Franklin only offered his own subjective opinion that his conviction had a direct relationship with the job or posed an unreasonable risk, which was insufficient to state a claim.

But the court disagreed.

“Franklin has stated a claim, although again just barely, that the two exceptions do not apply to him, nudging his discrimination claim from the conceivable to the plausible,” Caproni said.

Pursuant to the statute, a direct relationship “means that the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the … job in question.”

As Franklin wasn’t convicted of a vehicular offense, he adequately alleged that there was no direct relationship between his conviction and his fitness or ability to deliver Whole Foods groceries.

The defendants faced a similar result with regard to the second exception.

“The court is sympathetic to defendants’ likely position that they do not want a convicted murder delivering groceries to their customers’ homes,” Caproni wrote. “But considering the allegations in the complaint in the light most favorable to Franklin, he has adequately alleged that he is rehabilitated and no longer poses a threat to the public.”

Franklin was paroled by the state of New York, which required a determination that he did not pose an unreasonable risk to anyone’s property, safety or welfare. He also told the court that individuals familiar with his life since his release from prison could attest to the fact that he was rehabilitated.

Alternatively, the defendants countered that Franklin could not adequately plead an inference of discrimination because they had a legitimate, nondiscriminatory reason for declining to hire him: He lied on his employment application. They alleged that Franklin answered “no” when asked as part of his application whether he had any prior convictions.

Despite this qualifying as a legitimate reason for taking an adverse employment action, “alleged legitimate reasons for the adverse employment action cannot be considered on a motion to dismiss,” Caproni said.

Instead, the defendants must wait for summary judgment or trial, she said.

To read the opinion and order in Franklin v. Whole Foods Market Group, Inc., click here.

Why it matters: The decision was a tough blow for the defendants, with the court finding that the plaintiff “barely” made adequate allegations to survive the motion to dismiss. “Whether [Franklin] can sustain that position at summary judgment remains to be seen,” the court noted.



pursuant to New York DR 2-101(f)

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