Yakik Rumley v. Democracy Prep ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3540
__________
YAKIK RUMLEY,
Appellant
v.
DEMOCRACY PREP, (Freedom Prep)
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-19-cv-14316)
District Judge: Honorable Renée M. Bumb
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 1, 2020
Before: SHWARTZ, RESTREPO and NYGAARD, Circuit Judges
(Opinion filed: May 1, 2020
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OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Yakik Rumley appeals the District Court’s order declining to exercise
supplemental jurisdiction over a state law claim and denying his motion to reopen as
moot. For the reasons below, we will affirm the District Court’s judgment.
Rumley applied for a position teaching high school with Appellee Democracy
Prep. Appellee offered him the position but rescinded the offer after it learned that
Rumley had a criminal conviction1 he did not disclose on his job application.2 After
filing a complaint with the EEOC and receiving a right-to-sue letter, Rumley filed a
complaint in the District Court for the District of New Jersey. In his complaint, Rumley
alleged that Appellee violated Title VII because it terminated his offer of employment
after performing an internet search and failed to allow him to respond to what it found.
The District Court denied Rumley’s application to proceed in forma pauperis (IFP)
1
Rumley attached to his complaint an order by the New Jersey Department of Education
State Board of Examiners suspending Rumley’s teaching certificates for two years. The
Board noted that Rumley had permanently surrendered his New York teaching
certificates as part of a guilty plea to disorderly conduct. The Board described the
incident: “Rumley had allegedly assaulted and threatened a student by telling the student
‘Don’t lie on me again or I’ll f-ck you up,’ and squeezing his hands around the student's
neck, pushing him into a wall and later scratching his face.” The Board also related a
subsequent conviction arising from when “Rumley physically injured his girlfriend’s
friend when he forced his way into their apartment after being refused entry.”
2
Rumley claims that Appellee conducted an unauthorized internet search and he was not
given the opportunity to explain his criminal history before the offer was rescinded.
However, the copy of the application he submitted with his brief asks about criminal
convictions or pending charges. The application requests that an applicant answering that
question in the affirmative explain the conduct behind the conviction and why Appellee
could be confident that such conduct would not be repeated or affect his work with
Appellee. Thus, Rumley did have the opportunity to explain why he should still be
considered for the job despite his criminal history. He chose instead to answer “No” to
the question about criminal convictions. He then certified that the information he
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without prejudice because his IFP application did not establish his inability to pay the
filing fee. The District Court noted that Rumley’s allegations did not state a claim for
discrimination in violation of Title VII because having a prior criminal conviction was
not a protected status. The District Court granted him leave to amend his complaint.
Rumley filed an amended complaint alleging that Appellee violated a New Jersey
state law, the Opportunity to Compete Act (OCA), because it considered his criminal
history before he could complete a background check document. See N.J. Stat Ann. §
34:6B-14(a). The District Court again determined that Rumley had not established his
inability to pay the filing fee and denied his IFP application without prejudice. It also
observed that Rumley had failed to state a claim under the OCA because he alleged that
Appellee investigated his criminal history after an offer had been extended and not during
the initial application process. See N.J. Stat Ann. § 34:6B-14(c) (nothing prohibits
employer from inquiring about criminal record after initial employment application
process). The court noted that the OCA did not prevent employers from refusing to hire
an applicant based on his criminal record. Id. The District Court gave Rumley thirty
days to amend his complaint a second time. It warned him that a failure to file an
amended IFP application and second amended complaint would result in the dismissal of
the case with prejudice.
Rumley paid the filing fee for the complaint but did not file a second amended
complaint within the thirty-day period allowed by the District Court. Instead he
provided was “true, complete, and correct” and authorized Appellee to contact and obtain
information from, inter alia, public agencies and licensing authorities.
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submitted a letter from a Legal Services attorney written to Appellee on Rumley’s
behalf.3 The District Court dismissed the case with prejudice on September 20, 2019. In
response to a subsequent filing by Rumley, the District Court gave Rumley thirty days to
file a motion pursuant to Rule 60(b) to reopen the case. Rumley then filed a Second
Amended Complaint alleging that Appellee had asked about his criminal history on the
initial job application.
By order entered October 16, 2019, the District Court declined to exercise
supplemental jurisdiction over the only remaining state law claim pursuant to 28 U.S.C.
§ 1367(c)(3) and denied the motion to reopen as moot. It also noted that Rumley could
not meet the amount in controversy requirement for diversity jurisdiction because the
New Jersey state law explicitly disclaimed a private right of action for job applicants and
the civil penalty was limited to $10,000. See N.J. Stat Ann. §§ 34:6B-18 & 34:6B-19. In
addition, the court observed that employers that are required to conduct background
checks, like schools, are exempt from the state law at issue. Rumley filed a notice of
appeal from the District Court’s October 16, 2019 order, and we have jurisdiction
pursuant to 28 U.S.C. § 1291.43
In the letter, the attorney stated that Rumley indicated that he did not falsely fill out any
job application and was never asked to complete a written employment application.
4
Because Rumley’s Rule 60(b) motion was filed within 28 days of the September 20,
2019 judgment, the time to appeal the September 20, 2019 order ran from the entry of the
order denying the Rule 60(b) motion. Fed. R. App. P. 4(a)(4)(A)(vi). Thus, the scope of
the appeal encompasses both the order dismissing the case with prejudice as well as the
order denying the motion to reopen.
4
In his brief, Rumley argues that the District Court erred in determining that
Democracy Prep is a school in New Jersey. However, the District Court’s discussion of
Appellee’s possible exemption from the Opportunity to Compete Act was not part of its
dispositive holding. The District Court declined to exercise jurisdiction over that state
law claim. It then pointed out that, in any event, the claim was without merit. Rumley
does not argue on appeal that the District Court abused its discretion in declining to
exercise supplemental jurisdiction over his state law claim, and this argument is waived.
See 28 U.S.C. § 1367(c); Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26
F.3d 375, 398 (3d Cir. 1994). Nor does he contend that the District Court erred in
determining that it did not have diversity jurisdiction over this state law claim. See 28
U.S.C. § 1332. Moreover, we see no error or abuse of discretion in the District Court’s
conclusions.
Rumley also argues that the District Court erred in concluding that he had failed to
state a claim for discrimination under Title VII because having a criminal record is not a
protected characteristic. He contends that job decisions based on criminal record
disparately impact African-Americans and, because he is African-American, he stated a
claim for disparate impact discrimination based on race. However, besides checking the
boxes on his original form complaint to indicate that the alleged discrimination was based
on race and color, Rumley did not make any allegations of discrimination based on race
or color or disparate impact in the complaint. He simply alleged that his employment
offer was rescinded by Appellees without allowing him to list any prior convictions or
respond to what Appellees had discovered. He did not amend his Title VII claim and
5
include it in either his Amended or Second Amended Complaints. He cannot now raise a
disparate impact argument on appeal. See Webb v. City of Philadelphia, 562 F.3d 256,
263 (3d Cir. 2009) (failure to raise issue results in waiver); United States v. Anthony
Dell’Aquilla, Enters. and Subsidiaries, 150 F.3d 329, 335 (3d Cir. 1998)(“[A]bsent
exceptional circumstances, an issue not raised in district court will not be heard on
appeal.”).
The dismissal of the state law OCA claim pursuant to 28 U.S.C. § 1367(c) should
have been without prejudice. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). We will,
therefore, modify the District Court’s judgment to dismiss the state law claim without
prejudice and, for the reasons given in this opinion, affirm the District Court’s judgment
as modified. Appellant’s motion to supplement the record is denied.
6