Najiy-Ullah Aziyz v. Cameca, Inc. ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 18, 2022 *
Decided February 7, 2022
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-2550
NAJIY-ULLAH AZIYZ, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin.
v. No. 3:20-cv-00896-wmc
CAMECA, INC., et al., William M. Conley,
Defendants-Appellees. Judge.
ORDER
Plaintiff Najiy-Ullah Aziyz sued Cameca, Inc. for briefly rescinding its offer of
employment. A week after Aziyz accepted a job offer at Cameca, he was told that,
because of a previous felony conviction, the job offer was being rescinded. The next
day, however, Cameca contacted him again to explain that the rescission had been a
*
We agreed to decide the case without oral argument because the briefs and record adequately
present the facts and legal arguments, and oral argument would not significantly aid the court. Fed. R.
App. P. 34(a)(2)(C).
No. 21-2550 Page 2
mistake and that the job was still his. Despite Cameca’s assurances, Aziyz alleges, he
still had doubts. On the day of his orientation, he sent an email saying he would not
work for Cameca. He later filed this suit alleging race and age discrimination and a
violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681b. The district court
dismissed the case for failure to state a claim. We affirm. Even taking Aziyz’s factual
allegations at face value, he has failed to allege that Cameca took any adverse
employment action against him.
Aziyz is African American and over the age of 40. He interviewed with Cameca
and accepted a job offer conditioned on an acceptable background report. The next
week, after receiving the report from a third-party vendor called HireRight, Cameca
told Aziyz that he was cleared to begin work. The company asked him to complete tax
forms and established his start date. Because the position called for remote work,
Cameca planned to send a laptop computer and cell phone to Aziyz.
The background report revealed no issues, but Cameca human resources
manager Anne Stroud noticed inconsistencies in the report regarding Aziyz’s
graduation date, age, and work history. Her observations prompted Cameca to perform
an additional internet search for more information about Aziyz, which revealed that he
had been convicted of a felony nearly thirty years earlier. Stroud called Aziyz and
explained that his would-be supervisor had been informed of his conviction and that,
because of the conviction, his job offer was being rescinded.
The next day, however, Stroud called back to tell Aziyz that she had been
mistaken and that the position was still his. Steven Turnbull, Cameca’s vice president of
human resources, also called Aziyz to apologize. Turnbull followed up with an email to
Aziyz reaffirming Cameca’s offer of employment and confirming Aziyz’s start date. The
next day, Aziyz emailed Turnbull expressing reservations about starting the job. Aziyz
asked how Cameca could ensure that he would not be unfairly targeted and if he could
have a different supervisor or work in a different department. Turnbull replied that
Cameca was committed to treating him fairly and that its decision to hire him should
assure him of that. Aziyz did not respond further that day.
The next day, on Cameca’s planned start date for Aziyz, Turnbull again emailed
Aziyz to ask if he intended to start work. Aziyz replied that he did not and that he
would not work for Cameca. He explained that he feared retaliation and did not believe
the job offer was in “good faith.” Aziyz had not yet received from Cameca the laptop
computer and phone. Cameca later hired someone who was younger and not African
American for the position.
No. 21-2550 Page 3
Aziyz sued, alleging violations of Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act, and the Fair Credit Reporting Act. According to
Aziyz, Cameca’s policy of considering job candidates’ criminal convictions has a
racially disparate impact on African American applicants. He reasoned that African
Americans are incarcerated at a higher rate than whites, so searches were more likely to
uncover prior convictions that disqualify them as candidates. He also asserted that
Cameca’s decision to hire a younger candidate after Aziyz turned down the job
amounted to age discrimination. He also alleged that Cameca’s failure to disclose the
HireRight background report before rescinding the job offer violated the Fair Credit
Reporting Act. Aziyz also raised several state-law claims. Cameca moved to dismiss
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
The district court granted the motion to dismiss the discrimination claims,
finding that Aziyz had failed to plead adequately an adverse employment action. Aziyz
admitted that he rejected the job offer after repeated assurances from Cameca that the
job was his. The court also dismissed Aziyz’s claim under the Fair Credit Reporting Act,
again finding that he had not alleged any adverse action stemming from the
background report. With no federal claims left, the district court declined to exercise
jurisdiction over the state law claims. Aziyz appeals only the dismissal of his federal
claims.
Aziyz argues that he alleged a sufficient connection between Cameca’s practice
of investigating and considering old criminal convictions and a disparate impact on
African American job applicants. Ayziz’s discrimination claims fail because his
allegations show that he did not suffer an adverse employment action, which is an
essential element of his race- and age-discrimination claims. See Boss v. Castro, 816 F.3d
910, 917 (7th Cir. 2016) (Title VII race discrimination); Barton v. Zimmer, Inc., 662 F.3d
448, 453 (7th Cir. 2011) (ADEA). 1
Aziyz insists that Cameca had no intention of following through on its job offer
after discovering his criminal conviction. But speculative future adverse action is not
adverse action. See Nagle v. Village of Calumet Park, 554 F.3d 1106, 1121 (7th Cir. 2009)
(affirming summary judgment for employers; suspension that was never served did not
amount to adverse action); Ajayi v. Aramark Business Services, Inc., 336 F.3d 520, 531 (7th
1
We do not mean to suggest that a plaintiff must plead the elements of an employment
discrimination claim. See generally Kaminski v. Elite Staffing, Inc., — F.4th —, —, No. 21-1616, 2022 WL
168260 (Jan. 19, 2021) (discussing pleading requirements). But in this unusual case, Aziyz has pleaded
himself out of court. His own allegations show that he suffered no adverse employment action.
No. 21-2550 Page 4
Cir. 2003) (affirming summary judgment for employer in relevant part; announced plan
to demote plaintiff was never carried out: “An unfulfilled threat, which results in no
material harm, is not materially adverse.”). Aziyz’s own allegations show that he did
not confirm his willingness to start work but instead rejected Cameca’s job offer on the
morning his orientation was to begin.
Aziyz’s rejection of the job offer also defeats any argument that Cameca’s failure
to send the laptop and phone showed that it did not intend to follow through on the job
offer. Moreover, in his email rejecting the job offer, Aziyz did not identify the lack of a
laptop computer or phone as a basis for his refusal to start work, nor did he allege that
he ever told Cameca during the numerous conversations leading up to his orientation
that he had not received them.
Aziyz’s rejection of the job offer also dooms his age-discrimination claim. To
state a claim of age discrimination under a failure-to-hire theory, Aziyz must assert that
he was passed over in favor of a similarly situated younger applicant. See Sembos v.
Philips Components, 376 F.3d 696, 700 (7th Cir. 2004). Aziyz admits, though, that Cameca
persisted in its job offer, and he rejected it. Accordingly, Cameca’s later hiring of a
younger applicant to fill the position Aziyz turned down cannot rescue this claim. 2
Finally, Aziyz argues that the district court erred in dismissing his claim under
the Fair Credit Reporting Act because HireRight’s report caused Cameca to revoke,
temporarily, his job offer. Under the Act, an employer must, before taking any adverse
action against a job applicant based on a consumer report, provide a copy of it to the
applicant. 15 U.S.C. § 1681b(b)(3)(A); see Robertson v. Allied Solutions, LLC, 902 F.3d 690,
695–96 (7th Cir. 2018). Cameca does not dispute that HireRight’s background report
qualifies as such a report or that Aziyz was entitled to receive a copy of the report if it
caused an adverse action. But the district court correctly reasoned that the temporary
rescission of the offer does not satisfy the Act’s definition of “adverse action,” which
requires “a denial of employment” or a “decision for employment purposes that
adversely affects any … prospective employee.” § 1681a(k)(1)(B)(ii). Cameca did not
deny Aziyz employment or otherwise make an employment decision that harmed him.
2
Cameca argues on appeal that the absence of an alleged adverse employment action means that
Aziyz lacks constitutional standing, citing dicta in Melendez v. Illinois Bell Telephone Co., 79 F.3d 661, 668
(7th Cir. 1996). Melendez, however, affirmed a jury verdict for an age-discrimination plaintiff and did not
blur the line between jurisdiction and merits. More generally, our cases treat adverse action as an element
of a plaintiff’s claim on the merits rather than as a separate jurisdictional issue. We agree with the district
court that Aziyz’s claims fail on the merits, not for lack of jurisdiction.
No. 21-2550 Page 5
We also agree with the district court that even if there had been a conceivable harm
under the Act, it would have stemmed from the independent investigation and not, as
is required, from HireRight’s report. Aziyz alleges in his amended complaint that the
background report did not reveal his criminal conviction. The basis of Cameca’s
temporary rescission was the company’s additional, independent internet investigation,
not the report itself.
AFFIRMED.