United States District Court, M.D. Tennessee, Northeastern Division
For Bachar Haddad, Plaintiff: James M. Johnson, LEAD ATTORNEY, Law Office of James M. Johnson, Chattanooga, TN; Grace E. Daniell, Grace E. Daniell, P.C., Chattanooga, TN.
For Wal-Mart Stores East, LP, Defendant: Kyle A. Young, Margaret R.T. Myers, LEAD ATTORNEYS, Adams and Reese LLP (Nashville), Nashville, TN.
KEVIN H. SHARP, UNITED STATES DISTRICT JUDGE.
The issue presented by Defendant Wal-Mart's pending Partial Motion to Dismiss or for Summary Judgment is whether Plaintiff can expand a national origin disparate treatment charge before the Equal Employment Opportunity Commission, to a disparate impact claim in this Court based upon a preemployment test. Under the factual circumstances of this case, the Court finds that he cannot, grants Wal-Mart's Motion, and dismisses Plaintiff's disparate impact claim.
In the spring of 2011, Plaintiff, who claims to be a permanent resident of Syrian decent, filed an application for work at a Wal-Mart located in Crossville, Tennessee.
As a part of the application process, Plaintiff took Walmart's Retail Pre-Employment Assessment test. Plaintiff was not hired.
On October 11, 2011, Plaintiff filed a Charge of Discrimination with the Tennessee Human Rights Commission and the EEOC, alleging race and national origin discrimination. Plaintiff checked the " race" and " national origin" discrimination boxes on the charge, and wrote that he believed discrimination occurred " because of my name."
Included with the charge was a two-page type-written letter penned by Plaintiff. The letter did not discuss or mention Wal-Mart's RPEA test, or allege or suggest that the test has a disparate impact on persons of a specific national origin or race. Further, neither the charge or the letter mentioned any employment policies of Wal-Mart.
The THRC, as is standard course, investigated Plaintiff's allegation and, in doing so, requested a statement of position from Wal-Mart, and copies of pertinent rules, policies or procedures. Wal-Mart responded that Plaintiff was not hired because his score on the RPEA test - an allegedly facially neutral hiring policy - was too low, making him " not competitive." (Docket No. 41-1 at 2).
Subsequently, the THRC sent an e-mail, requesting that Wal-Mart provide Plaintiff's score on the test, a copy of the test (if available), and a breakdown for Tier 1 and Tier 2 scores.  In response, Wal-Mart provided Plaintiff's test score range. It did not provide his exact score or the actual test, claiming that the request sought " highly confidential [and] proprietary information." (Docket No. 41-2 at 2).
On July 12, 2012, the THRC issued its Notice of Determination, stating " [e]xamination of the evidence indicates that there is no reasonable cause to believe that the respondent has engaged in discriminatory practice" and forwarded the same to the EEOC. The EEOC adopted the findings of the THRC and, on August 13, 2012, issued a Dismissal and Notice of Rights to Sue.
Plaintiff, then proceeding pro se, filed his Complaint in this Court on October 31, 2012, claiming that Wal-Mart was " in violation" of the THRA and the " equal employment opportunity and anti discrimanation [sic] laws." (Docket No. 1 at 1). Plaintiff also wrote in the form Complaint, that a Wal-Mart ...