11-3995-cv
Cancel v. The Home Depot



                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 21st day of November, two thousand twelve.

PRESENT:

                  JOSÉ A. CABRANES,
                  ROBERT D. SACK,
                  SUSAN L. CARNEY,

                                    Circuit Judges.

_____________________________________

FRANKIE CANCEL,

                           Plaintiff-Appellant,

                  v.                                                   No. 11-3995-cv

THE HOME DEPOT, et al.,

                  Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                                  FRANKIE CANCEL, pro se, New York, NY.

FOR DEFENDANTS-APPELLEES:                                 DONALD R. LIVINGSTON, Akin Gump Strauss
                                                          Hauer & Feld LLP, Washington, DC.



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     Appeal from the judgment of the United States District Court for the Eastern District of
New York (Roslynn R. Mauskopf, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

         Plaintiff-appellant Frankie Cancel, proceeding pro se throughout this litigation, sought
employment at The Home Depot in 2008, but his application was denied pursuant to a company
policy against hiring convicted felons. Cancel was convicted in 1992 of felony manslaughter. Cancel
then filed this suit in 2010, alleging that The Home Depot’s hiring policy discriminated against him
because of his African American and Hispanic ethnicity in violation of 42 U.S.C. § 1981 and § 1985
and multiple state laws.1 The defendants-appellees—The Home Depot corporation and various
employees—then moved to dismiss the federal claims under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. In an order dated August 24, 2011, the District Court granted the motion,
dismissing Cancel’s federal claims with prejudice under Rule 12(b)(6) and declining to exercise
supplemental jurisdiction over his remaining state-law claims.

        As relevant here, the District Court held that Cancel’s “claim based on racial discrimination
by disparate impact . . . is simply not cognizable under 42 U.S.C. § 1981.” Dist. Ct. Op. at 6 (citing
Gen’l Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982)). The Court pointed out that
Cancel had “fail[ed] to allege any facts supporting his contention that Home Depot engaged in
intentional discrimination based on race or national origin . . . .” Id. Furthermore, the Court
explained that it would be futile to grant Cancel leave to replead because “[i]nherent in his claim is
the concept of disparate impact on racial minorities based on a facially neutral policy, which is not a
recognized avenue of relief under 42 U.S.C. § 1981.” Id.

        On appeal, Cancel argues that the District Court erred because he “demonstrated racial
discrimination through the disparate treatment of minorities through a discriminatory practice of
disqualifying ex-offenders.” Appellant’s Br. 5. We assume the parties’ familiarity with the facts and
procedural history of this case.




1 Cancel’s opening brief on appeal contests the District Court’s ruling only with respect to his disparate-impact

discrimination claim. He did not dispute the District Court’s holdings with respect to retaliation under § 1981, or his
claims under § 1985. Therefore, even making due allowance for his pro se status, see Small v. Sec’y of Health & Human
Servs., 892 F.3d 15, 16 (2d Cir. 1989), he has waived those claims, see McCarthy v. S.E.C., 406 F.3d 179, 186 (2d Cir. 2005)
(“[A]rguments not raised in an appellant’s opening brief, but only in his reply brief, are not properly before an appellate
court even when the same arguments were raised in the trial court.”). Regardless of waiver, though, Cancel’s additional
arguments are plainly meritless for the reasons stated in the District Court’s opinion.



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                                                    DISCUSSION

         We review the District Court’s dismissal under Rule 12(b)(6) de novo, accepting all
nonconclusory factual allegations in the complaint as true, and drawing all reasonable inferences in
the plaintiff’s favor. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted). “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.” Id. When reviewing the plausibility of discrimination claims, we may consider obvious
alternative explanations for the adverse action. Id. at 682. We construe pro se complaints liberally.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).

          We have reviewed the complaint de novo and agree with the District Court that Cancel failed
to allege plausible facts showing an intent to discriminate. Cancel’s claim is entirely predicated on a
disparate-impact theory, which is not a valid basis for a § 1981 claim. See Gen’l Bldg. Contractors Ass’n,
Inc. v. Pennsylvania, 458 U.S. 375, 383–91 (1982). Moreover, we conclude for substantially the reasons
stated in the District Court’s opinion that it would be futile to allow Cancel to amend his complaint.2

                                                   CONCLUSION

       We have considered all of Cancel’s arguments on appeal and find them to be meritless.
Accordingly, we AFFIRM the judgment of the District Court.


                                                                  FOR THE COURT:
                                                                  Catherine O’Hagan Wolfe, Clerk




2 Title VII allows for certain employment-discrimination claims to proceed on a disparate-impact theory, see 42 U.S.C.
§ 2000e-2(k), but plaintiffs must first file a timely claim with the U.S. Equal Employment Opportunity Commission, see
id. § 2000e-5(b), (e), (f)(1), which Cancel did not do. Moreover, in assessing futility, we have not considered the merits
of Cancel’s state-law claims, which the District Court dismissed without prejudice after declining to exercise
supplemental jurisdiction.


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