United States Court of Appeals

For the Eighth Circuit

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No. 20-1732

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Arthur Carson

lllllllllllllllllllllPlaintiff - Appellant

v.

Roger Lacy, doing business as D&B Janitorial Services; Laidlaw & Lacy Inc.;

First Advantage Background Services Corporation, (Originally named as

"Corporation Services Co."); D&B Janitorial Services; Anita Cotton

lllllllllllllllllllllDefendants - Appellees

 ____________

Appeal from United States District Court 

for the Eastern District of Arkansas - Central

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 Submitted: October 29, 2020 

Filed: April 19, 2021

[Unpublished]

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Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.

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PER CURIAM.

Arthur Carson appeals after the district court dismissed his pro se employment

discrimination action for failure to state a claim. Carson’s complaint named, inter

alia, D&B Janitorial Services (D&B) and Anita Cotton, a D&B employee who
processed job applications.1

 He claimed that defendants discriminated against him,

in violation of Title VII and the Arkansas Civil Rights Act (ACRA). Liberally

construing his complaint, he alleged that, due to D&B’s policy of not hiring, or

limiting the hiring of, applicants with felony convictions, he was essentially

disqualified from employment on the basis of his race, because statistical data

indicated that, in Arkansas, the rate of incarceration among blacks was higher than

among white individuals. The district court dismissed the case, concluding that

Carson failed to state a claim under either Title VII or the ACRA. The court reasoned

that Cotton could not be held individually liable under Title VII; that Carson’s Title

VII claim against D&B failed, because he did not allege D&B had disproportionately

fewer black custodians as a result of using felony background checks; and that his

ACRA claims failed under the same analysis applied to the Title VII claims.

Upon de novo review, we conclude that Carson’s claims against Cotton were

properly dismissed, because Cotton could not be held individually liable under Title

VII or the ACRA. See Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (en

banc) (per curiam) (standard of review); see also Spencer v. Ripley Cnty. State Bank,

123 F.3d 690, 691-92 (8th Cir. 1997) (per curiam) (individual employees are not

personally liable under Title VII); Calaway v. Practice Mgmt. Servs., 2010 WL

4524659, at *3 (Ark. Nov. 11, 2010) (unpublished) (explaining ACRA imposes

liability only for discriminatory acts committed by employer).

We conclude, however, that Carson stated a Title VII claim against D&B

because he plausibly alleged that D&B’s policy of not hiring, or limiting the hiring

of, applicants with certain felony convictions had a disparate impact on black

1Carson brought claims against other defendants, which were dismissed. 

Because his opening brief challenges only the dismissal of his claims against D&B

and Cotton, we conclude that Carson has waived any issues related to the dismissal

of his claims against other defendants. See Montin v. Moore, 846 F.3d 289, 295 (8th

Cir. 2017) (claims not raised in opening brief are waived).

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applicants, in that it excluded them from the opportunity of employment at a higher

rate than white applicants. See Lewis v. City of Chicago, 560 U.S. 205, 213 (2010)

(“[T]he essential ingredients of a disparate impact claim” under Title VII are that the

“employer uses an employment practice that causes a disparate impact on one of the

enumerated bases”) (cleaned up) (citing 42 U.S.C. § 2000e-2(k)(1)(A)(i));

Connecticut v. Teal, 457 U.S. 440, 450 (1982) (explaining that, in considering Title

VII disparate-impact claims, Supreme Court has focused on, inter alia, employment

requirements that create discriminatory bar to opportunities; Title VII has never been

read to require focus instead be placed on overall number of applicants in protected

class actually hired); see also Chaidez v. Ford Motor Co., 937 F.3d 998, 1006-07 (7th

Cir. 2019) (to plausibly state disparate-impact claim under Title VII, plaintiff must

demonstrate defendant had established employment practice that caused disparate

impact on basis of, inter alia, race; at pleading stage, basic allegations of statistical

methods or comparisons suffice to support claim).

We further conclude that, to the extent Carson stated a Title VII claim against

D&B, he also stated an ACRA claim as to D&B. See Barber v. C1 Truck Driver

Training, LLC, 656 F.3d 782, 792 (8th Cir. 2011) (ACRA discrimination claim

properly analyzed under Title VII framework); cf. Ark. Code Ann.

§ 16-123-107(c)(1)(A) (employee who is injured by employment discrimination shall

have civil action against employer).

Accordingly, we reverse the dismissal of Carson’s Title VII and ACRA claims

against D&B, we affirm the judgment in all other respects, and we remand the case

to the district court for further proceedings.

COLLOTON, Circuit Judge, concurring in part and dissenting in part.

Plaintiff Arthur Carson alleged, among other claims, that D&B Janitorial

Services violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. Carson

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challenged D&B’s alleged policy of declining to hire convicted felons as custodians. 

He alleged that this hiring practice has an unlawful “disparate impact” on AfricanAmericans. The district court dismissed the complaint on the ground that Carson

failed to state a claim, and I would affirm the judgment.

Under Title VII, as relevant here, an unlawful disparate impact is established

“only if . . . a complaining party demonstrates that a respondent uses a particular

employment practice that causes a disparate impact on the basis of race . . . and the

respondent fails to demonstrate that the challenged practice is job related for the

position in question and consistent with business necessity.” 42 U.S.C. § 2000e2(k)(1)(A)(i). To meet his burden under this provision, Carson must show (1) an

identifiable employment policy or practice, (2) a disparity in employment

opportunities based on race, and (3) a causal connection between the first two. The

district court dismissed Carson’s disparate-impact claim on the ground that he did not

adequately allege that D&B’s hiring practice had a disparate impact on AfricanAmericans who sought employment as custodians.

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) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “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. “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id.

The majority reverses the district court’s ruling with one sentence of

explanation, saying that Carson plausibly alleged that D&B’s hiring practice “had a

disparate impact on black applicants, in that it excluded them from the opportunity

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of employment at a higher rate than white applicants.” Ante, at 2-3. The opinion

provides no further rationale, and the conclusion is incorrect.

The district court properly examined whether Carson plausibly alleged that

D&B’s asserted policy of excluding convicted felons from custodial positions

resulted in a disparate impact on black applicants. In a disparate-impact case under

Title VII, as with a disparate-impact case under the Fair Housing Act, courts must

“examine with care whether a plaintiff has made out a prima facie case of disparate

impact,” as “prompt resolution of these cases is important.” Ellis v. City of

Minneapolis, 860 F.3d 1106, 1111 (8th Cir. 2017) (quoting Texas Dep’t of Hous. and

Cmty. Affs. v. Inclusive Communities Project, Inc., 576 U.S. 519, 543 (2015)). The

prima facie case for a disparate-impact claim is not merely an evidentiary standard;

it embodies the essential elements of a claim under the statute. See Adams v. City of

Indianapolis, 742 F.3d 720, 728, 733 (7th Cir. 2014). “A plaintiff who fails to allege

facts at the pleading stage . . . demonstrating a causal connection between a

defendant’s policy and a disparity cannot make out a prima facie case of disparate

impact.” Ellis, 860 F.3d at 1111 (brackets omitted) (quoting Inclusive Communities,

576 U.S. at 543). 

Carson’s complaint does not include sufficient factual content to support a

reasonable inference that D&B is liable for unlawful discrimination. Carson alleges

that a ban on employing convicted felons has a disparate impact on AfricanAmericans who seek employment as custodians at D&B. In support, he cites

statistics from 2007 showing that “the rate of incarceration” in Arkansas was greater

for African-Americans than for Hispanics and whites. But rate of incarceration per

racial group does not show the rate of felony convictions per racial group, for some

incarcerated persons are not felons, and some felons are not incarcerated. The

complaint also does not allege that the “rate of incarceration” accounts for varying

lengths of incarceration for different felons: if felons of one race tend to be

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incarcerated for longer terms than felons of another race, then the “rate of

incarceration” would not reflect the rate of felony convictions for each race.

Nor does the complaint allege why the incarceration rate for the general

population in Arkansas in 2007 is a sound proxy for felon status among the custodian

applicant pool at D&B in 2020. The incarceration statistics are outdated by more

than a decade. Even if the data were current, incarcerated persons presumably do not

apply for custodial jobs at D&B, and the complaint includes no allegation about the

numbers of non-incarcerated persons of each race in D&B’s locality who have been

convicted of a felony. And even if we were to assume that the “rate of incarceration”

by race in 2007 reflects the number of felony convictions by race in the general

population of non-incarcerated persons in 2020, a complaint may not “simply

presume that population-level statistics will accurately describe subgroups of that

population.” Mandala v. NTT Data, Inc., 975 F.3d 202, 211 (2d Cir. 2020). The

complaint does not allege that the racial composition of D&B’s applicant pool mirrors

the racial composition of the general population. 

For these reasons, Carson’s complaint is insufficient to state a disparate-impact

claim against D&B Janitorial Services under Title VII and the parallel provision of

the Arkansas Civil Rights Act. I would affirm the judgment in its entirety.

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