FREEMAN v. HOTEL EQUITIES INC

Filing 5

ORDER DENYING 3 Motion to Appoint Counsel and GRANTING 2 Motion for Leave to Proceed in forma pauperis. If the Plaintiff wishes to assert a hostile work environment claim in addition to his retaliation claim, the Plaintiff is ORDERED to recast his complaint within 30 days of the entry of this Order to sufficiently allege such a claim. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 7/28/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MARCUS M. FREEMAN,
Plaintiff,
v.
HOTEL EQUITIES INC.,
Defendant.

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CIVIL ACTION NO. 5:16-CV-250 (MTT)

ORDER
Pro se Plaintiff Marcus M. Freeman has moved to proceed in forma pauperis.
(Doc. 2) and for the appointment of counsel (Doc. 3). Pursuant to 28 U.S.C. § 1915(a),
a district court must determine whether the statements contained in a financial affidavit
satisfy the requirement of poverty. Martinez v. Kristi Cleaners, Inc., 364 F.3d 1305,
1307 (11th Cir. 2004). “[A]n affidavit will be held sufficient if it represents that the
litigant, because of his poverty, is unable to pay for the court fees and costs, and to
support and provide necessities for himself and his dependents.” Id. Based on the
Plaintiff’s application, it is apparent he is unable to pay court fees and costs because of
his poverty. Therefore, the Plaintiff’s motion to proceed in forma pauperis is
GRANTED.
Because the Plaintiff is proceeding in forma pauperis, the Court is required to
dismiss the case if it: (1) is frivolous or malicious; (2) fails to state a claim on which relief
may be granted; or (3) seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B). The Plaintiff appears to allege the Defendant
retaliated against him because of his age, resulting in his termination, in violation of the

Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C § 621 et seq. (Doc.
1 at 4). He also appears to have asserted a hostile work environment claim under the
ADEA.
Specifically, the Plaintiff alleges the Defendant “use[d] [his] age against [him] and
also the use of retaliation method.” (Doc. 1 at 5). He then directs the Court to his
EEOC Charge of Discrimination in which he states:
Hotel Equities subjected me to harassment and treated me in a disparate
and discriminatory manner due to my age. Hotel Equities allowed my coworkers to harass me, including, but not limited to, allowing employees to
call me “Grand-Daddy” and other names regarding my age. In June of
2015, I made reports of the hostile environment, including the threats of
physical violence to HR Representative, Amy. In retaliation for
complaints, false accusations were levied against me[,] and Hotel Equities
terminated me later that same month.
(Doc. 1-1 at 1).
To establish a prima facie case of retaliation, a plaintiff must allege that (1) he
“engaged in statutorily protected expression”; (2) he “suffered an adverse employment
action; and (3) the adverse action was causally related to the protected expression.”
Weeks v. Hardin Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). The Plaintiff has
sufficiently alleged that he engaged in protected expression by filing complaints about
workplace harassment, that he suffered an adverse employment action by being
terminated, and that there was a causal relationship between his termination and his
filing complaints. See Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 n.2
(11th Cir. 2002) (concluding that protected activity includes voiced complaints to
superiors and the use of employers’ grievance procedures to lodge complaints).
With respect to any hostile work environment claim, the Plaintiff must allege that:

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(1) he belongs to a protected group; (2) he was subjected to unwelcome
harassment; (3) the harassment was based on his membership in the
protected group; (4) it was severe or pervasive enough to alter the terms
and conditions of employment and create a hostile or abusive working
environment; and (5) the employer is responsible for that environment
under a theory of either vicarious or direct liability.
Jones v .UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (internal
quotation marks omitted); Dexter v. Amedisys Home Health, Inc. of Ala., 965 F.
Supp. 2d 1280, 1289 (N.D. Ala. 2013). As to the fourth element, the Court
considers the totality of the circumstances, including “(1) the frequency of the
conduct; (2) the severity of the conduct; (3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance; and (4) whether the
conduct unreasonably interferes with the employee's job performance.” Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002).
The Plaintiff simply alleges that his employer permitted coworkers to
harass him by, “including, but not limited to, allowing [them] to call [him] ‘Grand
Daddy’ and other names regarding [his] age.” (Doc. 1-1 at 1). This allegation is
too vague and insufficient to allege harassment that was severe and pervasive. If
the Plaintiff wishes to assert a hostile work environment claim in addition to his
retaliation claim, the Plaintiff is ORDERED to recast his complaint within 30 days
of the entry of this Order to sufficiently allege such a claim.1 The Plaintiff may
also allege additional details regarding his retaliation claim in his recast complaint,

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The Court acknowledges the Eleventh Circuit has yet to officially decide “whether the hostile
environment doctrine developed in Title VII actions applies in an ADEA action.” U.S. EEOC v. Yardley,
117 F.3d 1244, 1249 n.7 (11th Cir. 1997); see also Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1245
n.80 (11th Cir. 2001) (“[a]ssuming hostile environment claims are cognizable under ADEA” and
concluding the “[t]he conduct Plaintiffs allege was not sufficiently severe or pervasive as to constitute a
hostile environment”). The Court will resolve that issue at a later time should the Plaintiff sufficiently
recast his claim.
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even though the allegations are minimally adequate for purposes of screening to
go forward.
With respect to the Plaintiff’s motion to appoint counsel, the Court has
carefully considered the Plaintiff’s request and finds that appointment of counsel is
unwarranted because the issues are neither factually nor legally complex. See
Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985) (“Appointment of counsel in
a civil case is not a constitutional right.”). Accordingly, the Plaintiff’s motion is
DENIED. (Doc. 3).
SO ORDERED, this the 28th day of July, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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