Duvall v. Lewis et al

Filing 15

OPINION AND ORDER: GRANTING 12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants Margie Comacho, Rodney Lewis and ORDERING this cause DISMISSED. The court affords Mr. Duvall until 6/9/2015 within which to file an amended complaint if he wishes to do so. Signed by Judge Robert L Miller, Jr on 5/26/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ELBERT DUVALL,
PLAINTIFF,
VS.

RODNEY LEWIS, PRESIDENT LOCAL
1014, AND MARGIE COMACHO,
DEFENDANTS.

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CAUSE NO. 2:14-CV-350-RLM-PRC

OPINION and ORDER
Defendants Rodney Lewis and Margie Comacho filed a motion to dismiss
plaintiff Elbert Duvall’s pro se complaint. The court notified Mr. Duvall of his
obligation to respond to the motion. He hasn’t responded, and the time to do so
has passed.
In his complaint, Mr. Duvall says that he worked for the Local 1014 of
the U.S. Steelworkers Union for thirty years. Mr. Duvall claims he was injured
on the job in 2014, but was denied worker’s compensation for that injury. Less
than a week later, he says the Union’s president, Mr. Lewis, terminated his
employment for “not cleaning the building and leaving it nasty, and also for
allegedly making threats to him.” Mr. Duvall says these accusations are false.
Mr. Duvall claims his replacement is 22 years old and Hispanic and within the
past year the Union has replaced all of the African American employees with
Hispanic employees. Mr. Duvall alleges that he was discriminated against
based on his race – African American – and age – 66. On a form employment

discrimination complaint, Mr. Duvall alleges violations of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5, the Age Discrimination
in Employment Act, 29 U.S.C. § 623, and his equal rights under the law, 42
U.S.C. § 1981. He attached a copy of his Charge of Discrimination (received by
the Indianapolis EEOC office on May 6, 2014) to the complaint and indicated
that he received a right to sue notice from the EEOC on July 28, 2014.
The defendants don’t specify the basis for the motion to dismiss, but
both contend the complaint doesn’t state a claim upon which relief may be
granted, which is grounds for dismissal under Federal Rule of Civil Procedure
12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, the court
construes the complaint in the light most favorable to the nonmoving party,
accepts all well-pleaded facts to be true, and draws all inferences in the
nonmoving party’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146
(7th Cir. 2010). To survive a dismissal motion, a “complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Mindful of Mr. Duvall’s pro se status, the court reads his complaint liberally.
Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998). The court will “give a
pro se plaintiff a break when, although he stumbles on a technicality, his
pleading is otherwise understandable.” Id. Still, the court is under “no
obligation to act as counsel or paralegal to pro se litigants.” Myles v. United

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States, 416 F.3d 551, 552-553 (7th Cir. 2005) (quoting Pliler v. Ford, 542 U.S.
225, 231 (2004)).
DEFENDANT MARGIE COMACHO
Ms. Comacho argues that neither the complaint nor the EEOC charge
contains an allegation that she did anything illegal or improper. Indeed, the
only mention of Ms. Comacho in either document is her name in the caption of
the complaint. The minimum requirements for pleading a claim for relief are
found in Federal Rule of Civil Procedure 8, which requires “a short and plain
statement of the claim showing that the pleader is entitled to relief” and each
allegation to be “simple, concise, and direct.” FED. R. CIV. P. 8(a)(2), (d)(1). Mr.
Duvall’s complaint doesn’t contain any facts that relate to Ms. Comacho and,
consequently, doesn’t state a claim against her.
DEFENDANT RODNEY LEWIS
Mr. Lewis first addresses the Title VII and ADEA claims. He argues a
person who isn’t an employer can’t be held liable for discrimination under
either statute. The court agrees. See Cianci v. Pettibone Corp., 152 F.3d 723,
729 (7th Cir. 1998) (“[I]ndividual supervisors who are not otherwise employers
cannot be sued under Title VII or the ADEA.”) (citing Matthews v. Rollins Hudig
Hall Co., 72 F.3d 50, 52 n.2 (7th Cir. 1995) (ADEA); Williams v. Banning, 72
F.3d 552, 555 (7th Cir. 1995) (Title VII)). Mr. Duvall’s EEOC charge says he
was employed by U.S. Steelworkers Union Local 1014. Mr. Lewis wasn’t Mr.
Duvall’s employer and so can’t be held liable under Title VII or the ADEA. As a
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result, Mr. Duvall hasn’t pleaded a plausible Title VII or ADEA claim against
Mr. Lewis.
Next, Mr. Lewis addresses Mr. Duvall’s claim under 42 U.S.C. § 1981.
Mr. Lewis argues Mr. Duvall didn’t allege that Mr. Lewis made any decisions
based on race. “[S]ection 1981 affords to ‘[a]ll persons . . . the same right . . . to
make and enforce contracts . . . as is enjoyed by white citizens’” and “some
showing of differential treatment on the basis of race is a necessary element of
a claim under that statute.” Rush v. McDonald’s Corp., 966 F.2d 1104, 1119
(7th Cir. 1992) (quoting 42 U.S.C. § 1981). In the complaint, Mr. Duvall alleges
facts that relate to age discrimination and says, “Rodney Lewis discriminate[d]
against me due to my age.” An EEOC charge isn’t required for a § 1981 claim,
Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 530 (7th Cir. 2003), but to
generously construe Mr. Duvall’s pleading, the court also reviewed the
allegations contained in Mr. Duvall’s EEOC charge that was attached to the
complaint. In the EEOC charge, he stated, “On April 23, 2014, I was
terminated by Mr. Lewis allegedly for not cleaning the building and leaving it
nasty, and also for allegedly making threats to him.” Mr. Duvall’s complaint,
with or without the EEOC charge allegations, doesn’t allege that Mr. Lewis
treated employees differently based on their race – an essential element of a §
1981 claim. Mr. Duvall’s only specific allegation regarding race was that,
“Within the last year, Respondent Employer has let go all African American
employees and replaced them with all Hispanic employees.” His employer,
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however, wasn’t named in the complaint. Mr. Duvall doesn’t state a plausible §
1981 claim against Mr. Lewis.
CONCLUSION
The complaint doesn’t state claims upon which relief may be granted
against either defendant. Accordingly, the court GRANTS defendants’ motion to
dismiss (Doc. No. 12) and ORDERS this cause DISMISSED. The court affords
Mr. Duvall until June 9, 2015 within which to file an amended complaint if he
wishes to do so.
SO ORDERED.
ENTERED: May 26, 2015

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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