Gueye v. GAP INC. et al

Filing 34

MEMORANDUM OPINION & ORDER: It is ordered that 1) Corvel Corporation's motion to dismiss 11 is GRANTED; 2) Safety National Casualty Corporation's motion to dismiss 20 be and is hereby GRANTED; 3) Corvel Corporation and Safety National Casualty Corporation be and are hereby DISMISSED as parties. Signed by Judge William O. Bertelsman on 01/14/2014.(TED)cc: COR. Amar Gueye via U.S. Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON

CIVIL ACTION NO. 2013-144
AMAR GUEYE

PLAINTIFF

VS.

MEMORANDUM OPINION AND ORDER

GAP, INC., ET AL.
DEFENDANTS
__________________________________________________________
This is an action by Amar Gueye (“Plaintiff”), against Gap,
Inc., Corvel Corp., and Safety National Casualty Corp., under
Title VII for age, race, color, and national origin
discrimination.
This matter is before the Court on Corvel Corp.’s motion to
dismiss, (Doc. 11), and Safety National Casualty Corp.’s motion
to dismiss, (Doc. 20).
Having reviewed the parties’ briefs, the Court
concludes that oral argument is unnecessary to the resolution of
these motions.

The Court therefore issues the following

Memorandum Opinion and Order.
FACTS
Plaintiff alleges he worked for GAP, INC., and was
terminated on November 11, 2012.

(Doc. 1 pp. 2-3).

Plaintiff

notified his boss Kelly Manning that his back, hands, chest, and
muscles were in pain after lifting between 500 and 2000 boxes.

Page 1 of 4

(Doc. 1 p. 2).

Plaintiff was terminated the same day and was

told that business was slow.

(Doc. 1 p. 3).

However, Plaintiff

alleges that his facility was hiring warehouse workers (the
department Plaintiff worked for), and that he was scheduled to
work overtime for the rest of the week.

(Doc. 1 p. 2-3).

Plaintiff alleges that after he filed his worker’s
compensation claim, Corvel Corp. and Safety National Casualty
Corp. (“Defendants”), submitted a false injury date and other
misleading information.

The Defendants submitted this false and

misleading information so they could reject Plaintiff’s worker’s
compensation claim.

Plaintiff’s worker’s compensation claim was

voluntarily withdrawn from the Administrative Law Judge by the
Plaintiff and never refiled.

(Doc. 20-2).
ANALYSIS

A. Plaintiff fails to state a proper Title VII claim
against Defendants (Corvel and Safety National).
Plaintiff is acting pro se and as such, the Court liberally
construes Plaintiff’s complaint and filings.

Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to
be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers[.]”).

Cf. FED. R. CIV.

P. 8(e).
However, Plaintiff fails to allege an employment

Page 2 of 4

relationship between himself and Corvel Corp. or Safety National
Casualty Corp.

This failure is fatal to his Title VII claim.

Further, Plaintiff alleges no discriminatory conduct by these
Defendants, which is also fatal to his Title VII claim.
Plaintiff also appears, in his reply briefs, to allege a
worker’s compensation claim.

However, any such claim fails

because Plaintiff did not exhaust his administrative remedies as
required by Kentucky law.

Popplewell's Alligator Dock No. 1,

Inc. v. Revenue Cabinet, 133 S.W.3d 456, 471 (Ky. 2004)
(“Usually, a party is required to exhaust available
administrative remedies before seeking judicial relief.”); KRS §
13B.140(2) (“A party may file a petition for judicial review
only after the party has exhausted all administrative remedies
available within the agency whose action is being challenged,
and within any other agency authorized to exercise
administrative review.”).

Because Plaintiff failed to exhaust

his administrative remedies, he cannot properly state a worker’s
compensation claim.

(Doc. 20-2) (showing Plaintiff voluntarily

withdrew his worker’s compensation claim).
In Plaintiff’s reply memorandum, Plaintiff appears to raise
a Racketeer Influenced and Corrupt Organizations Act (RICO)
claim against Defendants for allegedly falsifying facts in
Plaintiff’s worker’s compensation claim.

However, such a claim

cannot be maintained in the Sixth Circuit.
Page 3 of 4

Jackson v. Sedgwick

Claims Mgmt. Servs., Inc., 731 F.3d 556, 566 (6th Cir. 2013)
(“Accordingly, racketeering activity leading to a loss or
diminution of benefits the plaintiff expects to receive under a
workers' compensation scheme does not constitute an injury to
“business or property” under RICO.”).
Thus, Plaintiff’s Title VII claim fails to allege
Defendants were employers or took discriminatory action,
Plaintiff’s worker’s compensation claim fails to allege an
exhaustion of administrative remedies, and Plaintiff’s RICO
claim is not a claim upon which relief can be granted.
Therefore, having reviewed this matter, and the Court being
otherwise sufficiently advised,
IT IS ORDERED (1) that Corvel Corporation’s motion to
dismiss (Doc. 11) be, and is hereby, GRANTED; (2) that Safety
National Casualty Corporation’s motion to dismiss (Doc. 20) be,
and is hereby, GRANTED; and (3) Corvel Corporation and Safety
National Casualty Corporation be, and are hereby, DISMISSED as
parties.

This 14th day of January, 2014.

Page 4 of 4