Taylor v. 3B Enterprises, LLC et al

Filing 106

MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 9/30/2014; re 33 MOTION for Judgment on the Pleadings, 82 MOTION for Leave; The Court will enter a separate order consistent with this Memorandum Opinion. cc:counsel, Taylor pro se (TLB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

ANTOINETTE C. TAYLOR

PLAINTIFF

v.

CIVIL ACTION NO. 3:13-CV-259-S

3B ENTERPRISES, LLC, et al.

DEFENDANTS

MEMORANDUM OPINION
This matter is before the Court on motion of Defendants 3B Enterprises, LLC, et alia, for
judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Defendants argue the allegations of employment discrimination are implausible or the claims are
otherwise legally flawed and, therefore, fail to state a claim upon which relief can be granted.
(DNs 33, 46). In response to this motion, Plaintiff, Antoinette C. Taylor, pro se, filed four
motions for leave to amend the complaint. The Court ordered Plaintiff to restate all allegations in
one pleading, which is now before the Court in Plaintiff’s motion for leave to file a Fifth
Amended Complaint, pursuant to Rule 15(a)(2). (DN 82, 99). Defendants oppose the motion as
futile because, they argue, the seventy-four-page amended complaint does not cure the
deficiencies in the original complaint and because the additional claims and allegations also fail
to state a claim. (DN 95). In opposition to dismissal, Plaintiff argues all her claims are plausible
and satisfy the federal standard for notice pleading. (DN 40, 53, 56). For the reasons set forth
below, the Court will deny leave to amend, because all allegations fail to state a claim upon
which relief can be granted, and dismiss the action.
I.
Federal courts freely grant leave to amend a pleading “when justice so requires,” Fed. R.
Civ. P. 15(a)(2), to promote review of cases on their merits rather than on technicalities. Cooper

v. American Employers’ Ins. Co., 296 F.2d 303, 306 (6th Cir. 1961). Denial of leave to amend is,
nevertheless, appropriate if the amendment would be futile because it could not withstand a
motion to dismiss under Rule 12. Miller v. Champion Ent., Inc., 346 F.3d 660, 671, 690 (6th Cir.
2003).
When evaluating whether a complaint fails to state a claim upon which relief can be
granted, Fed. R. Civ. P. 12(b)(6), the Court must determine whether the complaint alleges
“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 Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is plausible if “the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id., (citing Twombly, 550 U.S. at 556). Although the complaint need not contain “detailed factual
allegations [under Rule 8(a)(2)], a plaintiff's obligation to provide the ‘grounds’ of his
‘entitlement to relief’ [under Conley v. Gibson, 355 U.S. 41 (1957)] requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citation omitted).
This “plausibility” standard, as articulated recently by the Supreme Court of the United
States in Twombly and Iqbal, applies to causation in discrimination claims. Keys v. Humana,
Inc., 684 F.3d 605, 610 (6th Cir. 2012)(citing HDC, LLC v. City of Ann Arbor, 675 F.3d 608,
612-13 (6th Cir. 2012) (affirming dismissal of Fair Housing Act claim where alleged facts did not
support plausible inference of intentional discrimination); and Pedreira v. Kentucky Baptist
Homes for Children, Inc., 579 F.3d 722, 728 (6th Cir. 2009) (affirming dismissal of religious
discrimination claim where plaintiff failed to allege facts plausibly linking her termination to
religious beliefs)). In Keys, the Sixth Circuit explained:

2

[A]lthough the … [c]omplaint need not present “detailed factual
allegations,” it must allege sufficient “factual content” from which
a court, informed by its “judicial experience and common sense,”
could “draw the reasonable inference,” Iqbal, 556 U.S. at 578, 679,
that [the employer] “discriminate[d] against [the plaintiff] with
respect to [her] compensation, terms, conditions, or privileges of
employment, because of [her] race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1)(emphasis added); see Barrett v.
Whirlpool Corp., 556 F.3d 502, 512 (6th Cir. 2009) (“[W]e review
§ 1981 claims under the same standard as Title VII claims.”).
According to the Supreme Court, “plausibility” occupies that wide
space between “possibility” and “probability.” Iqbal, 556 U.S. at
678. If a reasonable court can draw the necessary inference from
the factual material stated in the complaint, the plausibility
standard has been satisfied.
Id.
Federal courts hold pro se pleadings to a less stringent standard than formal pleadings
drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d
108, 110 (6th Cir. 1991); Burton v. Jones, 321 F.3d 569 (6th Cir. 2003). The district court better
serves “substantial justice” by examining the “thrust, not just the text,” of pro se litigants’
allegations. Burton, 321 F.3d 573-74.
II.
Plaintiff claims she was discharged from employment, on or about June 20, 2012, on the
basis of her age and race, being 49 years of age and an African-American.1 For nearly eight
years, Plaintiff worked as a caregiver and certified nurse assistant for Defendant, 3B Enterprises,
LLC.2 3B is an operator of a home health care service called, Home Instead Senior Care. In
addition to naming 3B as a defendant, Plaintiff names three individuals as defendants: 3B’s
principals/owners, Brent Beanblossom and Rebecca Beanblossom, as well as a senior manager,

1
2

Fifth Am. Compl. ¶¶ 70-73, 137, 150 (ECF No. 82).
Id. ¶¶ 3, 48.

3

Client Care Director, Kim Little.3 Plaintiff alleges she met her employer’s performance
expectations and received awards and recognition for her work.4 However, Plaintiff was
ultimately terminated, she alleges, “based on workplace inadmissible rumors, gossip, and
hearsay alleging that [Plaintiff] was sleeping on the job [on the night in question, June 16-17,
2012]… .”5 Plaintiff’s employer immediately relieved Plaintiff from her work assignment, via
telephone conversation with Ms. Beanblossom on June 19, 2012, and three days later, terminated
Plaintiff’s employment.6
Charge of Discrimination
Plaintiff filed a formal charge of discrimination with the Equal Employment Opportunity
Commission and Kentucky Commission on Human Rights, a copy of which is attached to
Defendants’ response memorandum.7 In it, Plaintiff complains of discriminatory discharge on
the basis of age and race, on or about June 25, 2012, against Home Instead Senior Care.
Disparate Treatment
Plaintiff asserts claims of disparate treatment as a result of her employer’s decisions to
depart from an incremental disciplinary policy afforded Caucasian employees and, second, to
terminate her employment. Plaintiff attaches to the amended complaint a letter, dated June 20,
2012, in which Human Resources Manager, Christine Reising, notifies Plaintiff of the
termination and describes: 1) a report from a fellow 3B employee, Ms. Lovett, concerning
Plaintiff’s care of a client, who resided in a senior facility, Mercy Sacred Heart Village, on the
night in question; 2) the communications between Plaintiff and Ms. Beanblossom, Ms. Little,
and others; 3) the employer’s investigation beginning June 18th; and 4) the employer’s findings

3

Id. ¶¶ 55, 72, 85, Exhibit A.
Id. ¶¶ 3-4, 95.
5
Id. ¶¶ 8, 138.
6
Id. ¶¶ 73, 138.
7
Exhibit A, Response to Mot. for Leave to File Fifth Am. Compl. (ECF No. 95).
4

4

and the stated grounds for discharge, including seven policy infractions.8 These policies are set
forth in Plaintiff’s employee handbook, which is also attached to the complaint.9 Also, Ms.
Reising’s letter contains a copy of Plaintiff’s letter, via facsimile, dated June 18, 2012, to a
Sacred Heart administrator, in which Plaintiff notifies them that she believed a Sacred Heart
caregiver had falsely reported her sleeping on the job in retaliation for Plaintiff’s report of June
17, 2012, (at 5:10 a.m.) against Sacred Heart staff for treating the patient in a “rough and fast”
manner.10
Following termination and in response to Ms. Reising’s letter, Plaintiff denied sleeping
on the job and other infractions; disputed any tension existed between herself and Sacred Heart
personnel; and vigorously disputed the content of the communications and particulars set forth in
the June 20th letter, all of which is, in an attachment to the complaint, set out in Plaintiff’s fivepage, single-spaced letter, dated July 6, 2012, to the Unemployment Insurance Appeals Branch.11
In her affidavit attached to the Fifth Amended Complaint, Plaintiff states she believes that
3B’s stated grounds for terminating her employment are pretext.12 Plaintiff further alleges that
before termination, she was denied any warning procedure, progressive disciplinary measures,
and appeal process; that after the investigation, she was denied any ability to refute hearsay she
was sleeping on the job; and that such denials constituted a departure from normal procedure

8

Plaintiff alleges, “The seven (7) false allegations … were sleeping on the job; sharing confidential [patient]
information …; abandoning her client; witnessing physical abuse to her client; failing to report [same] immediately;
writing threatening letters; witnessing her client in soiled briefs; behaving unprofessionally … .” Fifth Am. Comp. ¶
141. Plaintiff references Exhibit E to the Fifth Amended Complaint (ECF No. 82), and there is a cover sheet titled
Exhibit E, but no actual exhibit is attached. Instead, the exhibit is attached to the original complaint (ECF No. 1)
and is also titled Exhibit E.
9
Exhibit B, Fifth Am. Compl.
10
Exhibit E, supra note 8, at 2.
11
Exhibit F, original complaint (ECF No. 1). See also Fifth Am. Compl. ¶ 66, in which Plaintiff identifies those
persons who informed against her as Ms. Reising, Ms. Young, Ms. Stillwell, and Ms. Little, whereas Defendants
apparently contend a co-worker, Ms. Lovett, reported Plaintiff sleeping on the job in addition to other infractions.
12
Id., Pla’s Affidavit.

5

afforded to Caucasian employees.13 Plaintiff alleges she was abruptly discharged and again not
given an opportunity to submit a personal statement and give her side of the story, as a result of
Ms. Beanblossom’s wrongdoing and failure to stop Ms. Reising’s discriminatory conduct.14
Plaintiff alleges she was treated differently than the Caucasian caregivers and certified
nursing assistant and employees. Plaintiff’s alleges “on information and belief” that twenty-two
different “Comparators” violated various policies, and that Comparator No. 1, in particular, was
accused of sleeping on the job. Plaintiff describes these “comparators” as “unknown”
individuals, but contends none of them was terminated despite policy infractions.15
Plaintiff is unable to name any employee, who received leniency when alleged to have
been sleeping on shift, much less, alleged to have had additional performance deficiencies.16
Two fellow employees, whom Plaintiff identifies by name, are Ms. Reising (non-party) and Ms.
Little (the party-defendant). Each holds management level responsibilities.17 These individuals
provide examples, Plaintiff contends, of disparate treatment.18
Plaintiff does not dispute that she refused to discuss, in person, her employer’s
investigation of the Sacred Heart incident, as stated in Ms. Reising’s letter.19 Plaintiff does not

13

Id. ¶ 135.
Id. ¶ 63.
15
Id. ¶ 170 et seq.
16
Id. ¶ 19. Plaintiff alleges a Caucasian employee, Ms. Wilder, did not get suspended or discharged for violating the
company’s workplace policy of treating African-American employees disrespectfully, but provides no other
information.
17
Id. ¶¶ 58-60. Plaintiff alleges Ms. Beanblossom gave preferential treatment to Ms. Reising by twice promoting her
in a very short period despite Ms. Reising having “fewer qualifications” than Plaintiff based on unobtained
personnel records. Plaintiff alleges Ms. Reising violated work policy by being disrespectful or using offensive
language or being physically aggressive or inappropriate. Id. ¶ 65.
18
See id. ¶ 68. Plaintiff alleges Ms. Beanblossom treated Defendant Little more favorably than Plaintiff, as
evidenced by her letter, dated March 28, 2012, to Defendant Little concerning the night-time care of client Ms. A.A.
Plaintiff references this letter as Exhibit F, (ECF No. 82). The exhibit appears, however, in the record as Exhibit “C”
to the original complaint, (ECF No. 1).
19
Exhibit E, supra note 8.
14

6

dispute she complained to Sacred Heart about its staff.20 Likewise, Plaintiff cannot dispute her
authorship of the letter to Sacred Heart threatening legal action.21
Racial Harassment
In addition to the claims of disparate treatment, Plaintiff apparently asserts a claim of a
hostile work environment. In the complaint, Plaintiff alleges that “corporate executives alluded
that African American employees are huge issues, thieves, and troublemakers … [and] instructed
Caucasian managers, such as Ms. Little and Ms. Reising to ‘clean house’ by firing … AfricanAmerican employees on all shifts and threatened to terminate Caucasian managers if they did not
staff more … Caucasian … than African-American employees in their Caucasian clients’ homes
such as [Plaintiff’s] former client, A. Austin.”22
Plaintiff further alleges that Ms. Reising verbally attacked her over the telephone and
retaliated against her for making a complaint of discriminatory treatment against Ms. Reising to
Ms. Beanblossom in April 2011, and attaches a copy of Plaintiff’s letter to Ms. Beanblossom
dated April 1, 2011.23 In this letter, however, Plaintiff makes no complaint of discrimination but
merely addresses the role of new caregivers and the night-time care schedule. Plaintiff alleges
that despite this letter, allegedly advising Defendants that discrimination existed in Plaintiff’s
place of employment, Defendants tolerated the discrimination and failed to take measures to
prevent it.24

20

Exhibit F, supra note 18, at 4, in which Plaintiff contends she did not inform Defendants of her claim of
retaliation.
21
Exhibit F, supra note 8, at 3, in which Plaintiff asserts authorship of the “fax to Kim Thieneman” (ECF No. 1-7, at
4 of 11).
22
Fifth Am. Compl. ¶ 7.
23
Id. ¶ 9.
24
Id. ¶10.

7

Class Action/Additional Plaintiffs
Finally, Plaintiff alleges she represents a class of similarly situated former and current
African-American employees and seeks class certification for their claims. 25 In addition,
plaintiff attempts to allege disparate treatment on behalf of three “Jane Doe” plaintiffs who are
African-American women and former employees of 3B.26

III.
In the Fifth Amended Complaint, Plaintiff pleads federal claims of racial and age
discrimination in employment, constitutional torts, and civil rights violations under 42 U.S.C.
§ 1981. Plaintiff also asserts state law claims of wrongful discharge, contract and equity claims,
intentional infliction of emotional distress, and other state statutory claims.
Before addressing these individual claims, the Court will turn to the class allegations and
Jane Doe plaintiff allegations. A party proceeding pro se may not represent another party in any
action in federal court, absent admission to practice law. 28 U.S.C. § 1654; Shepherd v.
Wellman, 313 F.3d 963, 970-71 (6th Cir. 2002). Plaintiff is not a lawyer and may only prosecute
her own claims as a pro se party. Therefore, Plaintiff’s class action claims and claims on behalf
of three Jane Doe plaintiffs must be dismissed.27
The constitutional torts generally alleged in the amended complaint, likewise, must be
dismissed because they lack an essential element: state action. See Flagg Bros. v. Brooks, 436
U.S. 149, 155 (1978). Defendant 3B is not a government employer. Each Defendant is a private
party. Because no Defendant is a state actor, or agent of a government, the constitutional claims
must be dismissed.
25

Id. ¶¶ 11, 98-125, 126-135.
Id. ¶¶ 98-109.
27
Fifth Am. Compl., counts 1, 9, and 10. The individual claims in counts 9 and 10 are duplicative of the individual
claims in count 1.
26

8

The gravamen of Plaintiff’s complaint is a claim of employment discrimination, for both
age and race, under Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e et seq.; 42
U.S.C. § 1981; and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623. As a
preliminary matter, the Court will address the federal employment claims asserted against
individual Defendants Brent Beanblossom, Rebecca Beanblossom, and Kim Little. The claims
asserted against the individual Defendants are not legally viable. Even under a liberal
construction afforded to pro se litigants’ pleadings, Boag v.MacDougall, 454 U.S. 364, 365
(1982), the complaint contains no allegations to support a claim that any individual Defendant is
an employer or in any way liable under Title VII or the ADEA.28
In Wathen v. General Electric Co., 115 F.3d 400 (6th Cir. 1997), the Sixth Circuit held
that “an employee/supervisor, who does not otherwise qualify as an ‘employer’, cannot be held
individually liable under Title VII and similar statutory schemes,” including the ADEA. Id. at
404 n.6. Title VII defines an “employer” as “a person engaged in an industry affecting
commerce who has fifteen or more employees … .” 42 U.S.C. § 2000(e)(b). The ADEA
similarly defines an “employer” as “a person engaged in an industry affecting commerce who
has twenty or more employees … .” 29 U.S.C. § 630(b). In Wathen the Sixth Circuit stated,
“Congress did not intend individuals to face liability under the definition of ‘employer’ it
selected for Title VII.” Id. at 406; Griffin v. Finkbeiner, 689 F.3d 584, 600 (6th Cir. 2012). The

28

Defendants also argue Plaintiff has failed to exhaust her administrative remedies against the individual
Defendants. The Court agrees. As a general rule, Title VII claims may only be brought against parties named as
respondents in an EEOC charge. Romain v. Kurek, 836 F.2d 241, 245 (6th Cir. 1987) (dismissing defendant not
named in EEOC charge who lacked notice of the charge, nor held an identity of interest with party named in
charge); see also Vakharia v. Little Co. of Mary Hosp., 917 F.Supp. 1282, 1294 (N.D.Ill. 1996) (dismissing all
defendants but one named in the charge for failure to satisfy EEOC preconditions to suit); Secrist v. Burns Int’l
Security Services, 926 F.Supp. 823, 825 (E.D.Wis. 1996) (rejecting exception for pro se litigants to the EEOC
requirement to provide defendants notice and opportunity to participate in administrative procedures). Here, the
charge of discrimination fails to name any individual Defendant as a respondent, a prerequisite to filing a civil action
in federal court under § 2000e-5(e)(1), (f)(1).

9

same reasoning applies under the ADEA. The Court will therefore dismiss the Title VII and
ADEA claims of employment discrimination against the individual Defendants.
The Court will now turn to the underlying merit of the employment claims, i.e., the
ADEA, Title VII and § 1981, as pleaded in the Fifth Amended Complaint.29 Throughout the
lengthy pleading, there are simply no facts to support the conclusory allegations that Plaintiff
suffered employment discrimination on the basis of her age. Her pleading simply offers “labels
and conclusions” and a “formulaic recitation” of age discrimination, a pleading which is
insufficient under the Twombly and Iqbal standard. Because Plaintiff fails to allege any facts
linking her claims to her age, the ADEA claim is implausible on its face and must be dismissed.
Plaintiff’s race discrimination claims under Title VII chiefly involve allegations of
disparate treatment. Absent direct evidence, such cases are governed, generally, under principles
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Comm. Affairs
Bd. v. Burdine, 450 U.S. 248 (1981). See Keys v. Humana, 684 F.3d 605, 608-09 (6th Cir. 2012)
(explaining that a prima facie case under the McDonnell burden-shifting framework is an
evidentiary rather than pleading standard, Swierkiewicz v. Sorema, 534 U.S. 506 (2002)). In
short, the plaintiff must show that the prohibited trait (age or race) was a “motivating” or
“substantial” factor in the employer’s adverse employment decision. University of Texas
Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013). (explaining causation ruling in Price
Waterhouse v. Hopkins, 490 U.S. 22, 298 (1989)). Under § 1981, the plaintiff must show that
racial discrimination “drove the decision” of the defendant to block or impair some contractual
(employment) right of the plaintiff. Williams v. Richland County Children Servs., 489 F. App’x
848, 851 (6th Cir. 2012).
29

The Court does not construe the thrust of Plaintiff’s allegations as stating a formal claim of retaliation but
construes the allegations as expressing lay usage and meaning of the term “retaliate.” See infra note 23. The Court
agrees with the Defendants’ argument that any claim of retaliation is essentially a reiteration or component of the
racial discrimination claim.

10

Defendants argue Plaintiff’s race discrimination claims under Title VII and § 1981 are
devoid of factual basis and, therefore, are insufficient under the Twombly and Iqbal standard.
Defendants argue that despite the seventy-four pages of conclusory statements of mistreatment,
Plaintiff fails to identify anyone who was treated differently than she to support a circumstantial
case of racial discrimination. Defendants rely, in part, on Han v. University of Dayton, 541 F.
App’x. 622 (6th Cir. 2013), in which the Sixth Circuit recently concluded that a § 1981 and Title
VII complaint did not satisfy the plausibility standard under Twombly and Iqbal because the
plaintiff failed to identify anyone treated less favorably than employees similarly situated to the
plaintiff. In the same manner, Defendant argues, Plaintiff has failed to identify any Caucasian
employee who was treated more favorably under similar circumstances. The Court concludes
this argument is well taken.
The facts alleged in the amended complaint support only the remote and unspecific
possibility of intentional discrimination. Although the amended complaint is replete with
conclusory allegations, it omits the necessary factual content to support a plausible inference of
intentional discrimination. Beyond bare and conclusory assertions, Plaintiff alleges no facts from
which a reasonable person could infer how her race factored into the employer’s decisions, or
caused her to lose her job, as opposed to any other nondiscriminatory basis for decisions
regarding her employment. See Antoinette Taylor v. JPMorgan Chase Bank, slip op., 2014 WL
66513 (E.D.Ky. Jan. 8, 2014) (dismissing Plaintiff’s racial discrimination and numerous other
claims for failure to plead facts above the Twombly and Iqbal threshold). “[W]hether a complaint
states a plausible claim is context-specific, requiring the reviewing court to draw on its
experience and common sense.” Iqbal, 556 U.S. at 664. The facts alleged in the Fifth Amended
Complaint, accepted as true and reviewed in a light most favorable to Plaintiff, set out a context

11

in which any inference of intentional discrimination would be implausible and purely
speculative.
Plaintiff cannot rely on mere conclusory allegations that unnamed individuals were
treated more favorably. Plaintiff suggests that Ms. Reising was treated more favorably; however,
Ms. Reising was not similarly situated according to Plaintiff’s own allegations: Ms. Reising was
a senior executive, a manager, and according to Plaintiff violated one policy provision. Ms. Little
is a senior executive and likewise, offers no comparative value to Plaintiff’s case. Plaintiff has
not identified another caregiver by name accused of sleeping on shift, creating a rift with a
facility-client, or seven policy infractions. See Keys, 684 F.3d at 609 (holding sufficient under
Twombly and Iqbal because, inter alia, the plaintiff-manager identified key management
counterparts by name or company title). Plaintiff’s conclusory allegations of race discrimination
under Title VII and § 1981 are the type of “unadorned, the defendant-unlawfully-harmed-me
accusation,” Iqbal, 556 U.S. at 678, the Supreme Court sought to eliminate in Twombly and
Iqbal.
The same conclusion applies to Plaintiff’s claim of a racially-hostile work environment:
Plaintiff’s amended complaint contains no factual content to support a plausible inference of a
racially hostile work environment. The allegations of harassment, accepted as true and reviewed
in a light most favorable to Plaintiff, do not satisfy the parameters set forth in Harris v. Forklift
Sys., Inc., 510 U.S. 14, 21 (1993); see also Nat’l Railroad Passenger Corp. v. Morgan, 536 U.S.
101 (2002) (“In determining whether an actionable hostile work environment claim exists, we
look to all the circumstances, including the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” (internal quotations omitted)).

12

Defendants further argue, as an independent basis for dismissal, that Plaintiff did not
exhaust her administrative remedies as to this claim. The Court agrees. Plaintiff’s charge of
discrimination charges discriminatory discharge and mentions no other allegations that might
suggest a hostile work environment. The rule of exhaustion, as stated in this judicial circuit,
requires that if the facts alleged in the charged claim would prompt the EEOC to investigate a
different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim. Davis
v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998); see e.g., Brown v.
City of Cleveland, 294 F. App’x 226 (6th Cir. 2008) (dismissing uncharged harassment claim for
failure to exhaust because the facts did not grow out of the claim of discriminatory denial of
promotion). Because there are no allegations in Plaintiff’s charge that she was subjected to racial
harassment, nor any facts to suggest the EEOC investigated any claim other than discriminatory
discharge, the racial harassment claim must be dismissed for failure to exhaust the available
administrative remedies.
In summary, the Fifth Amended Complaint fatally relies on conclusory allegations.
Federal courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 556. After discarding the legal conclusions, the question
becomes whether the actual remaining facts state a plausible claim for relief. In the Eastern
District of Kentucky, the district court reviewed pleadings drafted by Plaintiff, proceeding pro
se, albeit in an unrelated matter alleging discrimination. See Taylor v. JPMorgan Chase Bank,
slip op., 2014 WL 66513 (E.D.Ky. Jan. 8, 2014). There, the district court found Plaintiff’s
pleadings lacked the requisite factual content to satisfy the Twombly and Iqbal standard. Here,
the Fifth Amended Complaint states “legal conclusions that are only masquerading as facts and
need not be accepted.” Id. Despite five amendments to the complaint, Plaintiff’s allegations fall
far short of asserting facts establishing the plausibility of her claims.
13

Because the Fifth Amended Complaint fails to state any federal claims on which relief
can be granted, the Court declines to exercise supplemental jurisdiction over any state law claims
contained in the Fifth Amended Complaint, pursuant to 28 U.S.C. § 1367(c).
The Court will enter a separate order consistent with this Memorandum Opinion.
DATE:

September 30, 2014

C al R Smpo I , ei J d e
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Copies to:
Antoinette C. Taylor, pro se plaintiff
Counsel of Record