Downer v. Rite Aid Corporation
Filing
19
ORDER Adopting Report and Recommendation Granting 10 Motion to Dismiss filed by Rite Aid Corporation. Signed by District Judge David M. Lawson. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHERITA DOWNER,
Plaintiff,
Case No. 10-14974
Honorable David M. Lawson
Magistrate Judge Laurie J. Michelson
v.
RITE AID CORPORATION,
Defendant.
___________________________________/
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
GRANTING DEFENDANT’S MOTION TO DISMISS, AND DISMISSING CASE
The matter is before the Court on objections to a report filed by Magistrate Judge Laurie J.
Michelson recommending that the defendant’s motion to dismiss be granted. The plaintiff filed a
pro se complaint against defendant Rite Aid Corporation alleging that she was (1) discriminated
against based on her age, race, and disability when her employment was terminated by the defendant
and (2) the defendant retaliated against her by stating on her employment history report that she was
terminated for cash register fraud. The Court entered an order referring the case to the magistrate
judge to conduct all pretrial matters. Thereafter, the defendant filed its motion to dismiss, arguing
that the plaintiff’s claims are barred by the statute of limitations.
The magistrate judge
recommended that the Court grant the motion and dismiss the case. The plaintiff timely filed an
objection and the matter is before the Court for de novo review. The Court finds that the magistrate
judge’s conclusions are correct. Therefore, the Court will overrule the objections, adopt the report
and recommendation, grant the defendant’s motion to dismiss, and dismiss the complaint.
I.
According to the complaint and its attachments, plaintiff Sherita Downer was hired on
January 15, 1998 by Rite Aid Corporation as a cashier at the Rite Aid Pharmacy in Hamtramck,
Michigan. At some point, for unknown reasons, the plaintiff left her employment with Rite Aid but
was rehired on March 15, 1999. Some time thereafter, the plaintiff was promoted from cashier to
shift supervisor, although it is unclear when the promotion occurred.
On April 8, 2006, the plaintiff injured her back while at work. As a result, she says her
activities were restricted, including limitations on lifting, pushing, pulling, and bending. The
plaintiff alleges that Rite Aid denied the plaintiff time off to go to physical therapy and doctor
appointments. As a result, the plaintiff states that she was “dismissed by [her doctor] for missing
doctor appointments.” Compl. at 8.
The defendant terminated the plaintiff’s employment for misuse of her employee discount
privileges on April 15, 2007. On April 20, 2007, the plaintiff filed a claim for unemployment
benefits, which the defendant contested. On August 24, 2007, a state administrative law judge
upheld the plaintiff’s unemployment benefits because Rite Aid “failed to carry its burden of proof
to establish that claimant’s actions with respect to her discount privileges were in deliberate and
wanton disregard of the interests of the employer so as to amount to misconduct.” Compl., Ex. 2,
ALJ Decision at 2-3. In her complaint in this Court, the plaintiff alleges that her termination was
due to illegal discrimination based on age, race, and disability. However, during the unemployment
proceedings the plaintiff did not claim that she was terminated because of her age, race, or disability.
On October 18, 2007, the defendant mailed a letter to the plaintiff demanding payment for
the amount of the cash register fraud. The letter stated that “you failed to keep your commitment
to Rite Aid Corporation to make monthly payments until such time as your indebtedness is paid in
full . . . . If, by 11/17/2007, we have not received a recent payment towards your balance of
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$188.61, we will exercise our legal options.” Compl. Ex. 4, Repayment Letter at 1. The plaintiff
alleges that misconduct charges are false. Neither party provided any additional documentation to
suggest that the plaintiff agreed to make monthly payments to the defendant.
In April 2010, the plaintiff applied for employment with CVS Pharmacy. As part of the
application process, CVS requested a background check from LexisNexis. LexisNexis informed
CVS that the plaintiff’s history included an incident of cash register fraud while she was employed
at Rite Aid. CVS provided the plaintiff with a copy of the report and sent a letter to the plaintiff
informing her that CVS would not offer her employment.
The plaintiff took no action on her discrimination claims until August 5, 2010, when she filed
a Charge of Discrimination with the EEOC. The plaintiff alleged that she was terminated based on
her race and disability, and the defendant retaliated against her by failing to clear her employment
record of the misuse of her employee discount. Although the plaintiff alleged that she was
terminated based on her age in her complaint, she did not contend in her Charge of Discrimination
that she was terminated based on her age. The plaintiff argues that the discriminatory acts occurred
from April 15, 2007, the day of her termination, to April 6, 2010, the day she was denied
employment with CVS. The plaintiff does not allege that she was subjected to discrimination or
retaliation prior to her termination. The EEOC issued a Right to Sue letter on September 21, 2010.
Compl. at 10.
The plaintiff filed her complaint on December 15, 2010. On February 1, 2011, the defendant
filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Magistrate Judge
Michelson issued a report recommending that the Court grant the defendant’s motion to dismiss on
the grounds that (1) the discrimination claim is barred by the statute of limitations and (2) the
retaliation claim is not viable because the plaintiff did not engage in any protected activities under
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Title VII or the Elliott-Larsen Civil Rights Act until after the alleged retaliation occurred. The
plaintiff filed timely objections to the Report and Recommendation contending that she was not
aware of the statute of limitations, the defendant lied in its motion to dismiss, and the magistrate
judge was biased.
II.
Objections to a report and recommendation are reviewed de novo. 28 U.S.C. § 636(b)(1).
The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection
requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be
clear enough to enable the district court to discern those issues that are dispositive and contentious.”
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “‘[O]bjections disput[ing] the correctness of the
magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to be] in error’ are
too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380).
“[T]he failure to file specific objections to a magistrate’s report constitutes a waiver of those
objections,” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004), and releases the Court from its
duty to independently review the motion, see Thomas v. Arn, 474 U.S. 140, 149 (1985) (holding that
the failure to object to the magistrate judge’s report releases the Court from its duty to independently
review the motion); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.
1987).
A pro se litigant’s complaint is to be construed liberally, Erickson v. Pardus, 551 U.S. 89,
94 (2007), and is held to “less stringent standards” than a complaint drafted by counsel, Haines v.
Kerner, 404 U.S. 519, 520 (1972). Nonetheless, “[t]he leniency granted to pro se [litigants] . . . is
not boundless,” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004), and such complaints still must
plead facts sufficient to show a redressable legal wrong has been committed, Fed. R. Civ. P. 12(b);
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Dekoven v. Bell, 140 F. Supp. 2d 748, 755 (E.D. Mich. 2001). To plead a case under the current
regime, a plaintiff “must plead ‘enough factual matter’ that, when taken as true, ‘state[s] a claim to
relief that is plausible on its face.’ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007).
“Plausibility requires showing more than the ‘sheer possibility’ of relief but less than a ‘probab[le]’
entitlement to relief.” Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 2010) (quoting
Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009)).
“A motion to dismiss based on the expiration of the statute of limitations is analyzed under
Rule 12(b)(6).” Moseke v. Miller & Smith, Inc., 202 F. Supp. 2d 492, 501 (E.D. Va. 2002). Rule
12(b)(6) authorizes federal courts to dismiss a pleading for “failure to state a claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). “Like other Rule 12(b)(6) motions to dismiss, a motion
to dismiss on statute of limitations grounds should be granted ‘when the statement of the claim
affirmatively shows that the plaintiff can prove no set of facts that would entitle him to relief.’” New
Eng. Health Care Emps. Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003)
(quoting Ott v. Midland-Ross Corp., 523 F.2d 1367, 1369 (6th Cir. 1975)); see also Berry v.
Chrysler Corp., 150 F.2d 1002, 1003 (6th Cir. 1945) (stating that “[t]he defense of the statute of
limitations is covered by [Rule 12(b) ](6), and therefore is properly raised by motion”). “What that
means in the statute of limitations context is that dismissal is appropriate only if a complaint clearly
shows the claim is out of time.” Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999).
In this case, the plaintiff filed her Charge of Discrimination over three years after she was
terminated. A plaintiff alleging discrimination under Title VII or the ADA must file a charge of
discrimination with the EEOC within 300 days of the discriminatory event.
42 U.S.C.
§ 2000e-5(e)(1); 42 U.S.C. § 12117(a) (incorporating Title VII procedural requirements into the
ADA); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). For an
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employment discrimination claim under Title VII or the ADA, the limitations period begins to run
once “an employer makes and communicates a final decision to the employee.” E.E.O.C. v. United
Parcel Serv., Inc., 249 F.3d 557, 561 (6th Cir. 2001); Hall v. The Scotts Co., 211 F. App’x 361, 363
(6th Cir. 2006) (holding that the limitations period began to run once the employer denied an
employee’s request to operate a fork lift with a respirator due to his breathing problems). A new
limitations period does not begin if a party suffers adverse consequences from a previous
discriminatory act. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (holding that a flight
attendant’s claim for employment discrimination was barred because losing seniority was the present
effect of a past discriminatory act); Deleware State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (finding
that a college professor’s claim for employment discrimination was barred because the
discriminatory act took place on the day the professor received notice of his termination and not on
his final day of employment). To pursue her claims, the plaintiff was required to file her EEOC
charge on time. She did not. Her federal claims are time-barred.
The same fate befalls her state law claims. A discrimination claim under the Elliott-Larsen
Civil Rights Act (ELCRA) must be filed within three years from the date of the discriminatory
action. Mich. Comp. Laws § 600.5805(10); see Magee v. DaimlerChrysler Corp., 472 Mich. 108,
113, 693 N.W.2d 166, 168 (2005) (per curiam). The limitation period begins to run on the date of
the alleged wrongful act and not when the damages are suffered. Joliet v. Pitoniak, 475 Mich. 30,
40-41, 715 N.W.2d 60, 67 (2006). A discrimination compliant may be filed with the Michigan
Department of Civil Rights (MDCR), although it is not required. Mich. Comp. Laws §§ 37.2602,
37.2605. Because the plaintiff waited over three years to file her lawsuit arising from her
termination by Rite Aid, she may not pursue it in this Court.
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The plaintiff also implies that the acts of discrimination continued from April 15, 2007 to
April 6, 2010, but neither the facts as alleged nor the law support her argument. “Under Title VII,
two types of actions may be brought: (1) ‘discrete discriminatory acts,’ and (2) claims alleging a
‘hostile work environment.’” Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 993-94 (6th Cir. 2009)
(citing Morgan, 536 U.S. at 110 (2002)). The plaintiff did not allege a hostile work environment.
Instead, she alleged that Rite Aid discriminated against her by firing her — a discrete act. The
continuing violations doctrine is not applicable in cases of “discrete acts such as termination, failure
to promote, denial of transfer, or refusal to hire” because those acts are easy to identify. Morgan,
536 U.S. at 114; Dendinger v. Ohio, 207 F. App’x 521, 526 (6th Cir. 2006) (holding that the
continuing violations doctrine was not applicable because “each of the violations . . . was a discrete
occurrence of which [the plaintiff] was aware at the time”).
The plaintiff also contends that Rite Aid retaliated against her when it failed to clear her
employment record of the charge of cash register fraud. For the purpose of this motion, the Court
assumes that the cash register charge is false and Rite Aid did not take the entry off the plaintiff’s
employment record. To plead a case of retaliation under Title VII, the ADA, or the ELCRA, a
plaintiff “must establish that (1) he or she engaged in protected activity, (2) the employer knew of
the exercise of the protected right, (3) an adverse employment action was subsequently taken against
the employee, and (4) there was a causal connection between the protected activity and the adverse
employment action.” Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008);
DeFlaviis v. Lord & Taylor Inc., 223 Mich. App. 432, 436, 566 N.W.2d 661 (1997). It is unlawful
to retaliate against an employee who “has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing” relating to discriminatory employment practices.
42 U.S.C. 2000e-3. Similarly, the ELCRA prohibits retaliation in cases where a person “has made
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a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or
hearing under this act.” Mich. Comp. Law § 37.2701(a).
Magistrate Judge Michelson determined that the plaintiff did not allege that she engaged in
protected activity before the alleged retaliatory act. That point is obvious from the plaintiff’s
complaint. The plaintiff learned of the black mark on her record in April 2010 when she applied for
work at CVS. That meant that Rite Aid took the action of besmirching her employment record
sometime before that. But the plaintiff did not complain to the EEOC until August 2010. There is
no way the plaintiff’s prior EEOC filing could be the motivation for the defendant’s earlier action,
and the plaintiff has not alleged any other form of protected conduct.
The plaintiff also insists that she was not aware of the statute of limitations’ requirements.
Perhaps, but that does not save her case. The magistrate judge, although acknowledging that the
concept of equitable tolling can sometimes cushion the effect of the statute of limitations, concluded
that no relief was warranted here. The Court agrees. The fact that the plaintiff may be untrained
in the law, may have been proceeding without a lawyer or other legal assistance, or may have been
unaware of the statute of limitations for a period of time does not warrant tolling. See Allen v.
Yukins, 366 F.3d 396, 403-04 (6th Cir. 2004) (holding that ignorance of the law does not justify
tolling); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (holding that “ignorance of the law,
even for an incarcerated pro se petitioner” does not excuse late filing); Holloway v. Jones, 166 F.
Supp. 2d 1185, 1189 (E.D. Mich. 2001) (holding that lack of professional legal assistance does not
justify tolling). The plaintiff has offered no good reason for not pursuing her rights in a timely
manner, and she has not identified any obstacle that prevented her from complaining about the
alleged discrimination promptly after she was fired.
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Finally, the plaintiff complains about the impartiality of the decision maker, Judge
Michelson. It is unfortunate that the plaintiff, disgruntled by the magistrate judge’s recommendation
that was foreordained by resort to the plain language of the applicable statutes and the calendar, has
now chosen to level a baseless charge of judicial bias. Alleging that a judge is prejudiced against
a party is a serious matter, and a person making such a claim ought to be able to back it up. “Under
28 U.S.C. §§ 144 and 455, a judge must recuse himself if a reasonable, objective person, knowing
all of the circumstances, would have questioned the judge’s impartiality.” Hughes v. United States,
899 F.2d 1495, 1501 (6th Cir.1990); see also United States v. Hartsel, 199 F.3d 812, 820 (6th Cir.
1999). Prejudice or bias sufficient to justify recusal must be personal or extrajudicial. In re M.
Ibrahim Khan, P.S. C., 751 F.2d 162, 164 (6th Cir. 1984). “Personal bias is prejudice that emanates
from some source other than participation in the proceedings or prior contact with related cases.”
United States v. Nelson, 922 F.2d 311, 319-20 (6th Cir. 1990) (internal quotation marks omitted).
Bias finding its source in the judge’s view of the law or the facts of the case itself is not sufficient
to warrant disqualification. United States v. Story, 716 F.2d 1088, 1090 (6th Cir. 1983). Therefore,
disagreement with a judge’s decision or ruling is not a basis for disqualification or upsetting judicial
rulings. Liteky v. United States, 510 U.S. 540, 555-56 (1994). The plaintiff makes no effort to
support her allegations of judicial bias with any facts, other than to disagree with the outcome. Her
contention is impertinent and deserves no serious consideration.
III.
The plaintiff has not provided sufficient reason to dispute the correctness of the magistrate
judge’s conclusions.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation
[dkt. #16] is ADOPTED.
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It is further ORDERED that the plaintiff’s objections to the report and recommendation [dkt.
#17] are OVERRULED.
It is further ORDERED that the defendant’s motion to dismiss [dkt. #10] is GRANTED.
It is further ORDERED that the plaintiff’s complaint is DISMISSED WITH PREJUDICE.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: August 29, 2011
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 29, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL
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