Perrin v. Vuliai et al
Filing
15
ORDER granting 11 Motion to Dismiss and denying 14 Motion for Appointment of Counsel. Signed by District Judge Denise Page Hood. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Tasha Perrin,
Plaintiff,
Case No. 15-cv-13482
Hon. Denise Page Hood
v.
Nua Vuliai et al,
Defendants.
__________________________/
ORDER GRANTING MOTION TO DISMISS (Doc. No. 11) AND DENYING
MOTION FOR APPOINTMENT OF COUNSEL (Doc. No. 14)
I.
INTRODUCTION AND BACKGROUND
Before the Court is Defendant Vuliai’s Motion to Dismiss Plaintiff’s
Complaint (Doc. No. 11) and Plaintiff’s Motion for Appointment of Counsel
(Doc. No. 14). For the reasons stated below, the Motion to Dismiss is
GRANTED and the Motion for Appointment of Counsel is DENIED.
Pro Se Plaintiff Tasha Perrin (“Perrin”) worked as a waitress for
Defendants Nua Vuliai (“Vuliai”) and Elliot (“Elliot”) restaurant, Omega Grill.
The dates of Perrin’s employment with Omega Grill is disputed. Plaintiff
states she began working for Omega Grill in March 2013, while Defendant
claims she started in July 2013. Plaintiff allegedly quit working for Omega
1
Grill on September 14, 2014, but returned on February 15, 2015. Plaintiff
quit for a final time on April 16, 2015.
On October 5, 2015, Perrin filed a pro se Complaint with this Court
alleging violations of Title VII. Specifically, she alleges she was
discriminated against due to her race and gender. She alleges that
Defendants consistently made degrading racial and sexual remarks to her,
such as requesting sexual acts from Plaintiff. She also states, that each
time she complained of the harassment, Defendants would retaliate against
her with more harassment. Defendant Vuliai responded with a Motion to
Dismiss stating that Plaintiff failed to exhaust her administrative remedies
with the EEOC. Plaintiff responds that she did exhaust her administrative
remedies with Defendants. She followed the internal policies of Omega
Grill. She wrote Defendants a letter stating that unless Defendants stopped
harassing her, she would quit. Accordingly, she states she did exhaust all
administrative remedies. Perrin also notes that exhaustion of administrative
remedies with the EEOC is not a jurisdictional requirement for a claim for
retaliation under Title VII.
II.
STANDARD OF REVIEW
In general, a complaint requires "a short and plain statement of the
2
claim showing that the pleader is entitled to relief, in order to give the
defendant fair notice of what the ...claim is and the grounds upon which it
rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). However, as a result of Twombly, a complaint must "state a claim
to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an
action for failure to state a claim upon which relief can be granted. When a
complaint is challenged under Rule 12(b)(6), a court must construe the
complaint "in the light most favorable to the plaintiff, accept all the factual
allegations as true, and determine whether the plaintiff can prove a set of
facts in support of its claims that would entitle it to relief." Albrecht v. Treon,
617 F.3d 890, 893 (6th Cir. 2010). Although the court primarily considers
the allegations in the complaint, "matters of public record, orders, items
appearing in the record of the case, and exhibits attached to the complaint
may also be taken into account." Amini v. Oberlin College, 259 F.3d 493,
502 (6th Cir.2001).
Dismissal under Rule 12(b)(6) is warranted "only if it appears beyond
doubt that the plaintiff can prove no set of facts in support of the claims that
3
would entitle him or her to relief." Zaluski v. United Am. Healthcare Corp.,
527 F.3d 564, 570 (6th Cir. 2008).
III.
DEFENDANT’S MOTION TO DISMISS
Under Title VII, before filing a complaint in the district court, a plaintiff
must exhaust her administrative remedies by filing a charge of
discrimination with the EEOC and obtaining a right-to-sue letter. 29 U.S.C.
§§ 626(d)-(e); 42 U.S.C. §§ 2000e–5(e)–(f); Randolph v. Ohio Department
of Youth Services, 453 F.3d 724, 731-732 (6th Cir.2006). “An individual
may not file suit under Title VII if she does not possess a “right to sue”
letter from the EEOC.” E.E.O.C. v. Frank's Nursery & Crafts, Inc., 177 F.3d
448, 456 (6th Cir. 1999). Therefore, the failure to timely exhaust available
administrative remedies is an appropriate basis for dismissal of Title VII
action. Henderson v. Enter. Leasing of Detroit, LLC, No. 13-14892, 2014
WL 1515828, at *3 (E.D. Mich. Apr. 18, 2014); Abe v. Michigan Dep't of
Consumer & Indus. Servs., 229 F.3d 1150 (6th Cir.2000).
In this case, Perrin does not allege that she filed a discrimination
charge with the EEOC prior to filing her Complaint with this Court. Nor did
she produce to the Court a Right-to-Sue letter from the EEOC indicating
that she exhausted her administrative remedies under Title VII. In her
4
response to Defendant’s Motion, she claims she exhausted Omega Grill’s
administrative remedies by writing her complaints in a letter and giving the
letter to Defendants, but exhaustion of the internal employer administrative
procedures are not the administrative remedies Title VII requires. Rather, a
plaintiff must exhaust EEOC administrative remedies.
Plaintiff argues that her Complaint should not be dismissed because
failing to exhaust is not a jurisdictional requirement for a Title VII claim.
Perrin relies on Adamov v. U.S. Bank Nat. Ass'n, 726 F.3d 851 (6th Cir.
2013) for this proposition. In Adamov, the Sixth Circuit noted that
exhaustion of a Title VII claim is not a jurisdictional requirement under Title
VII. Id. at 856. Jurisdictional, as in, an issue the Court can raise sua
sponte. The Sixth Circuit concluded that the defendant in Adamov forfeited
the argument that the plaintiff failed to exhaust his retaliation claim by
failing to raise it in district court. Id. In this case, Defendant did raise
exhaustion as grounds for dismissing Perrin's discrimination claims.
Therefore, Adamov does not apply and her claim must be dismissed. See
also, Cotuna v. Walmart Stores, Inc., No. 14-CV-10420, 2015 WL 928201,
at *4 (E.D. Mich. Mar. 4, 2015)(noting that while failure to exhaust is not
jurisdictional under Adamov, gender discrimination was subject to dismissal
5
for failure to exhaust when defendant raised failure to exhaust in
responsive motion.)
In addition, Perrin claims that Defendants committed tax fraud. The
IRS, and not private citizens, are in charge of enforcing the tax code. Obal
v. Deutsche Bank Nat. Trust Co., No. 14 CIV. 2463, 2015 WL 631404, at *4
(S.D.N.Y. Feb. 13, 2015). See also, Seabury v. City of New York, No.
06-CV-1477 (NGG), 2006 WL 1367396, at *5 (E.D.N.Y. May 18, 2006)
(“Section 7202 of the United States Tax Code provides for criminal
penalties for failing to collect, account for, or pay over any taxes imposed
by the Tax Code, but does not provide for a private right of action. 26
U.S.C. § 7202.”). Perrin is a private citizen. She does not have the authority
to enforce alleged violations of the tax code. Accordingly, this claim is also
dismissed.
IV.
Plaintiff’s Motion for Appointment of Counsel
Perrin filed a motion for appointment of counsel. Since the Court is
Granting the Motion to Dismiss, this request is DENIED.
V.
CONCLUSION
Defendant’s Motion to Dismiss (Doc. No. 11) is GRANTED and
Plaintiff’s Complaint is DISMISSED as to both Defendants. Accordingly,
6
this action is DISMISSED. Plaintiff’s Motion for Appointment of Counsel
(Doc. No. 14) is DENIED.
IT IS ORDERED.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: February 29, 2016
I hereby certify that a copy of the foregoing document was served upon
counsel of record on February 29, 2016 electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?