Mugaher v. Sodecia Corp
MEMORANDUM AND ORDER DENYING DEFENDANTS MOTION TO DISMISS WITHOUT PREJUDICE (Doc. 10) AND DENYING PLAINTIFFS MOTION FOR APPOINTMENT OF COUNSEL WITHOUT PREJUDICE (Doc. 12). Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MOHAMMED F. MUGAHER,
Case No. 17-10222
HON. AVERN COHN
MEMORANDUM AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS WITHOUT PREJUDICE (Doc. 10)
DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL WITHOUT
PREJUDICE (Doc. 12)1
This is an employment case. Plaintiff Mohammed F. Mugaher (Mugaher) is
proceeding pro se and without payment of the filing fee. Mugaher has sued defendant
Sodecia Corp. (Sodecia) claiming that he was discriminated against him in violation of
Title VII by paying him less per hour than his co-workers. He says this discrimination
was due to his race and national origin.
Before the Court is Sodecia’s motion to dismiss for lack of jurisdiction, improper
service, and failure to state a claim. (Doc. 10). Also before the Court is Mugaher’s
motion for the appointment of counsel. (Doc. 12). Both motions will be denied without
prejudice. The reasons follow.
Upon review of the parties’ papers, the Court deems this matter appropriate for
decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
On January 24, 2017, Mugaher filed a Complaint of Employment Discrimination,
using the Title VII form complaint provided by the Clerk’s Office. He states the dates of
the alleged discriminatory conduct as February 15, 2015 to July 2015. The short
narrative statement of his claim is as follows:
I was working with this employer in Sterling Heights then we had a choice to be
laid off or transferred to Roseville facility. I wanted to transfer with 5 other
workers also we were being paid $11 an hr. I actually made $18 hr. at Sterling
Heights. Everyone was paid their regular pay except me. I was paid only $11 an
Mugaher marked the boxes for “race” and “national origin” as the alleged basis for the
discriminatory treatment. Attached to the complaint is Mugaher’s right to sue letter from
the EEOC. The notice states that the EEOC closed its file because it was not able to
conclude there was a violation but made no definitive finding. Notably, the EEOC did
not close the file on the grounds that Mugaher was untimely in filing a charge. The right
to sue letter is dated October 26, 2017. Mugaher’s complaint was filed within 90 days of
the right to sue letter.
III. Motion to Dismiss
A. Legal Standard
Under Rule 12(b)(6) a complaint must be dismissed if it does not “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The plausibility standard
demands more than a “sheer possibility that a defendant has acted unlawfully.” Id.
Rather, for a claim to be facially plausible, a plaintiff must plead “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 1949. Rule 12(b)(6) motion tests the sufficiency of a
plaintiff’s pleading. Fed. R. Civ. P. 12(b)(6). The Court need not accept as true “legal
conclusions or unwarranted factual inferences.” In Re Packaged Ice Antitrust Litig., 723
F. Supp. 2d 987, 1002 (E.D. Mich. 2010) (quoting Directv, Inc. v. Treesh, 487 F.3d 471,
476 (6th Cir. 2007)).
The Court must read pro se complaints indulgently, see Haines v. Kerner, 404
U.S. 519, 520 (1972), and accept plaintiff's allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Defendant says that Mugaher’s complaint must be dismissed (1) for lack of
subject matter jurisdiction, (2) for improper service (3) for failure to state a claim.
As to improper service, Mugaher named Sodecia Corp. as defendant. The
proper entity is Sodecia USA Automotive Corp. Despite this error, Sodecia was served
at a proper address, retained counsel, and filed a dispositive motion. Moreover, as
Sodecia notes, Mugaher can amend the complaint to name the proper corporate
defendant. Thus, the Court declines to dismiss the complaint on this ground.
Sodecia’s lack of subject matter jurisdiction and failure to state a claim
arguments are based in part on the same premise - that Mugaher failed to timely file a
charge with the EEOC. Regardless of whether the failure to file a timely charge is
considered jurisdictional or simply failure to state a plausible claim, the question of
whether Mugaher’s charge was timely filed will be considered below.
Prior to bringing a claim of employment discrimination under Title VII, a plaintiff is
required to exhaust her administrative remedies by filing a timely charge with the EEOC
and receiving a right to sue letter. Nichols v. Muskingum Coll., 318 F.3d 674, 677 (6th
Cir. 2003) (citations omitted). Failure to do so is cause for dismissal. Hunter v. Sec'y of
U.S. Army, 565 F.3d 986, 993 (6th Cir. 2009) (citing cases).
Under 42 U.S.C. § 2000e-5(e)(1), a charge is timely if it is filed with the EEOC
within 180 days from the date of the alleged discrimination. “A claim is time barred if it
is not filed within these time limits.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 109 (2002).
Here, Sodecia says that the complaint alleges discriminatory conduct occurred
from February 15, 2015 to July 2015. Sodecia also says that Mugaher filed his charge
on May 10, 2016 which is more than 180 days from February 2015. The record,
however, does not contain a copy of Mugaher’s charge from which to verify that it was
filed on May 10, 2016. Moreover, the EEOC did not dismiss the charge as untimely
which is an option on the right-to-sue letter. The EEOC dismissed Mugaher’s charge
because “it was unable to conclude that the information obtained establishes violations
of the statutes.” Based on the record as it stands, the Court cannot say that Mugaher’s
charge was untimely.
Finally, Sodecia also says that the complaint must be dismissed because
Mugaher’s “blanket assertions of discrimination are contrary to the true facts in this
matter.” Sodecia goes on to detail a factual narrative of Mugaher’s employment with
Sodecia. For the most part, Mugaher’s response does not challenge Sodecia’s
rendition of the facts. Both parties agree on the following:
Mugaher worked at Sodecia’s Sterling Heights facility.
In February 2015, Mugaher was given the option for a layoff or a transfer
to Sodecia’s Roseville facility.
Mugaher chose the transfer.
Mugaher was paid approximately $11 per hour at Roseville, a decrease
from the approximately $18 per hour at the Sterling Heights facility.
In March 2015, Mugaher received a raise from $11.06 per hour to $11.27
Mugaher was laid off from Roseville in June of 2015.
On July 2015, Mugaher returned to Sterling Heights at his prior wage rate
of $18.15 per hour.
From the above, Sodecia says that Mugaher cannot make out a plausible claim for
discrimination. Sodecia’s argument proves too much. First, Sodecia relies on an
affidavit from a Human Resources Manager and a document from Mugaher’s personnel
file in support–both of which are clearly outside of the pleadings for considering on a
motion to dismiss. Second, while Sodecia says that according to its records, Mugaher
was paid all the wages to which he was entitled, it fails to understand the basis for
Mugaher’s discrimination claim–that he was paid less than his co-workers who were
also transferred from Sterling Heights to Roseville which he believes was due to his
race and national origin. Mugaher says in his response that while others were paid $18
at Roseville, he was paid only $11. He further says that his co-workers, identified by
their first name, who also transferred from Sterling Heights to Roseville were paid their
“regular pay” but he was not. Giving Mugaher’s response to Sodecia’s motion a liberal
construction, it cannot be said that Mugaher has failed to make out a plausible claim for
IV. Motion for Appointment of Counsel
As to Mugaher’s motion for the appointment of counsel, an indigent plaintiff in a
civil action, unlike a criminal defendant, has no constitutional right to the appointment of
counsel. Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); Lavado v. Keohane, 992
F.2d 601, 605 (6th Cir. 1993). Rather, the appointment of counsel is a “privilege
justified only by exceptional circumstances.” Lavado, 992 F.2d at 606 (citations
omitted). Whether to appoint counsel for an indigent plaintiff in a civil action is a matter
within the discretion of the district court. Id. at 604. In making the determination of
whether the circumstances warrant the appointment of counsel, courts are to consider
the type of case presented and the abilities of the plaintiff to represent himself. Id. at
606 (citations omitted). Evaluation of these factors in turn “generally involves a
determination of the complexity of the factual and legal issues involved.” Id. (internal
quotation marks and citation omitted).
Here. Mugaher is unable to afford counsel but he has not demonstrated that his
circumstances are different from those in which most pro se litigants find themselves,
and her allegations do not suggest any facts or issues that would be exceptionally
difficult to present. Thus, the Court finds that the interests of justice do not require the
appointment of counsel at this time.
For the reasons stated above, Sodecia’s motion to dismiss is DENIED WITHOUT
Mugaher’s motion for appointment of counsel is DENIED WITHOUT PREJUDICE
to his ability to raise the issue again at a later date if circumstances warrant.
Defendant shall file an answer to the complaint within twenty (20) days of this
order. The Clerk shall schedule a status conference for a date after the answer is due
to be filed.
UNITED STATES DISTRICT JUDGE
Dated: June 12, 2017
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