Colston v. Boston Market Corporation et al

Filing 24

OPINION and ORDER re 20 REPORT AND RECOMMENDATION re 13 MOTION to Dismiss - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK COLSTON,
Case No. 17-11649
Plaintiff,
Honorable Nancy G. Edmunds
v.
BOSTON MARKET CORPORATION and
SARAH PRINZI,
Defendants.
/

OPINION AND ORDER ACCEPTING THE MAGISTRATE JUDGE'S FEBRUARY 14,
2018 REPORT AND RECOMMENDATION [20]
Currently before the Court is Magistrate Judge Patti's Report and Recommendation
[20] to grant Defendants' Motion to Dismiss [13], pursuant to Fed. R. Civ. P. 12(b)(1) and
Fed. R. Civ. P. 12(b)(6), for failing to plead facts sufficient to state a claim upon which relief
can be granted. Plaintiff has since lodged two objections [21] to the Magistrate Judge's
Recommendation, which the Court considers here. For the reasons that follow, the Court
OVERRULES Plaintiff's objections, ADOPTS the Report and Recommendation, and
DISMISSES the case.
This Court performs a de novo review of those portions of Magistrate Judge Patti's
Report and Recommendation to which Plaintiff has objected. 28 U.S.C. § 636(b). The Court
need not and does not perform a de novo review of the report's unobjected-to findings.
Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Moreover, an
objection that "does nothing more than state a disagreement with a magistrate [judge]’s
suggested resolution, or simply summarizes what has been presented before, is not an

'objection' as that term is used in this context.'" Aldrich v. Bock, 327 F. Supp. 2d. 743, 747
(E.D. Mich. 2004). Indeed, the purpose of an objection to a report and recommendation is
to provide the Court “with the opportunity to consider the specific contentions of the parties
and to correct any errors immediately.” Id. (quoting United States v. Walters, 638 F.2d 947,
949–50 (6th Cir.1981)).
Plaintiff, Mark Colston, filed this pro se civil rights action against his former employer,
Defendant Boston Market Corporation ("Boston Market") and against Defendant Sarah
Prinzi ("Prinzi"), the Director of Risk Management and Loss Prevention for Boston Market
Corporation (collectively "Defendants"). Boston Market hired Plaintiff in October 2013 to
work as a dishwasher. In October 2014, and again on August 15, 2016, gunmen robbed
the restaurant, while Plaintiff was present. During the August 15, 2016 robbery, a fellow
employee pushed Plaintiff as they both attempted to escape the gunman. Plaintiff fell at
the back door entrance, managed to stand, and seek safety at a neighboring drug store
despite the fall. The following day, Plaintiff informed Boston Market he was injured during
the robbery and needed immediate medical attention.
Following the August 15, 2016 robbery, Plaintiff never returned to regular work with
Boston Market. Plaintiff asserts "he was not placed back on schedule to work after he
informed management that he was injured during the robbery and he provided proof that
he was injured." (Pl. Compl., Dkt. 1, at 8; PgID 8.) Plaintiff had a series of frustrating
communications, on December 21, 2016, January 26, 2017 and February 2, 2017, with
Defendant Sarah Prinzi and Dolores Graham ("Graham"), the workers compensation
adjuster from Gallagher Bassett Services, Boston Market's workers compensation provider.
Prinzi informed Plaintiff that Boston Market had terminated him on November 1, 2016 for
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not going to work and that benefits were no longer available to him. Graham stated "they
were going to dispute [Plaintiff's] claim that he was injured as a result of the robbery." (Pl.
Compl., Dkt. 1, at 5, PgID 5.)
Plaintiff claims the following injuries as a result of the robbery on August 15, 2016.
Plaintiff provides a Medical Absence note from Roseville Urgent Care, which states in full,
"Patient [Plaintiff] was seen on 9/12/2016 and is able to return to work on 9/12/2016.
Activity Limitations: No prolonged standing or excessive walking for 2 weeks." (Pl. Resp.
to Mot.; Dkt. 17, at 12; PgID 159.) Additionally Plaintiff provides a one page letter dated
March 13, 2017 from One Step At A Time Counseling Services, Inc. which describes
Plaintiff having PTSD symptoms and an injury to his lower back and right ankle. (Pl. Resp.
to Mot.; Id. at 18; PgID 160.)
Plaintiff filed two previous complaints with this Court related to these incidents both
of which were dismissed without prejudice. (See Case Nox. 17-10076 and 17-10084.) On
May 24, 2017, Plaintiff filed this matter. Plaintiff's complaint states in part:
This is a civil rights action file by Mark Colston In Pro Per seeking injunctive
relief, damages and punitive damages pursuant to rights secured by the
Michigan constitution and the constitution of the United States and those
secured by the eighth amendment cruel and unusual punishment and the
fourteenth amendment due process and equal protection of the law. Title VII
of the Civil Rights Act of 1964, Title I of the Americans with Disabilities and
Retaliation.
(Pl. Compl.; Dkt. 1, at 1; PgID 1.)
Plaintiff's pleading references a February 2, 2017 EEOC complaint filed with the
Michigan Department of Civil Rights and which purportedly issued a right to sue letter. (Pl.
Compl.; Dkt. 1, at 8; PgID 8.) On the face of the pleading, Plaintiff intends this to be a civil
rights complaint. However, Plaintiff's pleading lacks a straightforward legal theory and is
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not "a short and plain statement of the claim showing that the pleader is entitled to relief."
Fed. R. Civ. P. 8(a)(2). The Sixth Circuit liberally construes pleadings of a pro se litigant.
Martiv v. Overton, 391 F.3d 710, 712 (6th Cir. 2004) (citing Haines v. Kerner, 404 U.S. 519,
520-21 (1972)); Herron v. Harrison, 203 F.3d 410, 414 (6th Cir. 2000) (pro se pleadings
are held to "an especially liberal standard"); Fed. R. Civ. P. 8(f) ("All pleadings shall be so
construed as to do substantial justice").

Magistrate Judge Patti therefore, interprets

Plaintiff's intended claims and theories of liability as three causes of action: (1) a Title VII
claim for wrongful discharge based on racial discrimination, with sub-theories of discharge
due to race and retaliation for complaining about racial discrimination; (2) an ADA wrongful
termination claim based upon the theory of retaliation for complaining; and, (3) a claim for
denial of medical or workers compensation benefits.
Plaintiff's second objection takes umbrage with Magistrate Judge Patti's interpretation
of Plaintiff's claims.

The objection states, "objections to the Magistrate [Judge's]

interpretation of Plaintiff legal clams an[d] demands for relief." (Pl. Obj. to R&R; Dkt. 21,
at 5; PgID 209.) "Plaintiff claims in the complaint filed May 24, 2017 and Plaintiff response
to Defendants motion to dismiss are about wrongful termination/retaliation." (Id.) Plaintiff
follows these statements with a series of previously presented facts. Plaintiff does not
explain how his objection asserting a wrongful termination/retaliation claim, differs from the
first and second causes of action the Magistrate Judge described, a Title VII claim for
wrongful termination based on retaliation and an ADA wrongful termination claim for
retaliation.
Although pro se pleadings are held to a less stringent standard than formal pleadings
drafted by lawyers, "the lenient treatment generally accorded to pro se litigants has limits."
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Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). "[T]he less stringent standard for pro
se plaintiffs does not compel courts to conjure up unpleaded facts to support conclusory
allegations." Leisure v. Hogan, 21 Fed.Appx. 277, 278 (6th Cir. 2001). A court cannot
"create a claim which [a plaintiff] has not spelled out in his pleading." Clark v. Nat'l
Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). Magistrate Judge Patti, made
a fair assessment of Plaintiff's pleadings and articulated the three possible avenues of
liability despite Plaintiff's near incoherence. Plaintiff's objection to those conclusions lack
specificity for this Court to know what claim he believes Magistrate Judge Patti overlooked.
Because Plaintiff simply summarizes facts that have been presented before and does not
support his objection with any specific error in the Magistrate Judge's reasoning, Plaintiff's
objection fails.
Plaintiff's other objection is with the Magistrate Judge's finding that Plaintiff's Title VII
and ADA claims are precluded because Plaintiff failed to file within 90 days of the Right to
Sue notice, as required by law. Plaintiff presents for the first time in his objection an
"equitable tolling" argument. The theory of "equitable tolling" was not raised in Plaintiff's
Complaint, nor in his Response to Plaintiff's Motion to Dismiss [17]. Plaintiff has offered
no explanation for his failure to assert this claim earlier.
The Sixth Circuit stated in 2010, it has not squarely addressed whether a party may
raise new arguments before a district judge that were not presented to the magistrate
judge. The Glidden Co. v. Kinsella, 386 Fed.Appx. 535 n.2 (6th Cir. 2010) (citing Murr v.
United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000). However, also in 2010, the Sixth
Circuit held a district court was correct finding "a claim raised for the first time in objections
to a magistrate judge's report is deemed waived." Swain v. Comm'r of Soc. Sec., 379 Fed.
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Appx. 512, 517-18 (6th Cir. 2010) (citing Ward v. United States, 208 F.3d 216, 216 (6th Cir.
2000) (unpublished table decision) (citing Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th
Cir. 1996)(collecting cases holding that issues raised for the first time in objections to
magistrate judge's report and recommendation are deemed waived))). Subsequent Sixth
Circuit cases, in 2011, 2016 and 2017, continue to hold claims raised for the first time in
objections to a magistrate judge's report and recommendation are not properly before a
district court. Becker v. Clermont County Prosecutor, 450 Fed.Appx. 438, 439 (6th Cir.
2011) (citing Murr, 200 F.3d at 902 n.1); Lindsay v. Bradshaw, 2017 WL 4417877 at *2 (6th
Cir. 2017) (citing Murr, 200 F.3d at 902 n.1); Hogston v. Comm'r of Soc. Sec., 2016 WL
9447154 at *3 (6th Cir. 2016) (citing Murr, 200 F.3d at 902 n.1 and also Swain, 379
Fed.Appx. at 517-18). Numerous district courts in the Sixth Circuit, have held the same.1
"It is well established that a party may not raise an argument, advance a theory, or marshal
evidence before a district judge that was not fairly presented to the magistrate judge. The
Magistrates Act was not intended to give litigants an opportunity to run one version of their
case past the magistrate, then another past the district court." Childress v. Michalke, 2014
WL 3819347, at *3 (E.D. Mich. Aug. 4, 2014) ( J. Goldsmith) (citing Murr, 200 F.3d at 902
n.1) (quotation marks omitted). Plaintiff's failure to raise the equitable tolling argument prior
to this objection, means Plaintiff has waived this argument.

1

Defendant cites three such district court cases. Accord Brown v. Cassens Transp.
Co., 2007 WL 4548225, *1 (E.D. Mich. Dec. 19, 2007)(J. Borman) ("Parties cannot raise
arguments on objection to a report and recommendation that they did not bring beforet he
magistrate judge."); Allen v. Int'l Truck & Engine Corp., 2009 WL 863591, *1 (S.D. Ohio
Mar. 31, 2009) ("the Sixth Circuit held that a party is not permitted to raise a new argument,
for the first time, in objections to a Report and Recommendation [sic] before the District
Court, and the failure to raise the agrguement before the Magistrate Judge constitutes the
waiver of the same."); Marr v. Foy, 2010 WL 3061297, *4 (W.D. Mich. Aug. 3, 2010).
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Notwithstanding Plaintiff's waiver, this Court finds Plaintiff's claim regarding equitable
tolling to be without merit. In the employment discrimination context, the Sixth Circuit has
enumerated five factors that are pertinent to a decision whether to apply equitable tolling:
(1) lack of actual notice of the filing requirement; (2) lack of constructive knowledge of the
filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the
defendant; and (5) a plaintiff's reasonableness in remaining ignorant of the notice
requirement. Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). The Sixth Circuit has also
cautioned that equitable tolling "is not an escape valve through which jurisdictional
requirement will evaporate since the tolling of the statutory periods on equitable grounds
is usually very much restricted." Brown v. Mead Corp., 646 F.2d 1163, 1165 (6th Cir. 1981)
(citations omitted).
Nothing contained within Plaintiff's asserted facts, taking all assertions to be true,
explains circumstances that prevented Plaintiff from filing on time. He knew of the filing
date as early as February. Plaintiff then waited until the second week of May to contact
Defendant in an effort to resolve the matter, only a week before the filing deadline. (Pl.
Object. R&R; Dkt. 21, at 3; PgID 207.) When Plaintiff did not hear back from Defendants,
Plaintiff filed his complaint a few days late although he could have, just as easily, filed
within the 90 day time limit provided. The law is "replete with instance which firmly
establish that ignorance of the law, despite a litigant's pro se status is not excuse" for failure
to follow legal requirements." Rodriguez v. Elo, 195 F. Supp. 2d 934, 936 (E.D. Mich.
2002). Plaintiff had knowledge of the deadline and still filed late. Plaintiff's failure to file on
time was avoidable. Plaintiff's attempt to use the equitable tolling doctrine, after previously
not raising this issue, fails on the merits as well. Plaintiff's objection is therefore denied.
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For the reasons thus stated, the Court OVERRULES Plaintiff's objections, ADOPTS
the Magistrate Judge's Report and Recommendation, and DISMISSES the complaint.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: March 19, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record
on March 19, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

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