Alvarado v. Michigan Department of Corrections et al

Filing 11

OPINION and ORDER granting the Motion of the MDOC Defendants to Dismiss 7 and Sua Sponte Dismissing the Complaint as to Defendant UAW. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NOE DANIEL ALVARADO,
Plaintiff,
vs.

Civil Action No. 18-CV-11142
HON. BERNARD A. FRIEDMAN

MICHIGAN DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.
_________________________/
OPINION AND ORDER GRANTING THE MOTION OF THE MDOC
DEFENDANTS TO DISMISS AND SUA SPONTE DISMISSING
THE COMPLAINT AS TO DEFENDANT UAW
This matter is presently before the Court on the motion of defendants Michigan
Department of Corrections (“MDOC”), Washington, Brewer, Scutt, McRoberts, Brown, and Merkey
(“the MDOC defendants”) to dismiss [docket entry 7]. Plaintiff has filed a response in opposition,
and the MDOC defendants have filed a reply. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall
decide this motion without a hearing.
This is an employment discrimination case. Plaintiff, “a 49-year old Hispanic male
employed by the [MDOC] since 1994,” Compl. ¶ 6, alleges that over the past twenty years
defendants have subjected him to various forms of discrimination and harassment based on his
gender and race and that they have retaliated against him for filing grievances about this perceived
mistreatment. For example, plaintiff alleges that in 1999 defendant Straub denied his request for a
light duty assignment after suffering a work-related injury in retaliation “for filing complaints.” Id.
¶ 21. In 2005 plaintiff “felt he was being discriminated against” when he was denied a promotion.
Id. ¶ 24. In “2005-2008 the Plaintiff applied to various promotional positions in the MDOC to no

avail.” Id. ¶ 30. From 2007 to the present, plaintiff “has been complaining that grievances that are
filed by inmates against the Plaintiff are not being properly screened whereas with others they are.”
Id. ¶ 35. In July and August 2012 plaintiff received three “unjust suspensions” of three and four
days’ duration. Id. ¶¶ 52, 56, 60. In 2013 a co-worker called plaintiff an “ass,” but that co-worker
was not disciplined. Id. ¶ 75. In 2014 and 2016 plaintiff learned that white co-workers were
promoted to a position for which he had applied. Id. ¶¶ 77, 109. Also in 2014 defendants Merkey
and Brewer denied plaintiff’s request to take a leave of absence to care for his ill father, “although
others were allowed to do so with no consequences.” Id. ¶¶ 84-85. In 2015 defendant Merkey gave
plaintiff a performance review, which plaintiff perceived to be “discriminatory harassment” because
Merkey marked several of the categories with a “needs improvement” rating. Id. ¶ 93.
Further, from July 2015 to the present plaintiff “notice[d] different staff calling him
‘El Chapo’ a reference to a Cartel Drug Kingpin.” Id. ¶ 95. In April 2015 plaintiff “was given a 26page investigative questionnaire in response to the discriminatory harassment complaint [he] filed
against certain individuals on February 21, 2015.” Id. ¶ 97. Plaintiff found this questionnaire to be
“nothing less than a scare tactic meant to intimidate, retaliate and harass the Plaintiff.” Id. “On or
about January 8, 2016 a coworker gave the Plaintiff a flyer that read ‘OBI Juan Kenobi.’” Id. ¶ 102.
In 2016 defendant McRoberts denied plaintiff’s request to be allowed to be patted down at the
security checkpoint, rather than having to remove his jacket, as an accommodation for his torn
rotator cuff. Id. ¶ 104. In November 2016 defendants McRoberts and Merkey “berated and belittled
the Plaintiff for making complaints.” Id. ¶ 114. In February 2017 plaintiff “serve[d] his one day
suspension that Defendant Brewer initiated.” Id. ¶ 121. In March 2017 plaintiff was “directed to
sign in and out of the building he works out of or face discipline although a black female librarian

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never signs in or out with no consequences.” Id. ¶ 123. In September 2017 “while having lunch
with a coworker another coworker move[d] a bottle of hot sauce ‘Cholula’ next to the Plaintiff and
said ‘Here you go, Noe.’” Id. ¶ 124. In October 2017 two workers asked plaintiff if he was going
to get any tacos that day, as they claimed it was “National Taco Day.” Id. ¶ 125. Plaintiff alleges
he was “[s]hocked [and] changed the subject.” Id. The same month coworkers who were making
coffee said, “You can’t have Cuban coffee you’re Mexican . . . that is not racist is it?” Id. ¶ 127.
Plaintiff also alleges that he filed many grievances about these incidents, but that the grievances
were denied or ignored.
Based on these allegations, plaintiff asserts claims against the MDOC defendants
under Title VII of the Civil Rights Act of 1964 (Counts I and II) for “subject[ing] him to a hostile
work environment due to the Plaintiff’s race” and “changing his assignments and escalating their
discriminatory treatment against him.” Id. ¶¶ 131, 139. He also asserts claims (in Counts III and IV)
against the MDOC defendants and defendant United Auto Workers (“UAW”) under 42 U.S.C. §
1981 because “[d]efendants treated Plaintiff differently, harassed him, and subjected him to a hostile
work environment on the basis of his race/hispanic ethnicity” and based on defendants’ “retaliatory
treatment and harassment of the Plaintiff . . . including changing his assignments and escalating their
discriminatory treatment against him.” Id. ¶¶ 144, 152. For relief, plaintiff seeks damages, lost
wages and benefits, costs, interest, and “[a]n injunction . . . prohibiting any further acts of
wrongdoing towards the Plaintiff or his zone of interests.” Compl. at 25.
The MDOC defendants seek dismissal of plaintiff’s Title VII claims because the vast
majority of the incidents alleged in the complaint are time barred. These defendants note that
plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission

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(“EEOC”) on May 2, 2017.1 See Defs.’ Reply, Ex. 1. Under 42 U.S.C. § 2000e-5(e)(1), plaintiff
had to file his EEOC charge within 180 days of the alleged discriminatory acts. See Williams v. Nw.
Airlines, Inc., 53 F. App’x 350, 351–52 (6th Cir. 2002). Therefore, the only incidents at issue in this
case for Title VII purposes are those which occurred during the 180-day period preceding the date
when plaintiff filed his EEOC charge, i.e., from November 3, 2016, to May 2, 2017.
Of the many discriminatory/retaliatory incidents alleged in the complaint, only three
occurred during this time period: defendants McRoberts and Merkey allegedly “berated and
belittled the Plaintiff for making complaints” in November 2016; defendant Brewer allegedly
suspended plaintiff for one day in February 2017; and plaintiff was “directed to sign in and out of
the building he works out of or face discipline although a black female librarian never signs in or
out with no consequences” in March 2017. Comp. ¶¶ 114, 121, 123. Yet of these three incidents,
only the February 2017 suspension was mentioned in plaintiff’s EEOC charge. As the filing of an
EEOC charge is a prerequisite to bringing suit under Title VII, see 42 U.S.C. § 2000e-5(e); Puckett
v. Tenn. Eastman Co., 889 F.2d 1481, 1486 (6th Cir. 1989), plaintiff’s Title VII claim is supported

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In his EEOC charge, plaintiff alleged in relevant part:
On or about March 10, 2015, I filed EEOC Charge 471-2015-01424,
against the Employer. In August 2016, I found out that a Caucasian
co-worker had received a promotion to level 12, with back pay.
When I inquired about a promotion, I was told that it did not exist.
On or about February 14, 2017, I served a 1-day suspension for
violating an alleged policy. I believe that although a female coworker violated that same policy, she received only a verbal warning.
I believe I have been discriminated against and retaliated against,
denied a promotion and suspended because of my national origin
(Hispanic), sex (male) and due to my participation in a protected
activity, in violation of Title VII of the Civil Rights Act of 1964, as
amended.
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solely by the February 2017 suspension.
Plaintiff’s entire allegation regarding this suspension is that “[o]n or about February
14, 2017 the Plaintiff serve[d] his one day suspension that Defendant Brewer initiated.”2 Compl.
¶ 121. This allegation fails to state a claim because it does not contain “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nor does this allegation, which provides all of the
complaint’s information regarding the February 2017 suspension, constitute “a short and plain
statement of the claim showing that the pleader is entitled to relief, in order to giver 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). The complaint alleges no facts concerning the circumstances of the
“suspension that Defendant Brewer initiated,” and there is no allegation that the suspension had
anything to do with plaintiff’s race or gender or the fact that he had filed complaints and grievances
in the past. Accordingly, the Court shall grant the MDOC defendants’ motion to dismiss Counts I
and II of the complaint.
In Counts III and IV, plaintiff is suing the MDOC defendants and the UAW under
42 U.S.C. § 1981. While this statute, like Title VII, prohibits race discrimination in employment,
the Sixth Circuit has held that it provides no remedy against state actors either in their individual or
in their official capacities. See McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012);

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As noted, in his EEOC charge plaintiff alleged that “[o]n or about February 14, 2017, I
served a 1-day suspension for violating an alleged policy. I believe that although a female coworker violated that same policy, she received only a verbal warning.” Defs.’ Reply, Ex. 1. The
only similar allegation in the complaint is that in March 2017 plaintiff was “directed to sign in
and out of the building he works out of or face discipline although a black female librarian never
signs in or out with no consequences.” Compl. ¶ 123.
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Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008). The individual MDOC defendants are entitled
to dismissal of Counts III and IV for this reason. Defendant MDOC, being a state department, is
entitled to dismissal because it has immunity under the Eleventh Amendment. See, e.g., O’Brien
v. Mich. Dep’t of Corr., 592 F. App’x 338, 341 (6th Cir. 2014).
Finally, the Court shall sua sponte dismiss the complaint as to defendant UAW for
lack of jurisdiction. Plaintiff’s only allegations against the UAW are that in February 2013 it found
that “no contract violation could be sustained” regarding three of plaintiff’s grievances, while
plaintiff believed there was “overwhelming evidence to the contrary,” Compl. ¶ 65, and that in
November 2016 “in response to a grievance the Plaintiff filed, the UAW representative (black
female librarian) told the Plaintiff ‘. . . You create hostile environments before trying to resolve the
issue . . .’ AND she copied Defendants Warden Shawn Brewer and Deputy Warden Lee
McRoberts.” Id. ¶ 111. Plaintiff does not allege that the union’s decision not to pursue his
grievances had anything to do with his race or gender. The Court has no jurisdiction to entertain
frivolous, insubstantial allegations such as these. See Hagans v. Lavine, 415 U.S. 528, 538 (1974).
Accordingly,

IT IS ORDERED that the MDOC defendants’ motion to dismiss is granted.

IT IS FURTHER ORDERED that the complaint is dismissed as to defendant UAW
on the Court’s own motion.

Dated: August 28, 2018
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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CERTIFICATE 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 28, 2018.
s/Johnetta M. Curry-Williams
Case Manager

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