Schluter v. Encore Rehabilitation Services, LLC et al

Filing 6

OPINION and ORDER granting Plaintiff's #2 Application to Proceed In Forma Pauperis and Dismissing the #1 Complaint. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JENNIFER SCHLUTER,
Plaintiff,
vs.

Civil Action No. 21-CV-10874
HON. BERNARD A. FRIEDMAN

ENCORE REHABILITATION
SERVICES LLC, et al.,
Defendants.
_________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS AND DISMISSING THE COMPLAINT
This matter is presently before the Court on plaintiff’s application to proceed in forma
pauperis. As the application makes the required showing of indigence, the Court shall grant the
application and permit the complaint to be filed without requiring plaintiff to prepay the filing fee.
While pro se complaints are held to “less stringent standards” than those drafted by
lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court is nonetheless required to dismiss
an in forma pauperis complaint if it is frivolous or malicious or if it fails to state a claim on which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous if “it lacks an
arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint
fails to state a claim if it does not “contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d
365, 369 (6th Cir. 2011) (citations and internal quotations omitted).
In the present case, the complaint is frivolous and fails to state a claim. Plaintiff
brought a nearly identical lawsuit against these same defendants (Encore Rehabilitation Services,
LLC, Regional Manager Drita, and Manager Morgan Decker) in 2019. See Schluter v. Encore

Rehab. Servs., LLC, Civil No. 19-CV-13092 (E.D. Mich.). As in the present case, plaintiff asserted
claims in the prior action under the Fair Labor Standards Act (“FLSA”) and the Equal Pay Act. The
Court dismissed the FLSA claim because plaintiff “does not allege that defendant failed to pay her
a minimum wage or for overtime,” and it dismissed the Equal Pay Act claim because plaintiff did
not allege that she was paid less than similarly situated men. Id. (Dec. 17, 2020, Order Dismissing
Pl.’s Claims Under the Equal Pay Act and the Fair Labor Standards Act). Simultaneously, the Court
entered judgment for defendants. Plaintiff did not appeal that judgment.
The Court’s unappealed judgment in the prior action is res judicata as to all claims
plaintiff asserted, and all claims she could have asserted, against defendants Encore Rehabilitation
Services, LLC, Drita, and Decker. See Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc.,
140 S. Ct. 1589, 1594 (2020) (noting the doctrine of res judicata “prevents parties from raising
issues that could have been raised and decided in a prior action–even if they were not actually
litigated”). That is to say, plaintiff is not permitted to refile old claims that she previously raised in
a lawsuit that ended in a judgment being entered against her. While plaintiff now claims that
defendants underpaid her based on her gender (while previously claiming that they did so based on
her race), plaintiff was required to present all of her claims in her first lawsuit. Having failed to do
so then, she is barred from doing so now. Plaintiff’s complaint therefore lacks an arguable basis in
law.
The instant complaint also fails to state a plausible claim under the Equal Pay Act
or the FLSA. The entirety of plaintiff’s factual allegations are as follows:
Throughout my entire employment experience, I was an excellent
employee who was disparately treated in that male employees, with
less experience, education and seniority were paid more than me.
The most recent incident occurred on May 3, 2019 when I reported
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to work as usual; half-way through my shift, Regional Manager, Drita
(Inu), asked me to meet with her and Morgan Decker, (Manager) and
advised me that effective immediately my employment was being
changed from full-time to PRN (“pro re nata” which loosely
translates to “as needed.”).
Based on the foregoing, I believe that I have been unlawfully
discriminated against based on my gender, female in violation of the
Equal Pay Act of 1963.
Compl. at 7 (PageID.7). The mere fact that plaintiff’s status was changed from full-time to PRN
does not provide a plausible basis for plaintiff’s claim that she was paid less than similarly situated
men. Therefore, even if plaintiff’s claims were not barred by res judicata, she has plainly failed to
state a claim under the Equal Pay Act. Nor has plaintiff stated a claim under the FLSA because, as
in the previous lawsuit, she does not allege that defendants failed to pay her a minimum wage and/or
for overtime. Accordingly,

IT IS ORDERED that plaintiff’s application to proceed in forma pauperis is granted.

IT IS FURTHER ORDERED that the complaint is dismissed pursuant to §
1915(e)(2)(B) because it is frivolous (i.e., lacks a basis in law) and fails to state a claim.

Dated: April 27, 2021
Detroit, Michigan

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

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