Hunter v. Department of Veteran Affairs et al

Filing 3

Memorandum of Opinion and Order signed by Judge James S. Gwin on 10/21/11. Plaintiff's motion to proceed in forma pauperis is granted and the complaint is dismissed. (Related Docs. 1 , 2 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

REGINALD HUNTER,

Plaintiff,
v.
DEPARTMENT OF VETERANS
AFFAIRS, et al.,
Defendants.

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CASE NO. 1:11 CV 2065

JUDGE JAMES S. GWIN

MEMORANDUM OF OPINION

Pro se Plaintiff Reginald Hunter filed the above-captioned in forma pauperis
Complaint against the Department of Veterans Affairs (“the VA”), Cynthia King, Charles
Columbus, and David Sable.1 Mr. Hunter alleges the VA discriminated against him based on color,
race, disability and in reprisal for prior Equal Employment Opportunity Commission (E.E.O.C.)
claims he filed. He seeks to enjoin any further discrimination and “to be made whole.”
Background
The one page Complaint is devoid of facts chronicling events leading to this lawsuit.

1

Mr. Hunter does not identify in what position or by whom the named Defendants are
employed.

Instead, Mr. Hunter recites a series of statements regarding his dissatisfaction with the E.E.O.C. and
the VA’s alleged practice of exclusively hiring Caucasian employees. He describes himself as a
disabled veteran.
Mr. Hunter states he cannot win a case when the E.E.O.C. just “kicks another
out.”(Compl. at 1.) He questions how another candidate for employment can be more qualified than
he is, when he does not need to be trained. He complains that while his “score” is the lowest, he
believes it was changed by Charles Columbus. Finally, he asserts he had to fight for his job and that
“it has been a witch hunt ever since.” Id. The VA has allegedly blocked him from pursuing
employment “out of town.” Id.
Attached to the Complaint is a Final Agency Decision (“the Decision”) from the
VA’s Office of Employment Discrimination Complaint Adjudication, dated September 15, 2011.
The Decision advises all interested parties that Mr. Hunter has the right, in part, to file a civil action
within 90 days of his receipt of the Decision. The Decision does not, however, contain any relevant
facts related to Mr. Hunter’s Complaint.
Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is
required to dismiss any claim under 28 U.S.C. §1915(e) if it fails to state a basis upon which relief
can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319
(1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d
194, 197 (6th Cir. 1996). For the reasons stated below, this action is dismissed pursuant to 28 U.S.C.
§1915(e).

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Title VII
At the pleading stage, plaintiffs are not required to allege facts to support a prima
facie case of discrimination. See Swierkiewicz v. Sorema, 534 U.S. 506 (2002)(employment
discrimination complaint need not contain specific facts establishing a prima facie case under the
McDonnell Douglas [ v. Green, 411 U.S. 792 (1973)] framework). This standard does not, however,
eliminate the basic tenets of notice pleading.
Title VII of the Civil Rights Act makes it unlawful for an employer "to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Mr. Hunter
does not explain how the Defendants discriminated against him based on his color or race. Instead,
he makes conclusory statements that only Caucasian employees are hired by the VA.
Rule 8 of the Federal Rules of Civil Procedure requires, in relevant part:
(1) a short and plain statement of the grounds upon
which the court's jurisdiction depends. . . (2) a short
and plain statement of the claim showing that the
pleader is entitled to relief; and (3) a demand for
judgment for the relief the pleader seeks. Relief in
the alternative or of several different types may be
demanded.
FED. R. CIV. P. 8(a). The Supreme Court explained that the pleading standard Rule 8 announces
does not require “detailed factual allegations,” but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)(citing Papasan v. Allain, 478 U.S. 265, 286(1986)). A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly,

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550 U.S., at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further
factual enhancement.” Id., at 557.
Even under the liberal notice pleading requirements of Rule 8 and the liberal
perspective in which pro se complaints are generally viewed, Mr. Hunter’s Complaint does not
contain even the minimum requirements of a "short and plain statement" of a claim showing
entitlement to Title VII or disability discrimination relief. See FED. CIV. R. P. 8(a). At a minimum,
he needs to set out what position(s) he applied for, when he applied, who decided not to employ him,
how he was qualified for the position; how the person who received the position was generally less
qualified; whether any statements were made suggesting a discriminatory motivation; and any
circumstances suggesting the failure to hire him was retaliatory. He thus fails to state a claim of
discrimination based on race or color.
Rehabilitation Act
Mr. Hunter’s disability and reprisal discrimination claims similarly lack merit. The
Rehabilitation Act of 1973 prohibits discrimination and retaliation in employment against disabled
persons by federal agencies. See 29 U.S.C. §§ 791, 794 (1994); Smith v. United States Postal Serv.,
742 F.2d 257, 259 (6th Cir.1984). Under Title V, section 504 of the Act, federal agencies are
prohibited from discriminating against the handicapped. This section of the Act declares Congress'
intention that
[n]o otherwise qualified handicapped individual ... shall,
solely by reason of his handicap, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance or under any program or activity
conducted by any Executive agency or by the United States
Postal Service.

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29 U.S.C. § 794(a)(2002). While Mr. Hunter does not have to establish a prima facie case at this
stage, he does need to state a claim for relief. Other than describing himself as a disabled veteran
seeking a job from a federal agency, he alleges no facts stating a claim of disability or reprisal
discrimination. He does not allege, for example, whether he is otherwise qualified to perform the
duties of his job or was excluded because of his handicap. See Maddox v. University of Tenn., 62
F.3d 843, 846 (6th Cir.1995)(elements of prima facie case) (citing Doherty v. Southern College of
Optometry, 862 F.2d 570, 573 (6th Cir.1988), cert. denied, 493 U.S. 810 (1989)). He has thus failed
to state discrimination claim under the Rehabilitation Act.
Because the Rehabilitation Act explicitly incorporates the standards of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §12111 et seq., see 29 U.S.C. § 794(a), courts have
recognized a cause of action for retaliation, which prohibits an employer from taking any adverse
action against “any individual because such individual has opposed any act or practice made
unlawful by this Act....” Hiler v. Brown, 177 F.3d 542, 545 (6th Cir. 1999).
The Sixth Circuit has observed that a plaintiff may "easily" makes out a prima facie
case of retaliation. McClain v. NorthWest Cmty. Corr. Ctr. Judicial Corr. Bd., 440 F.3d 320, 335
(6th Cir.2006) (citation omitted). In McClain, however, the employer conceded three of the four
criteria for a prima facie case of reprisal discrimination.2 Quoting Abbott v. Crown Motor Co., 348
F.3d 537, 542 (6th Cir. 2003), the McClain court noted that even without strong evidence of a causal

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To assert a prima facie case of unlawful retaliation, a plaintiff “must demonstrate by a
preponderance of the evidence that:1) he engaged in activity that Title VII protects; 2) defendant
knew that he engaged in this protected activity; 3) the defendant subsequently took an
employment action adverse to the plaintiff; and 4) a causal connection between the protected
activity and the adverse employment action exists.” Abbott v. Crown Motor Co., 348 F.3d 537,
542 (6th Cir.2003).
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connection between the protected activity and an adverse employment action, it is enough that the
complaint contains these allegations. See McClain, 440 F.3d at 335 (“burden of establishing a prima
facie case in a retaliation action is not onerous”)(citation omitted). Here, Mr. Hunter does not allege
any adverse employment action or any date on which he engaged in a protected activity of which
the VA was aware. He simply alleges is that he filed “prior EEO” actions. This single, conclusory
statement does not state a claim of reprisal discrimination under the Rehabilitation Act.
Conclusion
Based on the foregoing, Mr. Hunter’s Motion to Proceed in forma pauperis is granted
and the Complaint is dismissed pursuant to 28 U.S.C. §1915(e). The Court certifies pursuant to 28
U.S.C. §1915(a)(3) that an appeal from this decision could not be taken in good faith.3
IT IS SO ORDERED.

Dated: October 21, 2011

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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28 U.S.C. § 1915(a)(3) provides:

An appeal may not be taken in forma pauperis if the trial court certifies that it is
not taken in good faith.
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