Burnette v. Shinseki et al

Filing 3

Opinion and Order signed by Judge James S. Gwin on 3/23/16 granting the plaintiff's motion to proceed in forma pauperis and dismissing the complaint pursuant to 28 U.S.C. Section 1915(e)(2)(B). The Court further certifies that an appeal from this decision could not be taken in good faith. (Related Docs. 1 and 2 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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DONNA BURNETTE,
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Plaintiff,
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vs.
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SECRETARY, DEPARTMENT
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OF VETERANS AFFAIRS,
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Defendant.
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CASE NO. 1:16 CV 145

OPINION & ORDER

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Pro se plaintiff Donna Burnette has filed this in forma pauperis civil action against the
Secretary of the Department of Veterans Affairs pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e. She seeks “monetary damages for backpay, discrimination and
nonselection w/ interest, sanctions and 401k al[l]otment, and distress.” (Doc. No. 1 at 6.)
Plaintiff’s application to proceed in forma pauperis (Doc. No. 2) is granted; however,
for the reasons stated below, her complaint is dismissed pursuant to 28 U.S.C. §1915(e)(2)(B).
Standard of Review
Federal district courts are required under 28 U.S.C. §1915(e)(2)(B) to screen and dismiss
before service any in forma pauperis action the court determines is frivolous or malicious, fails
to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who
is immune from such relief. See Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010).
A complaint fails to state a claim on which relief may be granted when it lacks
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Id. at 470-71 (holding “that the dismissal standard articulated in [Ashcroft v. Iqbal, 556 U.S. 662
(2009)] and [Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)] governs dismissals for
failure to state a claim” under §1915(e)(2)(B)). The court must construe the complaint in the
light most favorable to the plaintiff, accept its well-pleaded allegations as true, and determine
whether it presents plausible claims. Although a complaint need not contain “detailed” factual
allegations, its “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. “[A] plaintiff’s obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Id. Rather, the plaintiff’s pleading must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Iqbal, 556 U.S. at 677-78.
Further, although pro se pleadings are generally liberally construed and held to less
stringent standards than formal pleadings drafted by lawyers, Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), a pro se plaintiff
must still meet basic pleading requirements, and a court is not required to conjure allegations on
her behalf. See Erwin v. Edwards, 22 F. App’x 579, 580 (6th Cir. 2001).
Analysis
The plaintiff’s complaint, even liberally construed, fails to allege a plausible claim
against the defendant under Title VII.
Title VII provides that it is 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 his
compensation, terms, conditions, or privileges of employment, because of such individual's race,

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color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1).1 The plaintiff does not
allege any facts in her complaint supporting a plausible inference that the Department of
Veterans Affairs terminated her, or otherwise discriminated against her with respect to the terms
or conditions of employment, because of her race, color, religion, sex, or national origin as
prohibited by Title VII. The only allegations she sets forth in her complaint are that “the agency
failed to adhere to Judge Porter’s order supplementing the record by 8-13-14 to plaintiff” and
“failed to address back pay included in this claim which had a 3 [year] time frame for willful
exclusion once [the] agency was informed.” (Doc. No. 1 at 5.) These unclear allegations,
which apparently pertain to some other unidentified case, are insufficient to allege a plausible
Title VII claim against the defendant in this case. The allegations do not support a plausible
inference that the defendant discriminated against the plaintiff on the basis of any characteristic
protected by Title VII, and the Court is not required to conjure allegations on the plaintiff’s
behalf.

1

To establish a prima facie case of discrimination under Title VII indirectly through
circumstantial evidence, a plaintiff must show she is a member or a protected class; suffered an
adverse employment action; was qualified for the position; and that a similarly-situated person
outside of the protected class was treated more favorably than she was. Younis v. Pinnacle Airlines,
Inc., 610 F.3d 359, 363 (6th Cir. 2010).
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Conclusion
Accordingly, the plaintiff’s complaint is hereby dismissed pursuant to 28
U.S.C.§1915(e)(2)(B). The Court further certifies, pursuant to 28 U.S.C. §1915(a)(3), that an
appeal from this decision could not be taken in good faith.
IT IS SO ORDERED.

Dated: March 23, 2016

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

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