Whitmore v. Mallory

Filing 4

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge Gregory L. Frost on 7/30/15. (kn)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICKY WHITMORE,
Plaintiff,
Civil Action 2:15-cv-2468
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

v.

ELMEACO MALLORY,
Defendant.
ORDER
Plaintiff, Ricky Whitmore, an Ohio resident who is proceeding without the assistance of
counsel, brings this action against Elmeaco Mallory, an investigator for the Equal Employment
Opportunity Commission (“EEOC”) who handled Plaintiff’s discrimination claims. This matter
is before the Court for consideration of the United States Magistrate Judge’s July 7, 2015 Report
and Recommendation. (ECF No. 3.) The Magistrate Judge conducted an initial screen of
Plaintiff’s Complaint as required by 28 U.S.C. § 1915(e)(2) and recommended that the Court
dismiss this action for failure to state a claim. For the reasons that follow, the Court ADOPTS
the Report and Recommendation and DISMISSES this action for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
In the Report and Recommendation, the Magistrate Judge first set forth the standards
governing initial screens, which the Court incorporates by reference. In recommending
dismissal of this action, the Magistrate Judge reasoned as follows:
According to the Complaint, Plaintiff filed a discrimination charge against
his former employer with the EEOC. Defendant was assigned to investigate
Plaintiff’s charge. Plaintiff filed this instant action against Defendant because he is
dissatisfied with Defendant’s investigation and resolution of his charge against his

former employer. In terms of relief, Plaintiff asks this Court to construe the terms
of an agreement he apparently entered into with his former employer and also to
declare that Defendant improperly handled his claim against his former employer.

Plaintiff’s dissatisfaction with Defendant’s handling of his discrimination
charges fails to state a claim upon which relief may be granted because no private
right of action to assert such a claim exists. Darby v. United States Dep’t of Energy,
No. 05-4325, 2006 WL 7348136, at *6 (6th Cir. June 9, 2006) (holding that “[t]he
[plaintiff’s] claim lacks merit because [she] has no cause of action against the EEOC
for the alleged improper handling of her complaints”) (citing Ward v. EEOC, 719
F.2d 311, 313–14 (9th Cir. 1983) (no private right of action against EEOC for
unsatisfactory resolution of discrimination complaint)); Jackson v. Frank, No. 901266, 1990 WL 182029, at *1 (6th Cir. Nov. 23, 1990) (“The district court properly
dismissed [the plaintiff’s] claims against [the EEOC investigator] as the courts have
consistently recognized that the EEOC and its employees are not subject to suit for
actions taken in their review of complaints for discrimination.” (citations omitted)).
Accordingly, it is RECOMMENDED that the Court DISMISS this action for
failure to state a claim.
(Id. at 4.) In addition, the Report and Recommendation specifically advised Plaintiff that the
failure to object to the Report and Recommendation within fourteen days of the Report would
result in a “waiver of the right to de novo review . . . by the District Judge and waiver of the right
to appeal the judgment of the District Court.” (Id. at 5.)
Plaintiff failed to timely file an objection to the Report and Recommendation.
Subsequent to the deadline for filing objections to the Report and Recommendation,
Plaintiff filed an Amended Complaint. (ECF No. 3.) Like his original Complaint, Plaintiff’s
Amended Complaint seeks to assert claims against EEOC investigator Elmeaco Mallory arising
from Mr. Mallory’s handling of Plaintiff’s discrimination charges against his former employer.
Plaintiff also names Cheryl Mabry-Thomas, the director of the EEOC’s Cleveland office, as a
defendant, but does not mention her in any allegations.
As the Magistrate Judge advised in the Report and Recommendation, Plaintiff’s failure to
timely file objections constitutes a waiver of his right to a further review of the Magistrate
2

Judge’s recommendations. United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). The
Court therefore ADOPTS the July 7, 2015 Report and Recommendation. (ECF No. 3.) Even if
the Court were to consider Plaintiff’s belatedly filed Amended Complaint, dismissal under §
1915(e)(2) is still required. As the Magistrate Judge explained, no private right of action exists
against the EEOC or its employees for actions taken in connection with their handling of
complaints of discrimination. Jackson, 1990 WL 182029, at *1. Accordingly, the Court
DISMISSES this action for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The Clerk shall enter judgment accordingly and terminate this case on the docket records of the
United States District Court for the Southern District of Ohio, Eastern Division. For the reasons
set forth above and in the Report and Recommendation, the Court hereby CERTIFIES pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal of this Order is not taken in good faith.
IT IS SO ORDERED.

/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

3