Whitmore v. Mallory et al

Filing 5

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION re 1 MOTION for Leave to Proceed in forma pauperis: Plaintiff's request to proceed in forma pauperis is GRANTED. it is RECOMMENDED that Plaintiff's Complaint in theabove-captioned acti ons be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Signed by Magistrate Judge Elizabeth Preston Deavers on 10/19/2015. (mas)(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-2838
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

ELMEACO MALLORY,
Defendant.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION
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; Cheryl
Mabry-Thomas, director of the EEOC’s Cleveland, Ohio office; and Exel, Inc., Plaintiff’s former
employer. Plaintiff’s request to proceed in forma pauperis is GRANTED. (ECF No. 1.) All
judicial officers who render services in this action shall do so as if the costs had been prepaid.
28 U.S.C. § 1915(a). This matter before the United States Magistrate Judge for the initial screen
of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to
recommend dismissal of Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious,
fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen,
for the reasons that follow, it is RECOMMENDED that the Court DISMISS this action for
failure to state a claim.

I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

*

*

(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

1

Formerly 28 U.S.C. § 1915(d).
2

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court
holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”
Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April
1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,
has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.
Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,
594 (6th Cir. 1989)).

3

II.
On June 29, 2015, Plaintiff filed an action against Elmeaco Mallory. (See Whitmore v.
Mallory, Case Number 2:15-cv-2468 (the “2468 Case”).) Following the Undersigned’s Report
and Recommendation in which the Undersigned recommended that the Court dismiss the 2468
Case pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim, Plaintiff filed an
amended complaint in which he added Cheryl Mabry-Thomas as a new defendant. (2468 Case,
ECF Nos. 2 and 3.) The Court adopted the Report and Recommendation, finding that even if
Plaintiff’s belatedly filed amended complaint had been considered, dismissal under § 1915(e)(2)
was still warranted given the absence of a private right of action against the EEOC or its
employees for actions taken in connection with their handling of complaints of discrimination.
(2468 Case, ECF No. 4.) Plaintiff subsequently filed the instant action, again naming Mr.
Mallory and adding Ms. Mabry-Thomas, and Exel, Inc. as Defendants. The Undersigned
addresses the viability of Plaintiff’s claims against each of these Defendants in turn.
A.

Defendant Mallory
In the instant action, as in the 2468 Case, Plaintiff again complains of Defendant

Mallory’s handling and disposition of his discrimination charge against his former employer. In
the 2468 Case, the Undersigned recommended dismissal of Plaintiff’s claims against Defendant
Mallory, reasoning 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
4

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.
(2468 Case, July 7, 2015 Report & Rec. 4, ECF No. 2.) Plaintiff’s claims against Defendant
Mallory in the instant action fail for the same reasons set forth in the 2468 Case’s July 7, 2015
Report & Recommendation.
Moreover, the doctrine of res judicata or claim preclusion operates to bar Plaintiff’s
federal claims against Defendant Mallory. Under the doctrine of res judicata or claim
preclusion, “a final judgment on the merits bars further claims by parties or their privies based
on the same cause of action.” Montana v. U.S., 440 U.S. 147, 153 (1979). The United States
Court of Appeals for the Sixth Circuit has instructed that res judicata requires proof of the
following four elements: “(1) a final decision on the merits by a court of competent jurisdiction;
(2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent
action which was litigated or which should have been litigated in the prior action; and (4) an
identity of the causes of action.” Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995).
“The purpose of res judicata is to promote the finality of judgments, and thereby increase
certainty, discourage multiple litigation, and conserve judicial resources.” Westwood Chemical
Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981).
In the instant action, with regard to his claims against Defendant Mallory, Plaintiff
5

simply reasserts the same claims arising out of the same facts that he alleged in the 2468 Case.
In the 2468 Case, the Court dismissed Plaintiff’s purported claims pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). A court’s dismissal of a “complaint pursuant to the provisions of § 1915(e) . .
. constitutes an adjudication on the merits for purposes of res judicata.” Burton v. Cleveland
Ohio Empowerment Zone, 102 F. App’x 461, 463 (6th Cir. 2004) (citing Denton v. Hernandez,
504 U.S. 25, 34 (1992); Smith v. Morgan, 75 F. App’x 505, 507 (6th Cir. 2003)). Thus, the
Undersigned concludes that the doctrine of res judicata operates to bar Plaintiff’s claims against
Defendant Mallory in the instant action and recommends dismissal of these claims for this
additional reason.
B.

Defendant Mabry-Thomas
As the Court noted in the 2468 Case’s Order adopting the Report and Recommendation,

any claim against Defendant Mabry-Thomas relating to actions taken in connection with her
handling of complaints of discrimination fails to state a claim because no private right of action
exists to assert such a claim against the EEOC or its employees. (2468 Case, July 30, 2015
Order 3, ECF No. 4 (citing Jackson, 1990 WL 182029, at *1).) Accordingly, for the reasons set
forth in the 2468 Case’s July 7, 2015 Report and Recommendation and July 30, 2015 Order
(ECF Nos. 2 and 4) and adopted herein by reference, the Undersigned recommends that the
Court dismiss Plaintiff’s claims against Defendant Mabry-Thomas pursuant to § 1915(e)(2).

C.

Exel, Inc.
According to the Complaint, Plaintiff signed an agreement with his former employer,

Defendant Exel, in which he agreed to perform a certain amount of work. Plaintiff alleges that
individuals who signed the agreement were subject to termination if they were unable to perform
6

the minimum work while individuals who did not sign such an agreement were not subject to
termination. He further alleges that in an internal complaint filed with Exel, he complained that
it only enforced the agreement with respect to women and minorities. After Exel denied the
allegations he advanced in his internal complaint, Plaintiff filed a complaint with the EEOC
concerning these agreements. Plaintiff alleges that he was terminated from employment with
Exel after informing them that he was unable to perform the work he agreed to perform. He
alleges that no one could perform the work contemplated in the agreement and that his signing
the agreement “held [him] in involuntary servitude” in violation of the Thirteenth Amendment.
(Compl. 4, ECF No. 1-1.) He appears to allege that the employers used the agreements to
terminate women and minorities. Plaintiff failed to include a demand setting forth the relief he
seeks.
As a threshold matter, in neglecting to articulate the relief he seeks, Plaintiff has failed to
satisfy Federal Rule of Civil Procedure 8(a), which provides, in pertinent part, that “[a] pleading
that states a claim for relief must contain . . . a demand for the relief sought, which may include
relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a)(3).
Notwithstanding this deficiency, the Undersigned finds that Plaintiff has failed to state a
claim on which relief could be granted. Although Plaintiff asserts that his execution of the
agreement with Exel violates the Thirteenth Amendment, the Thirteenth Amendment is wholly
inapplicable to the facts he has alleged. See United States v. Kozminski, 487 U.S. 931, 942
(1988) (“The Thirteenth Amendment declares that ‘[n]either slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction.’”). The Kozminski Court
observed that “in every case in which this Court has found a condition of involuntary servitude,
7

the victim had no available choice but to work or be subject to legal sanction.” Id. Because
Plaintiff has not plausibly alleged that he was compelled by law to continue working for Exel, he
has failed to state a claim under the Thirteenth Amendment.
To the extent Plaintiff seeks to assert a claim under Title VII of the Civil Rights Act
(“Title VII”), his claims also fail. Title VII prohibits an employer from “discriminating against
any individual with respect to his 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). In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the United States Supreme
Court held that in the discrimination context, a prima facie case under McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), “is an evidentiary standard, not a pleading requirement” and that
“the ordinary rules for assessing the sufficiency of a complaint apply.” Id. at 510. The Court
must therefore apply the “plausibility standard in Twombly and Iqbal for assessing whether a
complaint’s factual allegations support its legal conclusions.” Keys v. Humana, Inc., 684 F.3d
605, 610 (6th Cir. 2012) (citations omitted).
Applying the foregoing authority here, the Undersigned concludes that Plaintiff has failed
to allege facts from which this Court could “draw the reasonable inference,” Iqbal, 556 U.S. at
678, that Defendant is liable for violating Title VII. Although Plaintiff conclusorarily alleges
that Exel used the agreements to terminate members of the protected class, he offers no
allegations in his Complaint upon which the Court could draw the inference that he personally
had been terminated because of his gender or race. See Sam Han v. Univ. of Dayton, 541 F.
App’x 622, 627 (6th Cir. 2013) (upholding trial court’s dismissal of employment discrimination
pursuant to Rule 12(b)(6) where the plaintiff had failed to “plausibly show that the . . . adverse
employment decision . . was a result of discrimination based upon his race or his gender,”
8

explaining that the “Court is not required to accept the inferences drawn by [the] [p]laintiff”);
See Keys, 684 F.3d at 610 (the plausibility standard “applies to causation in discrimination
claims”). To the contrary, Plaintiff’s Complaint alleges that he was terminated because he
informed his employer that he could not perform the work that he agreed to perform. Further,
Plaintiff fails to identify any relevant dates or the genders and races of the decisionmaker or his
comparators and likewise fails to include any information concerning the amount of work he was
performing as compared the work his comparators performed.
In sum, because Plaintiff has failed to sufficiently plead a plausible claim for relief
against Defendant Exel, it is recommended that the Court dismiss his claims against Exel
pursuant to § 1915(e)(2).
III.
For the reasons set forth above, it is RECOMMENDED that Plaintiff’s Complaint in the
above-captioned actions be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review of by the District Judge
and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l
9

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the
magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding
that defendant waived appeal of district court’s denial of pretrial motion by failing to timely
object to magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation
omitted)).

IT IS SO ORDERED.

Date: October 19, 2015

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

10