Hinkle-Moore v. DeJoy

Filing 24

SUPPLEMENTAL OPINION AND ORDER denying 16 Motion to Dismiss for Failure to State a Claim. Plaintiff's 23 Second Amended Complaint is now the operative complaint in this action. The Court SETS Defendant's deadline to answer or otherwise respond to the Second Amended Complaint as November 6, 2024. Signed by Magistrate Judge Kimberly A. Jolson on 10/23/2024. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TAMARA HINKLE-MOORE,
Plaintiff,
v.

Civil Action 2:24-cv-262
Magistrate Judge Kimberly A. Jolson

POSTMASTER GENERAL
LOUIS DEJOY,
Defendant.
SUPPLEMENTAL OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s Amended
Complaint (Doc. 16).

For the following reasons, the Motion is DENIED.

The Court SETS

Defendant’s deadline to answer or otherwise respond to the Second Amended Complaint (Doc. 23) as
November 6, 2024.
I.

BACKGROUND
This matter, for which the parties consented to Magistrate Judge jurisdiction under 28 U.S.C.

§ 636(c), alleges employment discrimination against Louis DeJoy, Postmaster General of the United
States Postal Service (“USPS”). (See generally Doc. 23 (second amended complaint)). In brief,
Plaintiff Tamara Hinkle-Moore claims she suffered discrimination at work because of her race and age.
(Id. (alleging violations of Title VII of the Civil Rights Act, the Age Discrimination in Employment
Act (“ADEA”), and Title 4112 of the Ohio Revised Code)); see 42 U.S.C. §§ 2000(e), et seq.; 29 U.S.C.
§§ 626, et seq.; Ohio Rev. Code § 4112, et seq.
On January 8, 2022, Defendant hired and assigned Plaintiff, a Black woman born in 1964, to
work at a post office in Pickerington, Ohio. (Doc. 23 at ¶¶ 10–11). Though she does not expressly

name her position, it seems that Plaintiff worked as a mail carrier. The position had a three-month
probationary period (id. at ¶ 13), and Plaintiff alleges that Defendant discriminated against her on the
basis of race and age during this trial time. Examples include: (1) Plaintiff’s younger white coworkers
received more training than she did; (2) Defendant refused to reinspect Plaintiff’s carrier route that was
previously assigned to another employee and then compared Plaintiff’s productivity to that younger,
white employee; (3) Defendant made Plaintiff provide her electronic passwords to other white
employees who used them without discipline; (4) Plaintiff’s work scanner did not properly record her
work, route time, and “other parts of her employment” because her supervisor refused to replace it even
though he replaced her white coworkers’ scanners; (5) Defendant relied on the improperly recorded
data when evaluating Plaintiff even when other younger and white coworkers’ improperly recorded
data was not considered; and (6) Defendant did not pay Plaintiff for several days she worked even
though her white coworkers were paid for similar time. (Id. at ¶¶ 15–16, 22–23, 29).
After the probationary period ended on April 19, 2022, the Postmaster of the Pickerington Post
Office (“the Postmaster”), a white woman, notified Plaintiff that her performance and attendance were
unsatisfactory, and she would be terminated. (Id. at ¶ 13; see also Doc. 16-2 at 2 (notice of termination
“effective immediately upon [Plaintiff’s] receipt”)). Plaintiff then contacted the Postmaster who told
her that “she was indeed being fired unless she agreed to be transferred to a different facility.” (Doc.
23 at ¶¶ 17, 19). Plaintiff agreed, and Defendant transferred her to a facility in nearby Columbus. (Id.
at ¶ 19). When she was transferred, Plaintiff says she lost her seniority that allowed her to bid on
particular routes or have certain days off. (Id. at ¶ 20).
At base, Plaintiff claims Defendant discriminatorily disciplined and transferred her when white
and younger employees were not treated that way. (Id. at ¶¶ 23–24, 30–31). Plaintiff filed a complaint
with the USPS Equal Opportunity Office (“EEO”), which issued a Notice of Final Action on October
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24, 2023. (See Doc. 23-1). Plaintiff then filed this lawsuit. (See Doc. 1). Plaintiff seeks compensatory
damages under Title VII, the ADEA, and Ohio law; costs; and fees. (Doc. 23 at 7). Defendant
subsequently filed a motion to dismiss Plaintiff’s Amended Complaint in its entirety for failure to state
a claim upon which relief may be granted. (Doc. 16; see Doc. 20 (Plaintiff’s response), Doc. 21
(Defendant’s reply)).
The Court partially ruled on Defendant’s motion to dismiss. (See Doc. 22). Specifically, the
Court allowed Plaintiff’s race discrimination claim based on her alleged loss of pay to proceed. (Id.).
It held the remainder of the motion to dismiss in abeyance, allowing Plaintiff time to amend her
complaint to fix deficiencies with the remainder of her race discrimination claim and her age
discrimination claim. (Id.). Plaintiff has now filed her Second Amended Complaint (Doc. 23).
II.

STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure requires that a complaint “state a claim

to relief that is plausible on its face” to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,
663–64, 678 (2009); Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). In reviewing the complaint,
a court must construe it in favor of the plaintiff and accept all well-pleaded factual allegations as true.
Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556). On the other hand, a complaint that consists of “labels
and conclusions” or “a formulaic recitation of the elements of a cause of action” is insufficient.
Twombly, 550 U.S. at 555; see also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (noting
that a plaintiff must give specific, well-pleaded facts, not just conclusory allegations). In other words,
while “detailed factual allegations” are not required under Fed. R. Civ. P. 8(a)(2)’s “short and plain
statement” rule, the law “demands more than an unadorned, the-defendant-unlawfully-harmed-me
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accusation.” Iqbal, 556 U.S. at 677–78 (quotation marks and citations omitted).
III.

DISCUSSION
The Court considers Plaintiff’s race discrimination claim concerning her transfer and her age

discrimination claim in turn. In doing so, the Court INCORPORATES its previous order (Doc. 22),
and SUPPLEMENTS it with the following.
A.

Race Discrimination Claim

To establish a prima facie case of employment discrimination under Title VII, a plaintiff must
show that (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3)
she was qualified for the position in question; and (4) she was treated differently from similarly situated
individuals outside of her protected class. Smith v. City of Salem, Ohio, 378 F.3d 566, 570 (6th Cir.
2004). But a plaintiff does not have to establish the prima facie case in order to survive a motion to
dismiss. Keys v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012). “The ‘plausibility’ standard in
Twombly and Iqbal for assessing whether a complaint’s factual allegations support its legal conclusions
. . . applies to causation in discrimination claims.” Id. at 610 (citation omitted). “Thus, although the
Amended Complaint need not present ‘detailed factual allegations,’ it must allege sufficient ‘factual
content’ from which a court, informed by its ‘judicial experience and common sense,’ could ‘draw the
reasonable inference’” that Defendant discriminated against Plaintiff “with respect to [her]
compensation, terms, conditions, or privileges of employment, because of” her race. Id. (citations
omitted); see 42 U.S.C. § 2000e–2(a)(1).
In other words, a plaintiff does not need to allege “facts specifically indicating that [she] could
carry the burden she might ultimately bear” under the burden-shifting framework. Ingram v. Regano,
No. 1:19-CV-2926, 2021 WL 1214746, at *9 (N.D. Ohio Mar. 31, 2021), aff’d, No. 21-3342, 2022 WL
320216 (6th Cir. Feb. 3, 2022), and aff’d, No. 23-3222, 2023 WL 6634262 (6th Cir. Oct. 12, 2023); see
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also Savel v. MetroHealth Sys., 96 F.4th 932, 943 (6th Cir. 2024) (“A plaintiff does not have to allege
specific facts establishing a prima facie case of discrimination in their complaint.”). Still, “courts use
the prima facie elements as guideposts to navigate through a plaintiff’s plausible claims of relief.”
Downs v. United States Postal Serv., No. 3:19-CV-00057-RGJ, 2019 WL 3947921, at *3 (W.D. Ky.
Aug. 21, 2019) (citations omitted).
The Court previously allowed Plaintiff to amend her complaint to address pleading deficiencies
concerning her transfer. (See Doc. 23 at ¶¶ 17, 19–20, 24; see Doc. 22 at 9–10 (describing Plaintiff’s
allegations and the events leading to her transfer)).

In that order, the Court highlighted that

“reassignments without salary or work hour changes do not ordinarily constitute adverse employment
decisions in employment discrimination claims.” Kocsis, 97 F.3d at 885–86; Timmons v. Boehringer
Ingelheim Corp., 132 F. App’x 598, 600 (6th Cir. 2005) (“A transfer at no loss of title, pay or benefits
does not amount to an adverse employment action.”). But absent a salary or work hour change, the
reassignment “can nonetheless be considered an adverse employment action where there is evidence
that the employee received a ‘less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a particular situation.’”
Spees, 617 F.3d at 391. The Court pointed out that in her First Amended Complaint, Plaintiff failed to
allege that her transfer resulted in any of these or other harms. (Doc. 22 at 9–10). So, Plaintiff had not
alleged that her transfer to a different facility was an adverse employment action.
By contrast, Plaintiff’s Second Amended Complaint alleges harm connected with her transfer.
She alleges that when she was transferred to the Columbus facility “she lost her seniority. As a result
of the loss of seniority, Plaintiff could no longer bid on certain routes or have certain days off.” (Doc.
23 at ¶ 20). At the pleadings stage, this is sufficient to allege an adverse action. See Muldrow v. City
of St. Louis, 601 U.S. 346, 350 (2024) (“Although an employee must show some harm from a forced
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transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test.”).
Accordingly, and because the Court has already addressed the sufficiency of the remaining
aspects of this claim (Doc. 22 at 5–12), the Court DENIES Defendant’s Motion to Dismiss with respect
to Plaintiff’s race discrimination claims. See Savel v. MetroHealth Sys., 96 F.4th 932, 943 (6th Cir.
2024) (holding because the plaintiffs sufficiently stated a claim under Title VII, they sufficiently stated
a claim under Ohio Revised Code § 4112).
B.

Age Discrimination Claim

“To establish a prima facie case of age discrimination, the ADEA plaintiff ‘must show that: (1)
she was over 40 years old; (2) she suffered an adverse employment action; (3) she was qualified for the
position she held; and (4) she was either replaced by a person outside the protected class or treated
differently than similarly-situated individuals.’” Beckett v. KHB Lonestar LLC, No. 2:23-CV-520,
2024 WL 1930829, at *3 (S.D. Ohio May 2, 2024) (citing House v. Rexam Beverage Can Co., 630 F.
App’x 461, 462 (6th Cir. 2015)). An ADEA claim is held to the same pleading standard as that of a
Title VII race discrimination claim. That is, Plaintiff’s complaint “need not present ‘detailed factual
allegations,’” but “it must allege sufficient ‘factual content’ from which a court, informed by its
‘judicial experience and common sense,’ could ‘draw the reasonable inference’” that Defendant
discriminated against Plaintiff with respect to her age. House, 630 F. App’x at 463 (citing Keys, 684
F.3d at 610); Iqbal, 556 U.S. at 663–64; Twombly, 550 U.S. at 570; see also McNeal, 2024 WL
4262532, at *9 (noting Title VII’s generally applicable statutory language is mirrored in the ADEA).
The Court previously noted several deficiencies with Plaintiff’s age discrimination claims
including: (1) her allegation that her supervisor denied her request to reinspect her route then compared
her route time to a younger, former employee did not properly alleged claim under the ADEA; (2) her
allegation that a younger employee received more training than she did failed to allege any material
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impact on the terms or conditions of her employment; and (3) her allegations related to her age generally
lacked factual specificity to support of her claim. (Doc. 22 at 12–14). The Court finds that Plaintiff’s
Second Amended Complaint fails to cure these defects, though Plaintiff’s ADEA claim may proceed
for other reasons.
To begin, Plaintiff amended the portion of her complaint alleging that Defendant refused to
reinspect her mail route. She again alleges that the route was previously worked by a younger
employee, Defendant compared her route time to that employee’s, and Defendant used her route time
as a basis for her transfer. (See Doc. 23 at ¶¶ 15, 22). The Court previously noted this did not properly
allege an adverse action. (Doc. 22 at 13). In her Second Amended Complaint, Plaintiff briefly adds
that Defendant did not deny other younger employees’ requests to have their routes reinspected. (Doc.
23 at ¶ 15, 22). However, this does not address the Court’s previous discussion that comparing
Plaintiff’s route time to a younger employee for the same route, even if it was used as a basis for
transfer, did not allege a claim under the ADEA. (Doc. 22 at 13 (discussing that the ADEA does not
require an employer accord special treatment for employees over the age of forty years old)). So,
ultimately, Plaintiff still has not alleged these circumstances present an “adverse change in the terms or
conditions of . . . employment because of [the] employer’s conduct.’” Policastro v. Nw. Airlines, Inc.,
297 F.3d 535, 539 (6th Cir. 2002) (citation omitted); cf. Ortiz v. Hershey Co., No. 11-3123-STA-TMP,
2013 WL 5538657, at *9 (W.D. Tenn. Oct. 7, 2013) (holding increased workload did not constitute a
materially adverse employment action), aff’d, 580 F. App’x 352 (6th Cir. 2014). Neither is the fact that
Plaintiff’s route may have been more work than the routes of the younger employees an adverse
employment action. See Dickson v. Green Dot Pub. Sch. Tenn., No. 2:22-cv-02070, 2022 WL 4285554,
at *3 (W.D. Tenn. June 27, 2022) (“Both the Sixth Circuit and other courts within it have determined
that allegedly inequitable job duties . . . do[es] not constitute materially adverse employment actions
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under the ADEA or other employment discrimination laws.”), report and recommendation adopted,
No. 2:22-cv-2070, 2022 WL 3931462 (W.D. Tenn. Aug. 31, 2022). And Plaintiff’s new allegation that
Defendant reinspected the routes of younger employees does not change this and also generally lacks
factual specificity. See, e.g., Smith v. Wrigley Mfg. Co., LLC, 749 F. App’x 446 (6th Cir. 2018); Downs
v. Bel Brands USA, Inc., 613 F. App'x 515 (6th Cir. 2015). In short, on these allegations alone, Plaintiff
has failed to properly allege a claim of age discrimination.
Next, concerning her training, Plaintiff alleges that “[a]lthough hired at the same time a
Caucasian male under the age of 40 received more training than Plaintiff. Plaintiff’s lack of training
resulted in her transfer and loss of seniority.” (Doc. 23 at ¶ 15; see also id. at ¶ 22). As the Court
previously noted, “[c]ourts have held that for a failure to train to constitute an adverse action, an
employee must show that ‘[her] inability to attend such training had [a] material impact on the terms
and conditions of [her] employment.’” Merriweather v. United States Steel Corp., No. 2:18-CV-10664,
2019 WL 4072645 (E.D. Mich. July 19, 2019) (citation omitted), report and recommendation adopted,
No. 18-10664, 2019 WL 4054926 (E.D. Mich. Aug. 28, 2019); see also Lindsey v. Whirlpool Corp.,
295 F. App’x 758, 768 (6th Cir. 2008) (“Defendant’s failure to provide Plaintiff with extra training
does not constitute an adverse employment action under [the definition of adverse employment actions
in Title VII discrimination cases].”); Johnson v. United Parcel Serv., Inc., 117 F. App’x 444, 450 (6th
Cir. 2004).
Here, Plaintiff arguably gestures at such a material impact on the terms and conditions of her
employment when she alleges the lack of training resulted in her transfer. But this allegation still lacks
the requisite factual specificity for the Court to draw a reasonable inference of age discrimination. It is
wholly unclear, from her brief allegation, how Plaintiff’s training resulted in her transfer and loss of
seniority. For example, she provides no facts linking her lack of training to her transfer or her
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unsatisfactory evaluation.

(See Doc. 16-2 (the notice citing unsatisfactory performance and

unsatisfactory attendance as the reasons for Plaintiff’s termination (which turned into a transfer))). Nor
does she say what the training involved, so the Court could infer how the training may have impacted
her performance. In other words, on these allegations alone, Plaintiff fails to allege “sufficient ‘factual
content’ from which a court, informed by its ‘judicial experience and common sense,’ could ‘draw the
reasonable inference’” that Defendant discriminated against Plaintiff with respect to her age. House,
630 F. App’x at 463 (citing Keys, 684 F.3d at 610); see also Iqbal, 556 U.S. at 663–64; Twombly, 550
U.S. at 570.
Yet, Plaintiff’s Second Amended Complaint differs from her First Amended Complaint in
another relevant way. Plaintiff previously alleged that she reported her scanner was not working but
her white supervisor, Coburn Morgan, refused to replace it at the same time that he replaced the
scanners belonging to other white coworkers. (Doc. 14 at ¶¶ 15, 27). That data was used to substantiate
Plaintiff’s performance and formed the basis for discipline and subsequent transfer by her white
supervisor, Tracy Hunt. (Id.). The Court previously noted that this allegation, albeit brief, provided
details that gave Defendant fair notice of her claims. See Swierkiewicz v. Sorema N. A., 534 U.S. 506,
514 (2002) (finding a complaint gave fair notice of the basis for the plaintiff’s discrimination claims
when it detailed events leading to plaintiff’s termination, provided relevant dates, and included the ages
and nationalities of some relevant persons); Keys, 684 F.3d at 610 (finding a plaintiff’s complaint
sufficient when it detailed specific events when she was treated differently than her white counterparts,
and it identified supervisors and relevant persons by race and name or title); Katib v. USF Holland LLC,
640 F. Supp. 3d 788, 794 (N.D. Ohio 2022) (citing Abdalla v. Tenn. Dep’t of Corr., No. 2:20-CV02041, 2021 WL 27305, at *7 (W.D. Tenn. Jan. 4, 2021)) (finding a complaint provided the “necessary
factual context” when the plaintiff alleged non-Arab and non-Middle Eastern individuals were treated
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differently than him). As discussed above, because Plaintiff has alleged her discipline and transfer
resulted in loss of seniority, the Court is allowing her race discrimination claim to proceed on these
allegations.
Now Plaintiff says that her age also factored into these circumstances and that younger
employees were not treated similarly. She states, “[w]hen other younger [employees’] scanners did not
properly record their work, Defendant did not use that data to evaluate their performance.” (Doc. 23 at
¶ 25; see also id. at ¶ 15 (“Defendant did not rely on improperly documented data to substantiate other
younger . . . employees’ performance.”)) Much like her race discrimination claim, these allegations
contain few factual details. But unlike her allegations concerning her white coworkers’ treatment,
Plaintiff does not allege that younger employees’ requests for working scanners were granted at the
same time hers was denied. (See Doc. 22 at 9–10 (discussing the domino falling nature of the events
leading to Plaintiff’s discipline and transfer)). In short, this is a borderline question.
Yet Plaintiff still alleges that (1) she suffered an adverse action, and (2) younger employees
were treated differently than she was. Specifically, she alleges that younger employees, which she
defines elsewhere as under 40, received favorable treatment when their scanner data was inaccurate.
(Doc. 23 at ¶ 22). Their data was not used to evaluate their performance, whereas Plaintiff’s inaccurate
data was, leading to her transfer and loss of seniority. (Id. at ¶¶ 22–23, 29). Construing the complaint
in Plaintiff’s favor, this allows the Court to, “informed by its ‘judicial experience and common sense, .
. . draw the reasonable inference’” that Defendant discriminated against Plaintiff with respect to her
age. House, 630 F. App’x at 463 (citation omitted); Beckett, No. 2024 WL 1930829, at *3 (noting that
citing an example of younger employees receiving favorable treatment helped to properly allege a claim
under the ADEA). Simply put, at the motion to dismiss stage, Plaintiff has done enough―though just
barely.
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Accordingly, the Court DENIES Defendant’s Motion to Dismiss with respect to Plaintiff’s age
discrimination claims as well. See Buford v. Am. Red Cross, No. 3:24 CV 91, 2024 WL 2215942, at
*2 (N.D. Ohio May 16, 2024) (noting claims brought under Ohio Revised Code § 4112 alleging
discrimination on the basis of age “are analyzed under the same standards as federal claims brought
under . . . the [ADEA]” on a motion to dismiss).
***
In sum, Plaintiff’s race discrimination claims and age discrimination claims may proceed.
Plaintiff’s Second Amended Complaint (Doc. 23) is now the operative complaint in this action.
Defendant shall have two weeks in which to answer or otherwise respond to the Second Amended
Complaint.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint

(Doc. 16) is DENIED. The Court SETS Defendant’s deadline to answer or otherwise respond to the
Second Amended Complaint (Doc. 23) as November 6, 2024.

IT IS SO ORDERED.

Date: October 23, 2024

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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