Ross v. Teleperformance USA Inc et al

Filing 3

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's Complaint (Doc. 2 ) against Teleperformance USA, Inc. not be dismissed. 2. Plaintiff's state-law claims against Mynette Murrell, Troy Naboors, Brian Harris, Br ian Throckmorton, Calbert Duvall, Charles Tyree, Janette Jack, and Chris Stewart not be dismissed. 2. Plaintiff's Title VII claims against Mynette Murrell, Troy Naboors, Brian Harris, Brian Throckmorton, Calbert Duvall, Charles Tyree, Janette J ack, and Chris Stewart be DISMISSED. 3. The United States Clerk of Court be directed to serve a copy of the Complaint and attached Exhibits together with a summons upon each Defendant named in the Complaint. All costs of service to be advanced by the United States. Objections to R&R due by 3/1/2013. Signed by Magistrate Judge Sharon L Ovington on 2/12/13. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KEESYA D. ROSS,

:

Plaintiff,

:
:

vs.
TELEPERFORMANCE USA,
INC., et al.,

Case No. 3:13cv00038
District Judge Timothy S. Black
Chief Magistrate Judge Sharon L. Ovington

:
:

Defendants.

REPORT AND RECOMMENDATIONS1

Plaintiff Keesya D. Ross, a resident of the Fairborn, Ohio, brings this case pro se against
her former employer, Teleperformance USA, Inc., and many of her former fellow employees,
supervisors, or managers. Plaintiff has submitted a copy of the Notice of Right to Sue she
received from the United States Equal Employment Opportunity Commission. (Doc. #2,
PageId at 40).
The Court previously granted Plaintiff’s Application to Proceed in forma pauperis under
28 U.S.C. §1915. This case is presently before the Court for a sua sponte review to determine
whether Plaintiff’s Complaint, or any portion of it, should be dismissed because it is frivolous,
malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief
from a named defendant who is immune from such relief. If the Complaint suffers from one or

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Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

more of these deficiencies, it must be dismissed under 28 U.S.C. §1915(e)(2)(B).
By enacting the original in forma pauperis statute, 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.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992)(quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress authorized the federal courts to sua sponte dismiss
an in forma pauperis Complaint if satisfied that it raises frivolous or malicious claims. Denton,
504 U.S. at 31; see 28 U.S.C. §1915(e)(2)(B).
Reviewing an in forma pauperis Complaint under §1915(e)(2)(B), the Court asks
whether it raises a claim with a rational or arguable basis in fact or law; if not, it is frivolous or
malicious and subject to dismissal. See Neitzke, 490 U.S. at 328-29; see also Lawler v.
Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). A Complaint has no arguable legal basis when,
for example, the defendant is immune from suit or when the plaintiff claims a violation of a
legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable
factual basis when the allegations are delusional or irrational. See Denton, 504 U.S. at 32-33;
see also Lawler, 898 F.2d at 1199.
Congress has also authorized the sua sponte dismissal of an in forma pauperis
Complaint that fails to state a claim upon which relief may be granted or that seeks monetary
relief from a defendant who is immune from such relief in this Court. 28 U.S.C.
§1915(e)(2)(B)(ii-iii). The Court’s preliminary review of Plaintiff’s pro se Complaint assumes
the truth of her allegations and construes them liberally in her favor. See Herron v. Harrison,
203 F.3d 410, 414 (6th Cir. 2000); see also Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995).
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Plaintiff’s Complaint in the instant case does not raise malicious, delusional, or wholly
irrational allegations. See Brand v. Motley, 526 F.3d 921, 923 (6th Cir. 2008); see also Jones v.
Schmaker, 1999 WL 1252870 at 1 (6th Cir. 1999) (“Examples of claims lacking rational facts
include a prisoner’s assertion that Robin Hood and his Merry Men deprived prisoners of their
access to mail or that a genie granted a warden’s wish to deny prisoners any access to legal
texts.” (citing Lawler, 898 F.2d at 1198-99)). Plaintiff instead raises factual allegations
concerning sex and race discrimination, and retaliation, under Title VII of the Civil Rights Act
of 1964. A Title VII Plaintiff is not required to plead each and every element of a prima facie
case of Title VII discrimination. See Lindsay v. Yates, 498 F.3d 434, 439 (6th Cir.
2007)(discussing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). “The prima facie case
under McDonnell Douglas2 ... is an evidentiary standard, not a pleading requirement.’”
Lindsay, 498 F.3d at 439 (quoting Swierkiewicz, 534 U.S. at 510). “Thus ... an employmentdiscrimination plaintiff satisfies her pleading burden by drafting ‘a short and plain statement of
the claim’ consistent with Federal Rule of Civil Procedure 8(a). Provided that the plaintiff
‘give[s] the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests,’ the complaint must be upheld.” Lindsay, 498 F.3d at 439 (internal citations omitted).
In light of the many specific factual allegations Plaintiff’s Complaint asserts, she has
satisfied her burden to provide fair notice of the grounds for her race and sex claims as well as
her retaliation claim against Defendant Teleperformance USA, Inc. To require Plaintiff to

2

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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allege additional facts at this point in the case review would be the equivalent of requiring her
to allege each fact of a prima facie case under Title VII. Since this would be contrary to
Swierkiewicz and since – as the Supreme Court explained in Swierkiewicz – any doubt about
this may be resolved by one of the methods provided by the Federal Rules of Civil Procedure,
such as a motion for more definite statement under Fed. R. Civ. P. 12(e), see Swierkiewicz, 434
U.S. at 514, Plaintiff’s Complaint against her former employer is not subject to sua sponte
dismissal.
In contrast, it is clear from the allegations set forth in the Complaint that Title VII
provides no basis for her claims of employment discrimination against the individual
Defendants in their individual or personal capacities. Title VII does not provide a cause of
action against individuals who are not “employers” within the meaning of this statute. See
Wathen v. General Electric Co., 115 F.3d 400, 404-05 (6th Cir. 1997). Because nothing in the
Complaint indicates that any of the individuals were Plaintiff’s “employer” within the meaning
of Title VII, her claims against them fail as a matter of law. See id.
Lastly, Plaintiff alleges that the Teleperformance USA, Inc. and the individual
defendants gave false statements about her to the Equal Employment Opportunity Commission
and in connection with her application for unemployment benefits. Accepting Plaintiff’s
allegations as true and construing her Complaint liberally in her favor, she asserts state-law
claims against each defendant under theories of slander and defamation at this early stage of
the case. The Court presently has supplemental jurisdiction over such claims. See 28 U.S.C.
§1367(a).
Accordingly, Plaintiff’s Complaint against Teleperformance USA, Inc. and Plaintiff’s
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state-law claims against the individual Defendants are not subject to dismissal under 28 U.S.C.
§1915(e)(2)(B). Plaintiffs’ Title VII claims against the individuals Defendants are subject to
dismissal under 28 U.S.C. §1915(e)(2)(B).
IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s Complaint (Doc. #2) against Teleperformance USA, Inc. not be
dismissed;

2.

Plaintiff’s state-law claims against Mynette Murrell, Troy Naboors, Brian Harris,
Brian Throckmorton, Calbert Duvall, Charles Tyree, Janette Jack, and Chris
Stewart not be dismissed.

2.

Plaintiff’s Title VII claims against Mynette Murrell, Troy Naboors, Brian Harris,
Brian Throckmorton, Calbert Duvall, Charles Tyree, Janette Jack, and Chris
Stewart be DISMISSED; and

3.

The United States Clerk of Court be directed to serve a copy of the Complaint
and attached Exhibits together with a summons upon each Defendant named in
the Complaint. All costs of service to be advanced by the United States.

February 12, 2013
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen [14] days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to seventeen [17] days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(B), (C), (D), (E), or (F). Such objections shall specify
the portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendations are based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange
for the transcription of the record, or such portions of it as all parties may agree upon or the
Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A
party may respond to another party’s objections within fourteen [14] days after being served
with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th
Cir. 1981).

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