Courts v. Correct Care Solutions, LLC et al

Filing 29

REPORT AND RECOMMENDATION: The undersigned RECOMMENDS for the reasons stated above that: 1) CCS's motion to dismiss (Doc. 18) be DENIED IN PART AND GRANTED IN PART; 2) CCS's motion to dismiss BE DENIED WITH RESPECT TO PLAINTIFF'S CLAIMS OF RETALIATION for reporting a co-worker's offensive statements, discussed above at II.C.2(b) 1 at p. 17; 3) CCS's motion to dismiss BE GRANTED WITH RESPECT TO THE REMAINDER OF PLAINTIFF'S CLAIMS for the reasons explain ed herein; and 4) CCS's motion to ascertain the status of its motion to dismiss (Doc. 26) be TERMINATED AS MOOT. Signed by Magistrate Judge Joe Brown on 5/23/2018. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PATRICIA COURTS,
Plaintiff,
v.
CORRECT CARE SOLUTIONS,
LLC, et al.,
Defendants.

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No. 3:17-00944
Judge Trauger/Brown
Jury Demand

To: The Honorable Aleta A. Trauger, United States District Judge.
REPORT AND RECOMMENDATION
The undersigned RECOMMENDS for the reasons stated below that: 1) Correct Care
Solutions’ (CCS) motion to dismiss (Doc. 18) be DENIED IN PART AND GRANTED IN PART;
2) CCS’s motion to dismiss BE DENIED WITH RESPECT TO PLAINTIFF’S CLAIMS OF
RETALIATION for reporting a co-worker’s offensive statements, discussed below at ¶ II.C.2(b)[1]
at p. 17; 3) CCS’s motion to dismiss BE GRANTED WITH RESPECT TO THE REMAINDER
OF PLAINTIFF’S CLAIMS for the reasons explained herein; and 4) CCS’s motion to ascertain
the status of its motion to dismiss (Doc. 26) be TERMINATED AS MOOT.
I. BACKGROUND
Plaintiff, proceeding pro se and in forma pauperis, brought this action on June 15, 2017
alleging violations of the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. § 621,
et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.. (Doc. 1) Plaintiff
named CCS as a defendant as well as, Jorge Dominicis, Jerry Boyle and Kevin Jordan (Jordan),
CEO, Chairman of the Board and Senior Vice President of CCS respectively. Plaintiff attached to
her complaint a copy of the Charge of Discrimination (the Charge) that she filed with the Equal
Employment Opportunity Commission (EEOC) on May 18, 2017 and the Dismissal and Notice of

Rights (right to sue letter) that the EEOC issued on May 24, 2017. (Doc. 1, pp. 6-7 of 31)1 The
Charge alleged discrimination based on race, retaliation, and age. (Doc. 1, p. 6 of 31)
The complaint was dismissed as to Dominicis, Boyle and Jordan on June 26, 2017 pursuant
to initial review under 28 U.S.C. § 1915(e)(2) leaving CCS as the sole defendant. (Doc. 4, p. 2)
This action was referred to the undersigned concurrently to “enter a scheduling order for the
management of the case, to dispose of or recommend disposition of any pretrial motions under 28
U.S.C. §§ 636(b)1)(A) and (B), and to conduct further proceedings, if necessary, under Rule 72(b),
Fed.R.Civ.P., and the Local Rules of Court.” (Doc. 4, p. 2)
On July 28, 2017, CCS filed a motion to dismiss for failure to state a claim or, in the
alternative, for a more definitive statement. (Docs. 7-8) Plaintiff filed a response on August 1, 2017
(Doc. 9), following which CCS replied on August 7, 2017 (Doc. 12). The undersigned held a
telephone conference with the parties on October 5, 2017. (Doc. 15) The undersigned wrote the
following in his October 12, 2017 order pertaining to that telephone conference:
[T]he Magistrate Judge will allow the Plaintiff 21 days from entry of
this order to file an amended complaint if she chooses to do so. In
the event the Plaintiff does file an amended complaint, the Magistrate
Judge will terminate the present motion to dismiss or to file a more
definite statement (Docket Entry 7) as moot, without prejudice to
being refiled in response to the amended complaint. . . .
(Doc. 16, p. 1)(bold in the original)
Plaintiff filed a motion to amend her complaint on October 20, 2017, attaching a copy of the
proposed amended complaint to her motion. (Doc. 17) Thereafter, CCS filed a motion to dismiss
on November 3, 2017 (Docs. 18-19), to which plaintiff responded on November 8, 2017 (Doc. 20),

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The page numbers cited herein are to those provided by the parties where the they have complied with
LR7.03(a), Local Rules of Court. The page number generated by the court’s CMECF system is referred to in those
instances where the parties did not comply with LR7.03(a).

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and CCS replied on November 13, 2017 (Doc. 23). In the interim, the undersigned entered an order
on November 9, 2017 in which he granted plaintiff’s motion to amend, instructed the Clerk to file
the proposed amended complaint attached to plaintiff’s October 20th motion to amend, and
terminated CCS’s July 28th motion to dismiss as moot. (Doc. 21, p. 1) CCS’s November 3, 2017
motion to dismiss (Doc. 18) is now properly before the court.
II. ANALYSIS
A. Standard of Review
In assessing a motion to dismiss under Rule 12(b)(6), the court construes the complaint in
the light most favorable to the plaintiff, accepts the plaintiff’s factual allegations as true, and
determines whether the complaint “contain[s] sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(internal
quotation marks and citation omitted). A complaint must provide “more than labels and conclusions
. . . a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly , 550 U.S. 544, 555 (2007). The courts are not required to accept as true legal conclusions
couched as factual allegations. Bell Atl. Corp., 550 U.S. at 555. “Factual allegations must be
enough to raise a right to relief above the speculative level. . . .” Bell Atl. Corp., 550 U.S. at 555.
“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. . . . [W]here
the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”
Ashcroft, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2))(internal citation omitted).
B. Exhaustion of Administrative Remedies
CCS argues initially that this action should be dismissed because plaintiff failed to exhaust
her administrative remedies in the EEOC. (Doc. 19, ¶ II, pp. 2-7) CCS asserts two specific

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arguments to that end: 1) plaintiff provided no factual allegations pertaining to age discrimination
in the Charge; 2) plaintiff does not allege in the Charge that she was passed over for a promotion.
(Doc. 19, ¶ II.A-B, pp. 3-7)
Exhaustion of administrative remedies is a condition precedent to Title VII and ADEA
claims. See Zipes v. TWA, 455 U.S. 385, 392-98 (1982); Hill v. Nicholson, 383 Fed.Appx. 503, 508
(6th Cir. 2010). Even though the requirement is not jurisdictional, the Sixth Circuit requires that
adjudication of cases alleging discrimination be “limited to the scope of the EEOC investigation
reasonably expected to grow out of the charge of discrimination.” EEOC v. R.G. & F.R. Harris
Funeral Homes, Inc., 884 F.3d 560, 597 (6th Cir. 2018)(citations omitted).
Turning to CCS’s first argument, plaintiff checked the box in the Charge corresponding to
“Age.” Plaintiff also asserted the following in the “PARTICULARS” section of the Charge: “I am
. . . in the protected age group,” and “I have been discriminated against . . . in violation of the Age
Discrimination in Employment Act of 1967 . . . .” (Doc. 22, p. 16 of 17) The right to sue letter
shows that the EEOC considered “the Age Discrimination in Employment Act” in dismissing her
complaint. (Doc. 22, p. 15 of 17)(bold in the original) Based on the foregoing, the undersigned
concludes that plaintiff exhausted her ADEA claim in the EEOC or, at the very least, an ADEA
claim could reasonably be expected to grow out of the Charge. Consequently, CCS’s motion to
dismiss plaintiff’s ADEA claim for failure to exhaust should be denied.
As for CCS’s second argument, i.e., failure to promote, plaintiff checked the box in the
Charge corresponding to “Retaliation.” (Doc. 22, p. 16 of 17) Plaintiff also asserted in the
“PARTICULARS” section of the Charge that she is an “African American,” that she complained
about harassment, that her job duties were changed, that she received an evaluation that stated her
“production was down,” and that she “was discharged for walking out of [a] meeting” to discuss a

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“poor relationship” with a co-worker. (Doc. 22, p. 16 of 17) The right to sue letter shows that the
EEOC considered “Title VII” in dismissing her complaint. (Doc. 22, p. 15 of 17)
A plain reading of the Charge reveals that plaintiff made no reference any failure-to promote
claim. (Doc. 22, ¶ 36, p. 9) The question becomes, would plaintiff’s failure-to-promote claim
reasonably be expected grow out of the Charge?
The Sixth Circuit has held that, “‘where the facts related with respect to the charged claim
would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded
from bringing suit on that claim.’” Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004)(quoting
Weigel v. Baptist Hosp. of East Tennessee, 302 F.3d 367, 380 (6th Cir. 2002)). Plaintiff’s failure-topromote claim would not reasonably be expected to grow from the facts alleged in the Charge,
because there is nothing in the Charge that would have led the EEOC in that direction during its
investigation. For these reasons, plaintiff’s failure-to-promote claim is not properly before the court.
Consequently, CCS’s motion to dismiss plaintiff’s failure-to-promote claim for failure to exhaust
should be granted.
The undersigned pauses here to address an additional exhaustion issue that arises from what
appear to be vague gender or sex claims in the amended complaint (Doc. 22, ¶¶ 27, 34, pp. 5, 8),
addressed below at ¶ II.C.2(a)[1], pp. 12-13. Plaintiff describes the protected class to which she
belongs as follows in the amended complaint: “Plaintiff is in a protected class (Black, female, age
48 and a month away from age 49 at [the] time of termination) based on race, age, gender, and so
on, as determined by the Equal Opportunity Commission (EEOC).” (Doc. 22, ¶ 8, p. 2)(bold added)
The words “female” and “gender” in bold support the notion that plaintiff is asserting gender or sex
claims.
A plain reading of the Charge shows that plaintiff did not check the box in the Charge

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labeled “SEX” to signal she was raising a gender or sex discrimination claim. (Doc. 22, p. 16 of 17)
Moreover, the “PARTICULARS” section of the Charge is silent as to gender and sex. Plaintiff
asserts only that “I believe . . . I have been discriminated against because of my race (African
American) . . . and my age . . . .” (Doc. 22, p. 16 of 17)(bold added) There also is nothing in the
right to sue letter that suggests the EEOC considered gender or sex in reviewing her complaint.
(Doc. 22, p. 15 of 17) Finally, there is nothing in the Charge or right to sue letter that would lead
one to believe that a gender or sex claim likely would grow from the facts alleged in the Charge.
In short, to the extent plaintiff is asserting gender and sex claims in her amended complaint, those
claims should be dismissed because plaintiff did not exhaust them in the EEOC prior to raising them
in this action. 28 U.S.C. § 1915(e)(2)(B)(ii).
C. CCS’s ARGUMENTS ON THE MERITS
The undersigned turns next to the merits of CCS’s arguments, with respect to which CCS
wrote the following in a footnote:
. . . . Plaintiff’s claims under the ADEA should be dismissed for
failure to exhaust her administrative remedies. In the event the Court
believes Plaintiff has satisfied her administrative burden, and because
the analysis is similar to that under Title VII, CCS will address
Plaintiff’s deficient claims of discrimination and retaliation under
both Title VII and ADEA together.
(Doc. 19, p. 9 n. 4)(bold added) Notwithstanding CCS’s approach, the undersigned will address
plaintiff’s ADEA and Title VII claims separately for clarity of analysis.
1. Plaintiff’s ADEA Claim
Plaintiff alleges that CCS discriminated against her because of her age. (Doc. 22, ¶ IV, pp.
12-13) The crux of CCS’s argument in its motion to dismiss is that plaintiff has failed to state a
plausible claim of age discrimination. (Doc. 19, ¶ III.A, pp. 9-11)
The ADEA makes it unlawful for an employer “to discharge any individual or otherwise
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discriminate against any individual with respect to [her] compensation, terms, conditions, or
privileges of employment, because of such individual’s age . . . .” 29 U.S.C. § 623(a)(1). A plaintiff
bringing an ADEA claim “must prove that age was a determining factor in the adverse action that
the employer took against . . . her.” Joanne Alberty v. Columbus Township, ___ Fed.Appx. ___,
2018 WL 2022585 * 3 (6th Cir. 2018)(quoting Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir.
1993)). The Supreme Court has held that the ADEA does not permit “a mixed-motives” claim; a
plaintiff alleging a violation of the ADEA must prove by a preponderance of the evidence that “age
was ‘the but-for’ cause of the employer’s adverse action.” Scheick v. Tecumseh Pub. Sch., 766 F.3d
423, 429 (6th Cir. 2014)(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009)).
To establish a prima facie case of age discrimination, plaintiff must show that she was: 1)
at least 40 years old at the time of the alleged discrimination; 2) subjected to an adverse employment
action because of her age; 3) otherwise qualified for the position; 4) replaced by someone outside
the protected class, or she was treated differently than similarly situated individuals. See Laws v.
HealthSouth N. Ky. Rehab. Hosp. Ltd. P’Ship, 508 Fed.Appx. 404, 410-11 (6th Cir. 2012); Harris
v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 594 F.3d 476, 485 (6th Cir. 2010).
Following are the references pertaining to plaintiff’s age or the ADEA appearing in the
amended complaint:
Plaintiff noted in her complaint that “[t]his Court has jurisdiction of
the lawsuit . . . in that it arises under . . . the Age Discrimination in
Employment Act (‘ADEA’).”
(Doc. 22, ¶ II.4, p. 2)
Plaintiff wrote next that she “is in a protected class . . . age 48 and a
month away from age 49 at [the] time of termination . . . based on .
. . age . . . .”
(Doc. 22, ¶ III.8, p. 2)

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Plaintiff asserts in her first cause of action that she “establishes a
prima facie case . . . [as] . . . a member of a protected class . . . .”
(Doc. 22, ¶ IV.44, p. 12)
Plaintiff asserts in her second cause of action that, “[a]s a direct and
proximate result of Defendant’s violation of the . . . Age
Discrimination in Employment Act . . . [she] . . . has suffered, and
continues to suffer, loss of equitable income as well as other
employment benefits.”
(Doc. 22, ¶ IV.50, p. 13) The statements above provide no factual allegations, nor can any be
liberally construed from them.
Because plaintiff is proceeding pro se, the undersigned looked to her response to CCS’s
motion to dismiss in an effort to see if she alleged any factual allegations there that might support
her ADEA claim. There are none. Apart from some non-substantive comments at the beginning of
her response, plaintiff’s only references to age or the ADEA in her response are the same as the four
excerpts quoted above from the amended complaint.2 (Doc. 20, ¶ II.4, p. 4 of 20; ¶ III.8, p. 5 of 20;

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The undersigned notes that plaintiff also appears to raise the following additional claims in her response to
CCS’s motion to dismiss not addressed elsewhere herein:
Defendant racially discriminated against the Plaintiff by denying her a promotion
and younger white males were promoted within the company for open positions or
transferred around to other departments; by denying her an opportunity to meet
production merits while white and non-black male employees performing work with
the FBOP . . . were given more contract negotiations and ability to meet
productivity metrics; and by paying her less money than similarly situated white
male employees even though she was performing substantially the same work and
such racial discrimination was pervasive, continuing, invidious, and ongoing.
(Doc. 20, p. 3) To the extent that the foregoing constitute an effort on plaintiff’s part to raise new claims for relief in
her response, the court may not consider them for the following reasons. First, the district court is limited in its review
to “legal claims . . . raised in the pleadings” as defined by Rule 7(a), Fed.R.Civ.P. See Johnson v. Metro. Govt. of
Nashville and Davidson County, Tenn., 502 Fed.Appx. 523, 541-42 (6th Cir. 2012). Plaintiff’s response to the motion
to dismiss does not constitute a pleading under the Federal Rules of Civil Procedure. See Rule 7(a), Fed.R.Civ.P.
Second, there is nothing in the Charge that pertains to these new apparent claims, nor would it be reasonable to expect
these claims to grow out of the Charge. Finally, even if facts alleged in the Charge were liberally construed to include
these claims, or liberally construed that it would be reasonable for them to grow out of the Charge, plaintiff raises them
more than two months after the 90-day deadline to raise her claims in an action in district court. For these reasons, the
undersigned will not address these apparent new claims.

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¶ IV.45, p. 15 of 20; ¶ IV.51, pp. 16-17 of 20)
Finally, the undersigned reviewed plaintiff’s original complaint to see if she provided any
factual allegations in it. Apart from citing “the Age Discrimination Act of 1967” as grounds for
filing her case (Doc. 1, ¶ 1, p. 1 of 31), the “Statement of claim” section of the original complaint
is silent as to age or the ADEA (Doc. 1, ¶ 4, pp. 2-4 of 31). The attached emails also make no
reference to age. (Doc. 1, pp. 8-31 of 31)
Although pro se complaints are held to less stringent standards than complaints prepared by
an attorney, see Boag v. MacDougall, 454 U.S. 364, 365 (1982), the courts are not willing to
“abrogate basic pleading essentials in pro se suits,” see Clark v. Johnston, 413 Fed.Appx. 804, 817
(6th Cir. 2011)(quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1990)). “[M]ore than bare
assertions of legal conclusions or personal opinions are required to satisfy federal notice pleading
requirements.” See Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008)(citing Scheid v. Fanny
Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). A “complaint must . . . ‘contain
either direct or inferential allegations respecting all the material elements to sustain a recovery under
some viable legal theory.’” Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th Cir.
2012)(quoting Eidson v. Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir.2007)).
Moreover, the less stringent standard for pro se plaintiffs also do not “require [a] court to conjure
up unpled allegations.” Porter v. Genovese, 676 Fed.Appx. 428, 440 (6th Cir. 2017)(citing Wells,
891 F.2d at 594). Simply put, conclusory claims are subject to dismissal. See Ashcroft, 556 U.S.
at 678; Bell Atlantic Corp., 550 U.S. at 555; Erie County, Ohio v. Morton Salt, Inc. 702 F.3d 860,
867 (6th Cir. 2012).
As shown above, plaintiff has failed to provide any factual allegations in support of her
ADEA claim. Nor, as noted above at p. 7, may plaintiff piggyback an ADEA claim on her Title VII

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claims. Accordingly, CCS’s motion to dismiss plaintiff’s ADEA claim should be granted for failure
to state a claim.
2. Plaintiff’s Title VII Claims
Title VII prohibits an employer from discriminating against any individual with respect to
her 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), (m); see University of Texas
Southwestern Medical Center v. Nassar, 570 U.S. 338, 342, 347 (2013). Title VII also prohibits
retaliation based on an employee’s opposition to any employment practice made unlawful under
Title VII, or because she has made a charge, testified, or participated in an investigation, proceeding
or hearing pertaining to claims of employment discrimination. 42 U.S.C. § 2000e-3(a);see
University of Texas Southwestern Medical Center, 570 U.S. at 347-48, 360.
A plaintiff may rely on direct or circumstantial evidence to establish a Title VII claim. See
e.g., Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 346 (6th Cir. 2012). Where, as here, a
plaintiff does not base her claim on direct evidence, her circumstantial evidence is analyzed under
the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) burden-shifting framework, later
modified by Texas Department of Community Affairs v. Burline, 450 U.S. 248, 252-53 (1981).
Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008). Under that framework: 1) the plaintiff
must first establish a prima facie case of discrimination; 2) the burden then shifts to the defendant
to offer a legitimate, non-discriminatory basis for its actions; 3) if the defendant does, then the
burden shifts back to the plaintiff to establish that the employer’s proffered reasons are a mere
pretext. Texas Department of Community Affairs, 450 U.S. at 253.
(a) Plaintiff’s Hostile Work Environment Claims
Plaintiff asserts that she was subject to a hostile work environment for the reasons

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enumerated [1] through [4] below. CCS argues that plaintiff’s hostile-work-environment claim
should be dismissed because plaintiff fails to state a plausible claim of discrimination. (Doc. 19, ¶
III.A, pp. 9-11)
To state a prima facie case of a hostile work environment under Title VII, a plaintiff must
show that: 1) she is a member of a protected class (African-American in this case); 2) she was
subjected to unwelcome harassment; 3) the harassment was based on plaintiff’s protected status; 4)
the harassment was sufficiently severe or pervasive to affect a term, condition, or privilege of
employment; 5) the employer knew or should have known about the harassing conduct but failed
to take corrective or preventative actions. Fullen v. City of Columbus, 514 Fed.Appx. 601, 606-07
(6th Cir. 2013)(citing Bailey v. USF Holland, Inc., 526 F.3d 880, 885 (6th Cir. 2008)).
[1] Duncan Gibson’s Alleged Offensive Statements
The amended complaint alleges that, “[a]round the month of Jule 2016” plaintiff heard
Duncan Gibson (Duncan) – with whom plaintiff worked as a contracts specialist on Federal Bureau
of Prison (FBOP) contracts – say the following: “‘Yes, my dad was born and bred in Alabama and
I’m a real redneck!’ ‘Yes, you know how we do.’” (Doc. 22, ¶¶ 17-18, 24, pp. 3-4) Duncan was
in an adjacent cubicle “on the phone . . . talking about contract negotiations.” (Doc. 22, ¶ 24, p. 4)
Plaintiff considered Duncan’s comments “offensive and threatening racial slurs,” “racist, classist,
and prejudiced.” (Doc. 22, ¶ 24, p. 4)
Plaintiff asserts further that “[a]round the month of June 2016 for about three days in a row”
she “heard Duncan on the phone at different times using the racial slur ‘Yes, a real redneck, that’s
right’; ‘I live in Brentwood, TN.’” (Doc. 22, ¶ 25, p. 4) Plaintiff asserts that, when she no “longer
heard Duncan on the phone,” she asked him “over the cubicle if he thought he had special privileges
because [wa]s a ‘redneck,’” informing him that his comments were “racially offensive and scary.”

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(Doc. 22, ¶ 25, p. 4) Plaintiff asserts that Duncan “looked at [her] but never answered.” (Doc. 22,
¶ 25, p. 4) According to plaintiff, Duncan’s comments “create[ed] a work environment that a
reasonable person would consider intimidating and hostile.” (Doc. 22, ¶ 25, p.5)
Plaintiff alleges that Duncan “later” remarked in a separate incident that it was “stupid to
have a female for president, especially Hillary Clinton,” which plaintiff interpreted as sexist. (Doc.
22, ¶ 27, p. 5) On a date unspecified, plaintiff alleges that she spoke with Tracy Blair (Tracy) –
under whose supervision she and Duncan worked at the time – to complain about Duncan’s
“redneck” remarks who, in turn, assured plaintiff that he “would speak with Duncan and ask him
to ‘tone it down.’” (Doc. 22, ¶¶ 9, 17, 28, pp. 2-3, 5) Plaintiff also alleges that she reported “a
perceived racially offensive remark from Duncan . . . mocking Hispanics [because] they took off a
day from work,” and a remark he made about “men now being able to shop at the Brentwood Kroger
since they now have a bar.” (Doc. 22, ¶ 34, p. 8)
In assessing a hostile workplace claim, the court must “look to all the circumstances,
including the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116
(2002)(citation omitted). The hostility must be pervasive; “‘simple teasing. . . offhand comments,
isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms
and conditions of employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)(citation
omitted). The “mere utterance of an . . . epithet which engenders offensive feelings in an employee
. . . does not sufficiently affect the conditions of employment to implicate Title VII.” Harris v.
Forklift Sys., 510 U.S. 17, 21 (1993); see also Williams v. CSX Transp. Co., 643 F.3d 502, 513 (6th
Cir. 2011); Clay v. United Parcel Serv., Inc., 501 F.3d 695, 707-08 (6th Cir. 2007).

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Duncan’s alleged “redneck” comments do not give rise to a Title VII violation because they
were not physically threatening and, although they engendered offensive feelings, they were mere
utterances. Further, Duncan’s “redneck” remarks were not directed at plaintiff; he directed them at
himself and the person to whom he was speaking. Duncan also was not in the same cubicle as
plaintiff, nor can it be liberally construed from the amended complaint that he was aware that
plaintiff was listening to his end of phone conversations until after she confronted him. Plaintiff also
does not allege that the “redneck” comments continued after she confronted him and reported
Duncan to Tracy. Consequently, the amended complaint fails to allege and show that the problem
was not corrected. Finally, Duncan’s one-time remarks about “a female for president,” Hispanics
taking a day off, and men being able to shop in the Brentwood Kroger because “they now have a
bar” are nothing more than offhanded, isolated incidents. As such, they do not give rise to a Title
VII hostile-work-environment claim.3 CCS’s motion to dismiss should be granted here because
plaintiff fails to make a prima facie showing of a Title VII hostile-work-environment claim.
[2] Upper Management’s Alleged Harassment of Plaintiff
For Reporting Duncan’s Statements
Plaintiff asserts that, “during the end of June and beginning of July 2016,” management at
CCS harassed her for engaging in the protective activity of reporting Duncan’s offending statements.
(Doc. 22, ¶ 29, pp. 5-6) Plaintiff alleges that her work duties were increased “significantly” by
requiring her to “take[] on duties also expected of Duncan . . . and Tracy often causing interference
with Plaintiff’s regular contracts specialist work metrics.” (Doc. 22, ¶ 29, p. 6) Plaintiff alleges
further that “[n]o other contracts specialist . . . was required to help complement management duties
for Duncan and Tracy,” although there “were other managers (all White) that should and could have

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The Magistrate Judge notes that, even if plaintiff had exhausted a gender or sex claim in the EEOC, that claim
still would still be subject to dismissal for the reasons set forth in this paragraph.

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been directed to assist,” and that she was not offered a “promotion, salary increase or change in title”
for doing the additional work. (Doc. 22, ¶ 31, pp. 6-7) Plaintiff asserts that she discussed her
“significantly increased workload” with Tracy in July 2016, but that Tracy and she were informed
by Kenya Adams (Kenya) – under whom Tracy worked at the time – in September 2016 that “upper
management would not approve a promotion . . . salary increase or change in title . . . .” (Doc. 22,
¶ 31, pp. 6-7) Subsequently, “[d]uring or around December,” plaintiff’s FBOP work with Duncan
“was significantly decreased . . . and Paolo Viteri (non-black younger male) was assigned to become
the FBOP working with . . . Duncan . . . instead of Plaintiff . . . .” (Doc. 22, ¶ 32, p. 7)
Plaintiff does not assert, nor can it be liberally construed from the amended complaint, that
the harassment alleged was based on plaintiff’s protected status as an African-American. Rather,
the amended complaint is unambiguous that upper management’s alleged actions were based on
plaintiff having reported Duncan’s offensive statements. Because the amended complaint fails to
make a prima facie showing a hostile work environment under Title VII, CCS’s motion to dismiss
should be granted with respect to this claim.
[3] Pamela Cane’s and Duncan’s Alleged Loud
Conversations, Laughter, and Coughing
Plaintiff alleges that Pamela Cane (Pamela) – also a contracts specialist under Tracy’s
supervision – and Duncan subjected her to a hostile work environment due to“loud conversations
and laughter near Plaintiff’s cubicle,” and by coming to work “severely coughing in spite of an email
from the CEO to stay home when sick,” plaintiff asserting that she eventually became ill herself.
(Doc. 22, ¶¶ 33, 39, pp. 8, 10) Plaintiff asserts that she told Kenya and Jordan about the alleged
harassment and having to work from home or in common areas due to the disturbances. (Doc. 22,
¶ 33, p. 8) Plaintiff asserts further that she spoke with Kenya on May 12, 2017 about having to leave
the office work from home due to “noise disturbances and severe coughing next to [her] cubicle
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going on . . . for almost four months.” (Doc. 22, ¶ 39, p. 10) Finally, plaintiff alleges that Pamela
and Duncan “were indifferent to [her], even joking about moving [her] to an isolated area from the
rest of the team . . . [and Pamela] . . . bec[oming] louder on personal cell phone calls . . . ,” and that
“Kenya and Kevin did not prevent or promptly correct their. . . behavior.” (Doc. 22, ¶ 34, p. 8)
Taking Pamela’s and Duncan’s alleged conduct as true, plaintiff does not allege, nor can it
be liberally construed from the amended complaint that Pamela’s and Duncan’s actions were based
on plaintiff’s protected status as an African-American. Accordingly, CCS’s motion to dismiss this
claim should be granted because plaintiff fails to make a prima facie showing of a Title VII hostile
work environment under the facts alleged.
[4] Pamela’s Alleged Hostility Toward Sarah Bailey
The amended complaint alleges that Sarah Bailey (Sarah) – Tracy’s successor – spoke to
plaintiff in January 2017 about “being verbally attacked by . . . Pamela . . . and spoke about how
Pamela was combative with her in the presence of co-workers and subordinates . . . .” (Doc. 22, ¶¶
20, 37, pp. 3, 9) The amended complaint asserts without elaboration that plaintiff responded: “‘If
Pamela treat[s] you like this and you are a director, imagine what she puts me through . . . .” (Doc.
22, ¶ 37, p. 9) Thereafter, in April 2017, plaintiff alleges that Sarah “began to ask Plaintiff to
‘correct’ work mistakes made by Pamela . . . because [Sarah] . . . did not want to deal with her.”
(Doc. 22, ¶ 38, p. 9) Plaintiff avers that she began to correct Pamela’s “mistakes immediately but
also informed Kenya . . . and . . . Jordan about the hostile environment . . . .” (Doc. 22, ¶ 38 p. 9)
Taking the foregoing as true, the circumstances described here are of Pamela allegedly
harassing Sarah, not Pamela harassing plaintiff, or Sarah harassing plaintiff. Even if it were
determined that Pamela’s harassment of Sarah is imputed to CCS through Sarah when Sarah asked
plaintiff to correct Pamela’s mistakes, Sarah did not “ask” plaintiff to correct Pamela’s mistakes

15

because of plaintiff’s protected status as an African-American. Sarah asked plaintiff to correct the
mistakes because she “did not want to deal with” Pamela. CSS’s motion to dismiss should be
granted here because plaintiff fails to make a prima facie showing of a Title VII hostile-workenvironment claim under the facts alleged.
(b) Plaintiff’s Retaliation Claims
A prima facie case of Title VII retaliation requires proof that: 1) plaintiff engaged in activity
protected by Title VII; 2) the defendant knew of plaintiff’s exercise of activity protected by Title
VII; 3) the defendant took an action that was “materially adverse” to plaintiff; 4) a causal connection
existed between the protected activity and the materially adverse action. Mys v. Michigan Dep’t of
State Police, 886 F.3d 591, 599-600 (2018)(citation omitted). “Materially adverse” in the context
of the second element means the action “might well have ‘dissuaded a reasonable worker from
making or supporting a charge of discrimination.’” Burlington N. & Santa Fe. Ry. Co. v. White, 548
U.S. 53, 68 (2006); Laster v. City of Kalamazoo, 746 F.3d 714, 730-31 (6th Cir. 2014). The fourth
element “requires proof of so-called ‘but-for’ causation, meaning that the plaintiff must furnish
evidence that the ‘unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Mys, 886 F.3d at 600 (citation omitted).
The law is well established that “[a] mere inconvenience or an alteration of job
responsibilities is not enough to constitute an adverse employment action.” Deleon v. Kalamazoo
City. Rd. Comm’s, 739 F.3d 914, 918 (6th Cir. 2014)(quoting White v. Burlington N. & Santa Fe. Ry.
Co., 364 F.3d 789, 797 (6th Cir. 2004)(en banc)(internal quotation marks omitted). “[D]e minimis
employment actions and ‘very temporary’ actions are not materially adverse and, thus, not
actionable under title VII . . . .” Howington Quality Restaurant Concepts, LLC, 298 Fed.Appx. 436,
442 (6th Cir. 2008)(citing Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000)). On

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the other hand, an adverse employment action is actionable if it involves “hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Fuller v. Michigan Dept. Of Transp., 580 Fed.Appx. 416, 423 (6th
Cir. 2014)(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
[1] Upper Management’s Alleged Retaliation for Reporting
Duncan’s Offensive Statements
The factual allegations set forth in paragraph II.C.2(a)[2] above at pp. 13-14 also apply to
this a claim of retaliation, and they are incorporated herein by reference in that context. The
question before the court here is whether the alleged actions taken by CCS upper management in
response to plaintiff’s reporting Duncan’s comments constituted retaliation within the meaning of
Title VII.
The amended complaint alleges that CCS upper management assigned additional work to
plaintiff to the detriment of her regular work, no other employees were required to help with the
additional work, she was not compensated for the extra work, and she was replaced in her original
position by another employee. These facts state a plausible claim of retaliation under Title VII.
Accordingly, CCS’s motion to dismiss this claim should be denied.4
[2] Alleged Retaliation for Reporting Pamela’s and Duncan’s
Loud Conversations, Laughter, and Coughing
The factual allegations set forth in paragraph II.C.2(a)[3] above at pp. 14-15 constitute the
basis for this retaliation claim, and are incorporated herein by reference in that context. Plaintiff
adds the following two retaliation-related allegations to this claim not addressed previously: 1)

4

Unlike summary judgment, to withstand a motion to dismiss, the complaint “need only provide ‘an adequate
factual basis’ for a discrimination claim in order to satisfy the pleading requirements of Federal Rule of Civil Procedure
8(a)(2).” James v. Hampton, 592 Fed.Appx. 449, 460 (6th Cir. 2015)(quoting Serrano v. Cintas Corp., 699 F.3d 884,
897 (6th Cir. 2012)).

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“management retaliated” against plaintiff for reporting Pamela’s and Duncan’s alleged conduct by
“not having Pamela or Duncan wear a mask but suggest[ing] that Plaintiff wear a mask”; 2)
“management required [plaintiff] to come to a luncheon for the company President, even after
informing [management] of [her own] flu-like symptoms.” (Doc. 22, ¶ 35, pp. 8-9)
The question before the court here is whether Pamela and Duncan’s alleged conduct, and
upper management’s alleged actions in response to plaintiff reporting that alleged conduct,
amounted to retaliation under Title VII. The short answer is, “They do not.” Pamela’s and
Duncan’s alleged conduct did not constitute a “materially adverse” action against plaintiff within
the meaning of Title VII. The alleged actions of management in requiring plaintiff to attend a
luncheon for the company president, and not requiring Pamela and Duncan to wear a mask while
“suggest[ing]” that plaintiff wear one, are not “materially adverse” within the meaning of Title VII.
CCS’s motion to dismiss should be granted as to this claim because plaintiff fails to establish a
prima facie case of retaliation under Title VII.
[3] Alleged Retaliation Stemming from Pamela’s
Hostility Toward Sarah
The factual allegations set forth in paragraph II.C.2(a)[4] above at pp. 15-16 apply to this
claim of retaliation, and are incorporated herein by reference in that context. Plaintiff adds the
following retaliation-related allegation to this claim not previously discussed: “[A]lmost a week
afterwards . . . [plaintiff] informed [Sarah] that it . . . appear[ed] as retaliatory for Plaintiff to have
to make the corrections.” (Doc. 22, ¶ 38, p. 10)
The amended complaint fails to allege and show that the actions about which plaintiff
complains in this claim constituted a materially adverse employment action within the meaning of
Title VII. As previously established above at p. 9, the district court is not required to conjure up
unpled facts in the absence of any provided by plaintiff. In any event, given the facts that are
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alleged, Sarah’s request appears little more than di minimis inconvenience which, as noted above
at pp. 16-17, is not actionable as retaliation under Title VII. For these reasons, CCS’s motion to
dismiss should be granted as to this claim because plaintiff has failed to establish a prima facie case
of retaliation under Title VII.
[4] Alleged Retaliatory Discharge
The amended complaint alleges that plaintiff met with Kenya and Pamela on May 15, 2017
to discuss plaintiff’s complaints regarding “retaliation and hostile work environment,” apparently
due to “noise disturbances and severe coughing . . . going on . . . for almost four months.” (Doc. 22,
¶¶ 39-40, pp. 10-11) Plaintiff avers that Kenya “became verbally combative” toward her, and made
the following statements:
I am not able to directly manage and supervise you all since you
don’t have a director, nor have I been able to dedicate fully during
this vacancy of four months. . . . You are expected to negotiate these
deals a[t] the next level of the role. You need to set personal issues
aside because other people in the department are affected. I expect
you to be adults and not [send] emails flying back and forth. You
need to figure a way to make it happen. This ‘stuff’ is unproductive
. . . . petty, babyish, foolish[] . . . .
(Doc. 22, ¶ 40, pp. 10-11)(internal quotations omitted) Plaintiff avers that she was “the only one
in the meeting writing” and, as Pamela was giving her take on their problems, Kenya demanded that
plaintiff “‘stop writing and pay attention to Pamela.’” (Doc. 22, ¶ 40, p. 11) Plaintiff avers that
“Kenya never interrupted Pamela . . . [who] . . . was yelling at Plaintiff . . . .” (Doc. 22, ¶ 40, p. 11)
Plaintiff asserts that the “meeting was clearly another pretext for retaliation,” that she “stood up .
. . gathered her belongings . . . [and] said . . . ‘I don’t feel well and I’m going home to work, this is
not right, and this attack is unacceptable, you all are not going to jump on me . . . .’” (Doc. 22, ¶ 40,
p. 11) The amended complaint alleges that plaintiff was terminated that same day for “job
abandonment/insubordination.” (Doc. 22, ¶ 41, pp. 11-12)
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Summarily walking out of a meeting called by one’s supervisor to discuss one’s problems
with a co-worker does not constitute protected conduct. Summarily departing one’s place of work
without permission also does not constitute protected conducted. Because plaintiff’s actions at the
meeting did not constitute protected conduct, and because plaintiff does not attribute her termination
to anything other than her actions at the meeting, a Title VII retaliation claim will not lie.
Accordingly, CCS’s motion to dismiss plaintiff’s retaliatory discharge claim should be granted for
failure to establish a prima facie case of retaliation under Title VII.
III. CONCLUSION
AND
RECOMMENDATIONS
The undersigned RECOMMENDS for the reasons stated above that: 1) CCS’s motion to
dismiss (Doc. 18) be DENIED IN PART AND GRANTED IN PART; 2) CCS’s motion to dismiss
BE DENIED WITH RESPECT TO PLAINTIFF’S CLAIMS OF RETALIATION for reporting
a co-worker’s offensive statements, discussed above at ¶ II.C.2(b)[1] at p. 17; 3) CCS’s motion to
dismiss BE GRANTED WITH RESPECT TO THE REMAINDER OF PLAINTIFF’S
CLAIMS for the reasons explained herein; and 4) CCS’s motion to ascertain the status of its motion
to dismiss (Doc. 26) be TERMINATED AS MOOT.
The parties have fourteen (14) days of being served with a copy of this R&R to serve and
file written objections to the findings and recommendation proposed herein. A party shall respond
to the objecting party’s objections to this R&R within fourteen (14) days after being served with a
copy thereof. Failure to file specific obj3:15-1309ections within fourteen (14) days of receipt of this
R&R may constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, 142, reh’g denied,
474 U.S. 111 (1986); see Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011).
ENTERED this the 23rd day of May, 2018.

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/s/ Joe B. Brown
Joe B. Brown
United States Magistrate Judge

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