Ford v. Wendy's of Bowling Green et al
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 7/14/2021. (xc: Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
WENDY’S OF BOWLING
GREEN, et al.,
Plaintiff Elizebeth Ford filed a pro se employment discrimination complaint against
Wendy’s of Bowling Green (“WBG”), Bridgeman Group (“Bridgeman”), Ulysses Bridgeman,
Jimmy Head, Derrick Garcia, Sandy Lackey, and Rodney Boston. (Doc. No. 1.) The plaintiff also
filed an application to proceed in this court without prepaying fees and costs. (Doc. No. 6.) The
case is before the court for a ruling on the application and initial review of the complaint.
Application for Leave to Proceed Without Paying Fees and Costs
The court may authorize a person to file a civil suit without paying the filing fee. 28 U.S.C.
§ 1915(a). The plaintiff is a single 61-year-old woman with a modest average monthly income
derived from variable work as a Lyft driver. (Doc. No. 6 at 1.) The plaintiff reports monthly
expenses that exceed her income, including costs associated with her work vehicle and regular
debt payments. (Id. at 1, 4.) In addition, the plaintiff has no significant cash reserves or assets. (Id.
at 2-3.) Because it appears that the plaintiff cannot pay the full civil filing fee in advance without
undue hardship, the application will be granted. 1
Initial Review of the Complaint
The court must conduct an initial review of the complaint and dismiss any action filed in
forma pauperis if it is frivolous, malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); see also Ongori v. Hawkins, No. 16-2781, 2017 WL 6759020, at *1 (6th Cir. Nov.
15, 2017) (“[N]on-prisoners proceeding in forma pauperis are still subject to the screening
requirements of § 1915(e).”).
Standard of Review
“Pro se complaints are to be held to less stringent standards than formal pleadings drafted
by lawyers, and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011); Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Estelle v. Gamble, 429 U.S. 97
(1976)). Even under this lenient standard, however, pro se plaintiffs must meet basic pleading
requirements and are not exempted from the requirements of the Federal Rules of Civil Procedure.
Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004); see also Brown v. Mastauszak, 415 F. App’x
608, 613 (6th Cir. 2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out
in his pleading.”).
In reviewing the complaint, the court applies the standard for Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). The court must
(1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded
factual allegations as true. Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir.
Because the application was timely filed, the plaintiff’s “Pleading for More Time” (Doc. No. 7), construed
by the Court as a motion for extension of time concerning the application, will be denied as moot.
2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). The
court must then consider whether the factual allegations “plausibly suggest an entitlement to
relief,” Williams, 631 F.3d at 383 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)), that rises
“above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
need not accept as true “unwarranted factual inferences,” DirectTV, Inc. v. Treesh, 487 F.3d 471,
476 (6th Cir. 2007) (quoting Gregory v. Shelby Cnty., 220 F.3d 433, 446 (6th Cir. 2000)), and
“legal conclusions masquerading as factual allegations will not suffice.” Eidson v. Tenn. Dep’t of
Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007).
Liberally construing the complaint, the court identifies the following factual allegations.
The plaintiff, a Black female born in 1959, was hired by Bridgeman, a Black-owned company, to
work at a Wendy’s restaurant in Nashville, Tennessee. (Doc. No. 1 at 4, 8.) The plaintiff reported
to a Black supervisor named Rodney Boston. (Id.) Boston promised to promote the plaintiff when
an opportunity became available. (Id. at 8.) However, the plaintiff discovered that Bridgeman
allows “discrimination in the workplace” and treats Black employees differently than “other
people” regarding “respect, schedules, promot[ions], [and] pay raises.” (Id.) The plaintiff
eventually learned from Boston that there are no “real” growth opportunities for Black employees
at Bridgeman. (Id. at 8-9.) Boston also revealed that Bridgeman wants Black employees, including
the plaintiff, to only work at the store level, not as office supervisors or management. (Id.) Boston
told the plaintiff that “she was here so the Black-own[ed] [company] can sa[y] [it has] one Black
in Nash[ville].” (Id. at 9.) The complaint also alleges that Bridgeman, through Boston,
discriminated against and took advantage of the plaintiff by allowing “male and younger
management” to leave early, work preferred schedules, and get pay raises. (Id.) When confronted,
Boston promised to secure the pay raises for the plaintiff; however, he did not do so. (Id.)
The plaintiff formally complained by notifying the “chain of command” that she was
“being discriminated against.” (Id. at 10.) At first, Bridgeman did nothing in response. (Id.)
Eventually, director of operations Jimmy Head called a meeting with the plaintiff and other
management. (Id.) At the meeting, Head belittled, mocked, and acted in a racist manner towards
the plaintiff. (Id.) Head threatened that if the plaintiff continued to complain, he would “send her
to the worst store in the [company],” where she would “be on all nights and hardship.” (Id.) Head
further explained to the plaintiff that she “didn’t have it so bad,” but “that would happen” when
she was “sent to the worst store.” (Id.) Head expressly warned the plaintiff that “he would show
[her].” (Id.) After that time, the plaintiff received increasingly problematic work assignments. (Id.
at 12.) She was sent to poorly performing stores, given difficult workloads, and “cuss[ed] out” by
white management. (Id.) The plaintiff attempted to complain about this ongoing “discriminat[ion]
and abus[e],” but she was ignored by human resources. (Id.)
The plaintiff brings claims under Title VII of the Civil Rights Act of 1964 (“Title VII”),
the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Americans with
Disabilities Act of 1990 (“ADA”). 2 (Id. at 3). The plaintiff checked boxes to indicate that she
complains about the following discriminatory conduct: failure to promote; failure to accommodate;
unequal terms and conditions of employment; and retaliation. (Id. at 4). In addition, the plaintiff
The plaintiff has provided a re-issued right-to-sue notice from the EEOC that references the content of the
EEOC’s original right-to-sue notice. (Doc. No. 1-3.) This submission is sufficient to demonstrate
exhaustion of administrative remedies for purposes of initial review.
asserts that the defendants discriminated against her based on race, color, gender, religion, age,
and disability (i.e., heart condition). (Id.)
Title VII, the ADEA, and the ADA are key parts of “the federal policy of prohibiting
wrongful discrimination in the [n]ation’s workplaces.” Univ. of Texas Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 342 (2013). First, Title VII makes it unlawful for an employer to discriminate 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. § 2000e2(a)(1). Next, the ADEA prohibits an employer from discriminating 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). Finally, the ADA prohibits covered employers from
discriminating against a “qualified individual on the basis of disability” regarding hiring,
advancement, training, termination, employee compensation, and “other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a); Keith v. Cnty. of Oakland, 703 F.3d 918, 923
(6th Cir. 2013).
As a threshold matter, the court addresses the proper defendant to the plaintiff’s claims. “It
is well-established in the Sixth Circuit that an individual employee or supervisor who does not
otherwise qualify as an employer cannot be held personally or individually liable under Title VII.”
Smith v. Bd. of Tr. Lakeland Cmty. Coll., 746 F. Supp. 2d 877, 891 (6th Cir. 2010) (collecting
cases). And “Title VII, the ADEA, and the ADA define ‘employer’ essentially the same way.”
Wathen v. Gen. Elec. Co., 115 F.3d 400, 404 n.6 (6th Cir. 1997) (explaining that the statutes each
“limit liability to the employer”). Thus, an individual defendant “is not included within the
statutory definition of employer under Title VII and its sister civil rights statutes, and . . . cannot
be held personally liable for discrimination.” Johnson v. East Tenn. St. Univ., 229 F.3d 1152
(Table), 2000 WL 1182792, at *2 (6th Cir. 2000) (citing Wathen, 115 F.3d at 405). Rather, the
proper defendant for the plaintiff’s claims is her employer. See, e.g., Wright v. MNPS, No. 3:19cv-00953, 2020 WL 1082755, at *3 (M.D. Tenn. Mar. 6, 2020). Accordingly, individual
defendants Ulysses Bridgeman, Jimmy Head, Derrick Garcia, Sandy Lackey, and Rodney Boston
will be dismissed. 3
Title VII and ADEA Discrimination Claims
For a Title VII discrimination claim, the plaintiff must demonstrate 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. Wright v. Murray Guard, Inc., 455 F.3d 702, 709 (6th Cir. 2006);
Smith v. City of Salem, Ohio, 378 F.3d 566, 570 (6th Cir. 2004) (citing Perry v. McGinnis, 209
F.3d 597, 601 (6th Cir. 2000)). Importantly, however, the plaintiff need not establish all the prima
facie elements of a Title VII claim at this stage. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
(2002). Rather, the plaintiff need only set forth a short and plain statement of her claims and allege
facts sufficient to plausibly suggest an entitlement to relief. Williams, 631 F.3d at 383; see also,
e.g., Serrano v. Cintas Corp., 699 F.3d 884, 897 (6th Cir. 2012) (explaining that as long as the
complaint “provides an adequate factual basis for a Title VII discrimination claim, it satisfies the
pleading requirements of Federal Rule of Civil Procedure 8(a)(2)”).
The complaint alleges that the plaintiff’s employer had a practice of discriminating against
Black employees and female employees in promotion, pay and benefits, and work assignments,
and that the company treated the plaintiff, a qualified Black woman, differently from white
Because the complaint is imprecise regarding the corporate identity of the plaintiff’s employer, the court
allows both Bridgeman and WBG to remain as defendants at this time.
employees and male employees through unequal pay, denied promotions, and disparate work
assignments. An adverse employment action can involve, for example, a failure to promote,
material change in salary or benefits, or reassignment with different responsibilities. See Crane v.
Mary Free Bed Rehab. Hosp., 634 F. App’x 518, 522-23 (6th Cir. 2015) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). The plaintiff has, therefore, plausibly alleged
that she is entitled to relief for discrimination based on race and gender. These Title VII claims
may proceed for factual development. 4
For an ADEA discrimination claim, the plaintiff must demonstrate that (1) she is a member
of the protected class, that is, she is at least forty years of age; (2) she was subjected to an adverse
employment action; (3) she was qualified for the position; and (4) she was treated differently from
similarly situated employees outside the protected class. Mitchell v. Vanderbilt Univ., 389 F.3d
177, 181 (6th Cir. 2004). A plaintiff may satisfy the plausibility standard for an ADEA claim by
alleging specific “‘facts regarding the names, relative ages, or qualifications’ of the younger
employees who allegedly assumed [her] job duties,” or by providing “examples of how those
employees were treated more favorably.” Smith v. Wrigley Mfg. Co. LLC, 749 F. App’x 446, 448
(6th Cir. 2018) (quoting House v. Rexam Beverage Can Co., 630 F. App’x 461, 463 (6th Cir.
2015)). Although the complaint does not identify or provide specific information about younger
employees that allegedly received better treatment, it does allege specific examples of how
younger employees were treated more favorably (e.g., permissive supervision, preferential work
schedules, and unequal pay). At this very early stage in the case, the court finds that these
allegations support a colorable claim that the plaintiff was discriminated against because of her
age. The plaintiff’s ADEA discrimination claim may therefore proceed for further development.
The plaintiff’s Title VII claim based on religion, noted by a check-box on the form complaint, will be
dismissed because it not supported by any allegations.
Title VII and ADEA Retaliation Claims
Next, the plaintiff brings Title VII and ADEA retaliation claims. Title VII makes it
unlawful to retaliate against employees for engaging in protected conduct – that is, opposing any
practice made unlawful by Title VII, or making a charge or testifying, assisting or participating in
any manner in an investigation, proceeding, or hearing under Title VII. 28 U.S.C. § 2000e-3(a).
The ADEA similarly prohibits employers from retaliating against an employee for opposing or
reporting age discrimination. 29 U.S.C. § 623(d). To state a retaliation claim, the plaintiff must
plausibly allege that: (1) she engaged in protected conduct under Title VII or the ADEA; (2) her
employer had knowledge of the protected activity; (3) the employer thereafter took an employment
action adverse to her; and (4) there was a causal connection between the protected activity and the
adverse employment action. Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013) (Title VII);
Blizzard v. Marion Tech. Coll., 698 F.3d 275, 288 (6th Cir. 2012) (citing Imwalle v. Reliance Med.
Prods., Inc., 515 F.3d 531, 544 (6th Cir. 2008)) (ADEA).
The complaint alleges that the plaintiff formally complained to the “chain of command” at
her employer concerning discrimination. For the purposes of initial review, the court infers that
the plaintiff presented company officials with the same complaints of discrimination that she
presents here. The complaint further alleges that in response company officials embarrassed and
harassed the plaintiff, threatened the plaintiff with specific retaliatory acts, and, when the plaintiff
continued to ask for an end to the discrimination, changed the plaintiff’s work assignments to her
substantial detriment. Accordingly, the plaintiff has plausibly alleged that she engaged in protected
activity under Title VII and the ADEA; that the employer was aware of the complaints; and that
the employer took an adverse employment action that was causally connected to the complaints.
Accordingly, the plaintiff has stated colorable Title VII and ADEA retaliation claims.
Finally, the court turns first to the plaintiff’s ADA claims. For an ADA disability
discrimination claim, a plaintiff must demonstrate that: (1) she is disabled; (2) she is otherwise
qualified for the position, with or without reasonable accommodation; (3) she suffered an adverse
employment action; (4) her employer knew or had reason to know of her disability; and (5) her
position remained open while her employer sought other applicants or replaced her. Babb v.
Maryville Anesthesiologists P.C., 942 F.3d 308, 320 (6th Cir. 2019); Ferrari v. Ford Motor Co.,
826 F.3d 885, 891-92 (6th Cir. 2016). The only reference to the plaintiff’s disability in the
complaint, however, is the statement: “I have a heart condition. Sad. But I am treated poorly when
I be sick, but other manager with health issue be treated good it’s understood.” (Doc. No. 1 at 4.)
The complaint does not allege, as required, that the plaintiff suffered any specific adverse
employment action. Babb, 942 F.3d at 320. Nor does the complaint allege that the plaintiff sought
or was denied an accommodation. See Brumley v. United Parcel Serv., Inc., 900 F.3d 834, 839
(6th Cir. 2018). In short, this non-specific allegation does not contain enough factual matter to put
defendants on notice of the plaintiff’s specific claim or plausibly suggest that the plaintiff is
entitled to relief for discrimination under the ADA.
The ADA prohibits retaliation by providing that “[n]o person shall discriminate against
any individual because such individual has opposed any act or practice made unlawful by [the
ADA] or because such individual made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under [the ADA].” 42 U.S.C. § 12203(a). To state a
retaliation claim, the plaintiff must plausibly allege that: (1) she engaged in protected conduct
under the ADA; (2) her employer had knowledge of the protected activity; (3) the employer
thereafter took an employment action adverse to her; and (4) there was a causal connection
between the protected activity and the adverse employment action. Rorrer v. City of Stow, 743
F.3d 1025, 1046 (6th Cir. 2014) (citing A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d
687, 697 (6th Cir. 2013)). As discussed above, the complaint does not allege that the plaintiff
suffered an adverse employment action based on disability. In addition, the complaint does not
allege that the plaintiff engaged in any protected activity under the ADA. Thus, the plaintiff has
not stated colorable ADA retaliation claim. The plaintiff’s ADA claims will, therefore, be
For these reasons, the court concludes that the plaintiff has stated non-frivolous claims
against Bridgeman and WBG for discrimination based on race and gender under Title VII,
discrimination based on age under the ADEA, and retaliation under Title VII and the ADEA. All
other claims and defendants will be dismissed.
An appropriate order will enter.
Aleta A. Trauger
United States District Judge
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