Grose v. Geithner et al

Filing 83

REPORT AND RECOMMENDATIONS on 76 Plaintiff's Motion for Summary Judgment and/or Alternatively Jury Trial and on 77 Defendant's Motion to Dismiss, or, Alternatively, Motion for Summary Judgment. ORDER DENYING 74 Plaintiff's " ;Leave of Court--Motion to Forward Unattached Exhibits," 75 Plaintiff's Motion for a Full Evidentiary Hearing Prior to Granting of Summary Judgment," 79 Defendant's Motion to Strike Plaintiff's Motion for Summary Judgment ," and 82 Plaintiff's "Motion Leave of Court, Request for Plaintiff to Respectfully Amend and Supplement his Pleadings, of Plaintiff's--Motion for Summary Judgment and/or Alternatively Jury Trial." Signed by Magistrate Judge Charmiane G. Claxton on 07/30/2014. (Claxton, Charmiane)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ANTHONY T. GROSE, SR.,
Plaintiff,
v.

Case 2:11-cv-02562-JDT-cgc

JACOB J. LEW, SECRETARY OF
THE TREASURY,
Defendant.

ORDER DENYING PLAINTIFF’S “LEAVE OF COURT—MOTION TO FORWARD
UNATTACHED EXHIBITS,” PLAINTIFF’S “MOTION FOR A FULL EVIDENTIARY
HEARING PRIOR TO GRANTING OF SUMMARY JUDGMENT,” DEFENDANT’S
MOTION TO STRIKE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND/OR ALTERNATIVELY JURY TRIAL, AND PLAINTIFF’S “MOTION LEAVE OF
COURT, REQUEST FOR PLAINTIFF TO RESPECTFULLY AMEND AND
SUPPLEMENT HIS PLEADINGS, OF PLAINTIFF’S—MOTION FOR SUMMARY
JUDGMENT AND/OR ALTERNATIVELY JURY TRIAL”
REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT AND/OR, ALTERNATIVELY JURY TRIAL AND DEFENDANT’S
MOTION TO DISMISS OR, ALTERNATIVELY, MOTION FOR SUMMARY
JUDGMENT

Before the Court are the following motions: Plaintiff’s “Leave of Court—Motion to Forward
Unattached Exhibits” (“Plaintiff’s Motion to Forward Exhibits”) (Docket Entry “D.E.” #74);
Plaintiff’s “Motion for a Full Evidentiary Hearing Prior to Granting of Summary Judgment”
(“Plaintiff’s Motion for Evidentiary Hearing”) (D.E. #75); Plaintiff’s “Motion for Summary
Judgment And/Or Alternatively Jury Trial” (“Plaintiff’s Motion for Summary Judgment”) (D.E.
#76); Defendant’s Motion to Dismiss or, Alternatively, Motion for Summary Judgment

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(“Defendant’s Motion to Dismiss or for Summary Judgment”) (D.E. #77); Defendant’s Motion to
Strike Plaintiff’s Motion for Summary Judgment (“Defendant’s Motion to Strike”) (D.E. #79); and,
Plaintiff’s “Motion Leave of Court, Request for Plaintiff to Respectfully Amend and Supplement
his Pleadings, of Plaintiff’s—Motion for Summary Judgment and/or Alternatively Jury Trial”
(“Plaintiff’s Motion to Amend”) (D.E. #82). All pretrial matters in this case within the Magistrate
Judge’s jurisdiction have been referred for determination pursuant to 28 U.S.C. § 636(b)(1)(A) and
all other pretrial matters have been referred for report and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B)-(C).
For the reasons set forth herein, Plaintiff’s Motion to Forward Exhibits (D.E. #74) is
DENIED, Plaintiff’s Motion for Evidentiary Hearing (D.E. #75) is DENIED, Defendant’s Motion
to Strike (D.E. #79) is DENIED, and Plaintiff’s Motion to Amend (D.E. #82) is DENIED. It is
further recommended that Plaintiff’s Motion for Summary Judgment (D.E. #76) be DENIED and
that Defendant’s Motion to Dismiss or for Summary Judgment (D.E. #77) be GRANTED IN PART
AND DENIED IN PART.
I. Introduction
On July 5, 2011, Plaintiff Anthony T. Grose, Sr. filed a pro se Complaint alleging claims of
employment discrimination in violation of numerous provisions of law against eleven named
defendants. (D.E. #1). Plaintiff paid the civil filing fee. (D.E. #2). On December 22, 2011,
Plaintiff filed a motion seeking leave to amend his complaint (D.E. #7), which the District Court
granted in a January 13, 2012 Order and construed as the Amended Complaint. (D.E. #8). In this
same Order, however, the District Court sua sponte dismissed all of Plaintiff’s claims in the
Amended Complaint with the exception of his Title VII, Age Discrimination in Employment Act

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(“ADEA”), and Rehabilitation Act claims against Defendant Timothy F. Geitner, Secretary of the
Treasury, in his official capacity. (D.E. #8).
On February 13, 2012, Plaintiff filed an “Amended Complaint” (D.E. #9) (“Second Amended
Complaint”), which the District Court construed as a motion to amend (D.E. #10). As so construed,
the District Court granted Plaintiff’s motion to amend “[t]o the extent that the complaint merely
clarifies and reorganizes the factual allegations and expands the prayer for relief”; however, the
District Court denied Plaintiff’s motion to amend “to the extent that Plaintiff is attempting to reassert
the claims that were dismissed.” (D.E. #10). The District Court reiterated that the “only claims in
this action are the claims against Defendant Geithner in his official capacity under Title VII, the
ADEA, and the Rehabilitation Act.” (D.E. #10). The substance of the claims Plaintiff currently
seeks to raise arises from allegations made in Equal Employment Opportunity (“EEO”) complaints
that he was discriminated against on the basis of sex, age, and veteran status as a disabled veteran,
and that he was subjected to retaliation for engaging in prior protected activity. (Second Am.
Compl. ¶¶ 3, 31).
On October 1, 2013, the District Court entered an Order, inter alia, to modify the docket to
substitute Jacob J. Lew, the current Secretary of the Treasury, for Timothy F. Geithner as the sole
Defendant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Thereafter, the abovementioned dispositive motions and motions related thereto were filed and are presently before the
Court.

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II. Proposed Findings of Fact1
Plaintiff was employed as a contract representative with Defendant. (Def.’s Mot. for Summ.
J., Exh. 8 at 201:9-16). Plaintiff and his son, Anthony T. Grose, Jr., both submitted employment
applications for what the parties describe as a vacancy opening, although they do not cite evidence
thereof. (Pl.’s Mot. for Summ. J., Exhs. 3-4).2 On November 8, 2006, Plaintiff filed an EEO
complaint under Agency Case Number EEODFS-06-0847-F. (Def.’s Mot. for Summ. J., Exh. 1).
On November 30, 2007, Plaintiff’s legal counsel withdrew his November 8, 2006 EEO complaint
and voluntarily dismissed his cause of action. (Id., Exh. 5).
On August 6, 2007, Plaintiff filed an EEO complaint under Agency Case Number EEODFS07-1159-M. (Id, Exhs. 2 & 6). On October 7, 2008, Plaintiff’s legal counsel withdrew his August
6, 2007 EEO complaint. (Id., Exh. 6).
On January 22, 2008, Plaintiff filed an EEO complaint. (Id., Exh. 3). On March 24, 2011,
the Equal Employment Opportunity Commission’s (“EEOC”) Office of Federal Operations (“OFO”)
denied reconsideration of its decision in Agency Case Number IRS080166F and advised Plaintiff
as follows: “This decision of the Commission is final, and there is no further right of administrative
appeal from the Commission’s decision. You have the right to file a civil action in an appropriate

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As set forth below, see, infra, Section III.F, neither Plaintiff nor Defendant responded
to one another’s Statements of Undisputed Material Facts. Accordingly, Local Rule 56.1
requires that each party’s Statement of Undisputed Material Facts be deemed undisputed.
However, the Court will only do so as to the portions of Plaintiff and Defendant’s facts that
contain citations to evidence in the record; the remaining portions, as also detailed, infra, Section
III.F, do not comply with Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1
and will not be considered for purposes of this Report and Recommendation.
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Plaintiff cites “Exhibits ( ) and ( )B”, but it appears to the Court that he intended to
cite Exhibits 3 & 4 because they do contain both employment applications of Plaintiff and his
son.
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United States District Court within ninety (90) calendar days from the date that you receive this
decision.” (Id., Exh. 7).3
Plaintiff has additionally filed an EEO complaint under Agency Case Number EEODFS-070853; however, he had stated that he does not seek relief in this civil action for allegations made in
that EEOC complaint. (Id., Exh. 4 at 5 & Exh. 8 at 29:11-19).
III. Proposed Analysis
A. Defendant’s Motion to Dismiss (D.E. #77)
Upon review of all of the motions presently before the Court, it is recommended that
Defendant’s Motion to Dismiss be considered at the outset, as resolution of this motion may resolve
other claims. Specifically, Defendant’s Motion to Dismiss asserts that Plaintiff has failed to exhaust
his administrative remedies before filing suit in federal court. Plaintiff filed a Response titled
“Motions in Opposition Suppression of this Honorable Court to Deny, the Defendant’s Document
No. [77 AND 77-1]” (“Plaintiff’s Response”) (D.E. #78) and Defendant filed a Reply to Plaintiff’s
Response (“Defendant’s Reply”) (D.E. #80).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a claim may be dismissed
for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In addressing
a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in the light most
favorable to plaintiff and accept all well-pled factual allegations as true. League of United Latin Am.
Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff can support a claim “by

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Plaintiff alleges that he withdrew this agency complaint; however, his evidence in
support of that assertion is the Department of Treasury’s Final Agency Decision in that case,
which does not demonstrate that his complaint was withdrawn. (Pl.’s Mot. for Summ. J., Exh 5).
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showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 563 (2007). This standard requires more than bare assertions of legal
conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). “[A]
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Any claim for relief must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).
“Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the
. . . .claim is and the grounds upon which it rests.” Id. (citing Twombly, 550 U.S. at 555).
Nonetheless, a complaint must contain sufficient facts that “state a claim to relief that is
plausible on its face’” to survive a motion to dismiss. Twombly, 550 U.S. at 570. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Twombly, 550
U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). A plaintiff with no
facts and “armed with nothing more than conclusions” cannot “unlock the doors of discovery.” Id.
at 678-79.
Pleadings and documents filed by pro se litigants are to be “liberally construed,” and a “pro
se complaint, however inartfully pleaded, must be held to a less stringent standard than formal
pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). However, “the lenient treatment generally accorded to pro se litigants has limits.”
Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991)). The basic pleading essentials are not abrogated in pro se cases. Wells v. Brown,

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891 F.2d 591, 594 (6th Cir. 1989) A pro se complaint must still “contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Barnett v. Luttrell, 414 Fed.
Appx. 784, 786 (6th Cir. 2011) (quoting Ashcroft, 556 U.S. at 678) (internal quotations and
emphasis omitted). District Courts “have no obligation to act as counsel or paralegal” to pro se
litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). District Courts are also not “required to create”
a pro se litigant’s claim for him. Payne v. Secretary of Treasury, 73 Fed. Appx. 836, 837 (6th Cir.
2003).
I. Title VII and Rehabilitation Act
Under both Title VII and the Rehabilitation Act, exhaustion of administrative remedies is
a prerequisite to filing suit in federal court. Brown v. General Services Admin., 425 U.S. 820, 831
(1976) (Title VII); Smith v. U.S. Postal Service, 742 F.2d 257, 260-62 (6th Cir. 1984) (Rehabilitation
Act). Specifically, this “entails (1) filing a timely charge of employment discrimination with the
[EEOC], and (2) receiving and acting upon the EEOC’s statutory notice of the right to sue.” Smith
v. HealthSouth Rehabilitation Center of Memphis, Ltd., 234 F. Supp. 2d 812, 914 (W.D.Tenn. 2002)
(citing Marquis v. Tecumseh Prods. Co., 26 F.R.D. 132, 151 (E.D.Mich. 2002)); see also 29 C.F.R.
§§1614.105(a)(1), .106(a), & .110(a). The burden of demonstrating exhaustion of administrative
remedies lies with the plaintiff. Smith, 234 F. Supp. 2d at 814 (citing McBridge v. Citgo Petroleum
Corp., 281 F.3d 1099, 1106 (10th Cir. 2002)).
“On a motion to dismiss, the Court may judicially notice, and consider as part of the
pleadings, ‘administrative agency proceedings which are regularly and officially recorded.”
Laurence Wolf Capital Management Trust v. City of Ferndale, 176 F. Supp. 2d 725, 728 n.1 (E.D.
Mich. 2000) (citing Michigan Bell Telephone Co. v. Strand, 26 F. Supp. 2d 993, 996 (W.D. Mich.

7

1998)); see also Lozar v. Birds Eye Foods, Inc., 678 F. Supp. 2d at 589 (W.D. Mich. 2009) (court
can consider “records or reports of administrative bodies” without converting a Rule 12(b)(6) motion
into a motion for summary judgment); Rhea v. Dollar Tree Stores, Inc., 395 F. Supp. 2d 696, 703
(W.D. Tenn. 2005) (concluding that EEOC charges of discrimination may be considered on a motion
under Rule 12(b)(6)).
As to EEODFS-06-0847-F and EEODFS-07-1159-M, Plaintiff withdrew these complaints
on November 30, 2007 and October 7, 2008, respectively. (Def.’s Mot. to Dismiss, Exhs. 5 & 6).
A voluntary withdrawal before a final agency decision is issued constitutes a failure to exhaust
administrative remedies. See, e.g., Branham v. Home Depot, USA, Inc., 225 F. Supp. 2d 762, 766
(E.D. Mich. 2002). Although Plaintiff appears to allege that his withdrawal of these complaints
should be equitably tolled because he had disagreements with his attorney regarding those decisions,
this is not a proper basis for equitable tolling. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96
(1990) (equitable tolling not appropriate for alleged poor attorney performance for a “garden variety
claim of excusable neglect”); Taylor v. Principi, 92 Fed. Appx. 274, 277 (6th Cir. 2004) (holding
that attorney error does not warrant equitable tolling); Cantrell v. Knoxville Cmty. Dev. Corp., 60
Fed. 3d 1177, 1179-80 (6th Cir. 1995) (concluding that client abandonment due to attorney’s mental
illness rose to level where equitable tolling may be appropriate); Robin Gordon v. Gordon R.
England, No. 07-2223, 2012 WL 2790375, at *10 (W.D.Tenn. July 9, 2012) (concluding that an
“intentional tactical decision, even if ill-advised or made without consulting [p]laintiff, is consistent
with ‘garden variety neglect’ and not attorney abandonment or misconduct and, thus, that equitable
tolling is inappropriate). Accordingly, it is recommended that Plaintiff did not exhaust his
administrative remedies as to these complaints, that he may not proceed to bring the claims
contained therein in this Court, and that Defendant’s Motion to Dismiss all claims arising out of

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these complaints be GRANTED.
As to EEODFS-08-0166-F, Plaintiff was required to file his civil action within ninety days
of receiving his right-to-sue notification. 42 U.S.C. § 2000e-16(c). “Courts apply this limit strictly
and ‘will dismiss suit for missing the deadline even by one day.’” Woodruff v. Peters, 482 F.3d 521,
525 (D.C. Cir. 2007) (quoting Wiley v. Johnson, 436 F. Supp. 2d 91, 96 (D.D.C. 2006)); Carl J.
McKibben v. Hamilton Cty., No. 99-3360, 2000 WL 761879, at *3 (6th Cir. 2000) (untimely
complaint not excused by plaintiff’s one day miscalculation of the ninety-day filing deadline) (citing
Goodman v. City Prods. Corp. , Ben Franklin Div., 425 F.2d 702, 703-04 (6th Cir. 1970)). Notice
is given, and hence the ninety-day limitations term begins running, on the fifth day following the
EEOC’s mailing of a right-to-sue notification to the claimant’s record residential address unless the
plaintiff rebuts that presumption with proof that he did not receive notification within that period.
Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 (6th Cir. 2000).
The Office of Federal Operations (“OFO”) denied Plaintiff’s reconsideration of the EEOC’s
decision on March 24, 2011. (Def.’s Mot. to Dismiss, Exh. 7). Thus, with the addition of five days
to receive the mailing, the time period to file in federal court ended on June 27, 2011; Plaintiff did
not file his Complaint until July 5, 2011. However, while the ninety-day filing requirement is strictly
construed, it is not jurisdictional and is therefore subject to waiver, estoppel, and equitable tolling.
Truitt v. County of Wayne, 148 F.3d 644, 646 (6th Cir. 1998).
The doctrine of equitable tolling applies when “a litigant’s failure to meet a legally mandated
deadline unavoidably arose from circumstances beyond that litigant’s control.” Graham, 209 F.3d
at 560-61. A plaintiff is entitled to equitable tolling “only if he shows (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Patterson v. Lafler, 455 Fed. Appx. 606, 609 (6th Cir. 2012) (quoting Holland v.

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Florida, 560 U.S. 631, (2010) (internal quotation marks omitted)). Plaintiff alleges that this is the
case. Specifically, on July 8, 2011, Plaintiff filed a motion (D.E. #3), which the District Court
construed as requesting that his “case be docketed as if it had been filed on June 25, 2011” (D.E. #8).
The District Court concluded that, although Plaintiff had signed his Complaint on June 25, 2011 and
the Clerk received it on June 27, 2011, because he improperly attempted to pay the civil filing fee
by personal check, his Complaint was returned. The District Court further concluded that it is
unable to grant motions to extend the filing period but, in the event a motion to dismiss the action
as time-barred was filed, Plaintiff may rely on the arguments set forth in that motion to request
equitable tolling.
Under the unique circumstances presented in the instant case, Plaintiff mailed his initial
Complaint on June 25, 2011 and the District Court rejected it due to his improper form of payment
on June 27, 2011—the final date of the ninety day filing period. (Pl.’s Resp. to Def’s Mot. to
Dismiss, Exhs. 1 & 2). Plaintiff was notified of its rejection via mail after the conclusion of the
ninety-day filing period and was then further delayed in re-filing his Complaint by the July 4
holiday.
Plaintiff asserts that he was further confused by the Local Rules and a guide for pro se
litigants proceeding in this Court. Specifically, Local Rule 77.2(b)(2) states that, when a pleading
is received but is unaccompanied by the required filing fee or an application to proceed in forma
pauperis, “the Clerk shall note ‘received’ and the date received thereon and immediately notify
counsel or the party who submitted the pleading that the pleading is held but not filed pending
receipt of the required filing fee or an order granting an application to proceed in forma pauperis.”
In addition, Plaintiff has provided a copy of a document entitled “United States District Court for
the Western District of Tennessee, Filing a Civil Case Without An Attorney, A Guide for the Pro

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Se Litigant” (“Pro Se Guide”) which refers to the payment of the $350.00 filing fee by “check or
money order.” (Pl.’s Resp. to Def’s Mot. to Dismiss, Exh. 4).4
Defendant argues in his Reply that equitable tolling should not apply for two reasons. First,
on July 8, 2011, when Plaintiff filed his motion requesting that his Complaint be docketed as if it
were filed on June 25, 2011, Plaintiff attached as an exhibit the Local Fees sheet. This document
states as follows regarding the acceptance of personal checks: “Personal or business checks are only
accepted from attorneys, law firms, and the press.” (Pl.’s July 8, 2011 Mot., filed at D.E. #3, at #31, Exh. 6). Second, Defendant argues that the Pro Se Guide relied upon by Plaintiff further states
as follows: “This procedural guide will assist you with how to file a civil action pro se and is
intended only as a general reference, NOT as a substitute for legal counsel. The fact that you have
chosen self-representation does not excuse you from complying with the Federal Rules of Civil
Procedure (Fed. R. Civ. P.) and the Federal Rules of Evidence . . . or this district’s Local Rules.”
(Pl.’s Resp. to Def.’s Mot. to Dismiss, filed at D.E. #78, at Exhibit 4, PageID 1013).
Upon review, it appears that under Plaintiff’s unique circumstances, he believed that a
personal check was an acceptable form of payment based upon the version he obtained of the
Court’s Pro Se Guide and that he was further confused and believed that, if there were any error with
his payment, he would be notified by an instantaneous method and his Complaint would be
considered to be filed on the date it was received once the payment was properly completed.
Plaintiff raised the issue of this confusion at the time of the filing of his July 5, 2011 Complaint—not

4

Plaintiff’s Exhibit 4 further contains the notation “Rev. 06/2006,” apparently indicating
that the latest revisions to this document were on that date. It is not clear to the Court what
version of this guide was publicly available at the time Plaintiff sought to file his Complaint,
although Plaintiff contends that his exhibit was the version available online in 2011. However,
the current version of this document only permits payment of the increased $400.00 filing fee by
cash, credit card, or a money order and is available on the Court’s website at
http://www.tnwd.uscourts.gov/pdf/content/ProSeGuide.pdf.
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merely after Defendant’s filing of his Motion to Dismiss. (See Pl.’s Compl., Exh. C at 28-30, 32-40
& Pl.’s “Motion—Defective Pleading,” filed at D.E. #3).
While the Court finds Defendant’s arguments persuasive, it is not clear whether Plaintiff had
obtained the Local Fees sheet before his attempt to initially file his Complaint or upon further
research after his Complaint was not filed. Additionally, while the Pro Se guide is not a substitute
for legal advice, the Court is ultimately convinced that Plaintiff’s confusion was warranted based
upon the various versions of documents he obtained. Thus, the Court recommends that Plaintiff has
met both prongs of the Holland test—that he has been diligently pursuing his rights and that an
extraordinary circumstance prevented his timely filing—and that equitable tolling is appropriate.

Thus, because Plaintiff clearly attempted to file his Complaint before June 27, 2011 deadline
and, for reasons unforeseen to him, it was not accepted and not considered to be filed on the date
it was first received by the Court, the Court finds recommends that equitable tolling applies to his
claims arising from EEODFS-08-0166-F. Thus, it is recommended that Defendant’s Motion to
Dismiss Plaintiff’s claims arising from EEODFS-08-0166-F be DENIED.
ii. ADEA
Under the ADEA, a plaintiff has the option of either invoking the administrative process or
filing suit directly in federal court. Hunter v. Secretary of U.S. Army, 565 F.3d 986, 993 (6th Cir.
2009). The United States Court of Appeals for the Sixth Circuit previously concluded that a plaintiff
could initiate administrative proceedings and, without exhausting his remedies thereunder, also
proceed to file directly in federal court. Langsford v. U.S. Army Corps of Engineers, 839 F.2d 1192,
1195 (6th Cir. 1988). However, the Langsford court relied in part upon 29 C.F.R. § 1613.513,
which, at the time of the Langsford decision, did not “terminate agency processing of a complaint

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or Commission processing of an appeal” and did not “hinder mediation or conciliation efforts.” Id.
Since the Langsford decision, 29 C.F.R. § 1613.513 has been amended to provide that the filing of
a civil action terminates the administrative proceedings. Ivey v. Rice, 759 F. Supp. 394, 399 (E.D.
Ohio 1991). Without having to decide the issue, the Ivey court reasoned that the Langsford holding
“may now be subject to question” based upon this change in the applicable regulations. Id.
Upon review, the Court is persuaded by the Ivey court’s reasoning that a plaintiff that
initiates his administrative remedies must exhaust them before proceeding to file directly in federal
court. For the reasons set forth above in consideration of Plaintiff’s Title VII and Rehabilitation Act
claims, Plaintiff has not demonstrated that he exhausted his administrative remedies with respect to
EEODFS-06-0847-F and EEODFS-07-1159-M. Accordingly, it is recommended that Defendant’s
Motion to Dismiss Plaintiff’s ADEA claims arising from EEODFS-06-0847-F and EEODFS-071159-M be GRANTED.
As to EEODFS-08-0166-F, also for the reasons set forth above, it is recommended that
Plaintiff exhausted his administrative remedies and that application of the doctrine of equitable
tolling permits Plaintiff to proceed with the claims arising from that administrative complaint in
federal court. Thus, it is recommended that Defendant’s Motion to Dismiss Plaintiff’s ADEA claims
arising from EEODFS-08-0166-F be DENIED.
In sum, it is recommended that the sole claims surviving Defendant’s Motion to Dismiss are
any Title VII, Rehabilitation Act, and ADEA claims raised in EEODFS-08-0166-F.

It is

recommended that all claims arising from EEODFS-06-0847-F and EEODFS-07-1159-M be
dismissed pursuant to Rule 12(b)(6) for failure to exhaust administrative remedies. Accordingly,
Defendant’s Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Thus, the Court
must proceed to consider the several preliminary issues raised by the parties regarding the cross-

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motions for summary judgment before considering whether summary judgment is appropriate.

B. Plaintiff’s Motion to Forward Exhibits
In advance of Plaintiff’s Motion for Summary Judgment (D.E. #76), Plaintiff filed his
Motion to Forward Exhibits (D.E. #74). At the time of filing his Motion to Forward Exhibits,
Plaintiff had not yet filed his Motion for Summary Judgment, although he did do so later that same
day on April 4, 2014. Plaintiff requests in advance of the Motion for Summary Judgment’s filing
that the Court permit him to file exhibits “that may have been excluded” from his Motion for
Summary Judgment. Plaintiff does not specify what exhibits were subsequently excluded or why
he believes he was prevented from filing the exhibits as he sought to do. In fact, Plaintiff’s Motion
for Summary Judgment ultimately contains nine exhibits and an Exhibit Inventory. Accordingly,
as Plaintiff does not provide any information as to what he believes he was unable to file or why he
claims he was unable to do so, and as his request was made before he actually filed his Motion for
Summary Judgment, Plaintiff’s Motion to Forward Exhibits is hereby DENIED.
C. Plaintiff’s Motion for Evidentiary Hearing
Next, Plaintiff filed his Motion for Evidentiary Hearing requesting that the Court hold a
hearing before considering summary judgment in favor of either party. Plaintiff also filed this
motion before either his own Motion for Summary Judgment or Defendant’s Motion for Summary
Judgment were filed. Plaintiff proposes to present a “vast amount of additional supporting
evidence” that was “not included” in his Motion for Summary Judgment. As with Plaintiff’s Motion
to Forward Exhibits, Plaintiff does not explain either what evidence was not filed or why he was
unable to do so.
The United States Court of Appeals for the Sixth Circuit has held that Rule 56 of the Federal

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Rules of Civil Procedure “does not require an oral hearing on a motion for summary judgment.”
Himes v. United States, 645 F.3d 771, 784 (6th Cir. 2011) (quoting Banfield v. Turner, 66 F.3d 325,
1995 WL 544085, at *4 (6th Cir. 1995)). Instead, the rule “requires an adequate chance to present
evidence and arguments[] and to respond to those of one’s opponent.” Himes, 645 F.3d at 784.
Plaintiff’s Motion for Evidentiary Hearing does not provide any grounds as to why he believes an
oral hearing is necessary in the instant case. Once again, it also does not provide any information
as to why he has “not included” the evidence he believes is essential to the resolution of his motion
heretofore. Accordingly, Plaintiff’s Motion for Evidentiary Hearing is hereby DENIED.
D. Defendant’s Motion to Strike (D.E. #79)
Next, Defendant has filed a Motion to Strike Plaintiff’s Motion for Summary Judgment.
(D.E. #79). Defendant asserts that Plaintiff’s Motion for Summary Judgment is actually an
“irregular and indiscernible pleading” in which it is “unclear . . . . whether the Plaintiff is seeking
summary judgment or merely requesting that the Court grant him a hearing or jury trial.”
Specifically, Defendant notes that Plaintiff’s purported Motion for Summary Judgment requests as
follows in its prayer for relief:
Plaintiff prays that the Court will honor his timely request. As it warrants this
Court’s interventions, not to dismiss any of [Grose’s] claims until a full evidentiary
hearing, pre-trial conference; status conference; is conducted to help resolve this
dispute amongst the parties.
(Def.’s Mot. to Strike at 19). Accordingly, Defendant requests that the motion be stricken pursuant
to Rule 8(a) of the Federal Rules of Civil Procedure and Local Rule 56.1.
Rule 8(a) applies to “pleadings” and requires, inter alia, a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Rule 7(a) sets forth the
only “pleadings” allowed in federal court, and motions such as Plaintiff’s Motion for Summary
Judgment are not considered as pleadings. See also Fed. R. Civ. P. 12(f) (providing that a Court
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may strike “from a pleading an insufficient defense or any immaterial, impertinent, or scandalous
matter” (emphasis added)).
Motions are governed by Rule 7(b), which requires that the motion “be in writing unless
made during a hearing or trial,” “state with particularity the grounds for seeking the order,” and
“state the relief sought.” Fed. R. Civ. P. 7(b). Local Rule 56.1 contains further requirements for
motions for summary judgment filed in this Court.
Motions to strike evidence offered in support of summary judgment are construed by this
Court as an evidentiary objection pursuant to Local Rule 56.1(e). Williams v. Regional Adjustment
Bureau, 2012 WL 4321291, No. 10-2305, at *9 (W.D. Tenn. Sept. 19, 2012). However, Defendant’s
Motion to Strike is not a mere objection to evidence Plaintiff relies upon in support of his Motion
for Summary Judgment; instead, Defendant’s Motion to Strike seeks that Plaintiff’s Motion for
Summary Judgment be stricken in its entirety because the relief sought is unclear.
Upon review, the Court agrees that Plaintiff’s Motion for Summary Judgment is convoluted
and fails to follow the requirements of Local Rule 56.1. It does contain portions that appear to
request summary judgment, including his assertions that certain facts are “undisputed” and “may
settle this dispute before a jury trial.” (Pl.’s Mot. for Summ. J., Exh. 2). Plaintiff also requests that
the Court award him summary judgment. (Id. at 15). It also contains, as Defendant notes, other
requests and arguments that are difficult to discern and do not appear to relate to a request for
summary judgment, including that he be “afforded the opportunity by a demand of jury trial.” Id.
In any event, this Court has concluded that, consistent with Rule 12(f), only pleadings are
“attackable through a motion to strike.” Seanette Johnson v. Total Renal Care, Inc., 2012 WL
896148, No. 1:11-cv-01047-JDB-egb, at *1 n.2 (W.D. Tenn. Mar. 15, 2012) (citing Clarence Moore

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v. Baptist Mem. College of Health Sciences, Inc., 2010 WL 100551, at *3 n.2 (W.D. Tenn. Jan. 7,
2010)). Further, Defendant’s Motion to Strike does not contain any evidentiary objections to be
considered pursuant to Local Rule 56.1(e), and therefore the Court need not consider this issue.
Accordingly, Defendant’s Motion to Strike Plaintiff’s Motion for Summary Judgment is hereby
DENIED.
E. Plaintiff’s Motion to Amend (D.E. #82)
Plaintiff also filed a Motion to Amend asking that he be permitted to “correct” his allegedly
“defective pleading” in response to Defendant’s Motion to Strike. (D.E. #82). As Defendant’s
Motion to Strike has been denied, Plaintiff’s request to file any exhibits to remedy any “defect[s]”
is unavailing. Further, Plaintiff has already requested in his Motion for Forward Exhibits and
Motion for Evidentiary Hearing to attach exhibits to his Motion for Summary Judgment that were
“excluded” and not filed at the time he filed his Motion for Summary Judgment. As set forth above
in consideration of these motions, Plaintiff has not provided any information regarding the exhibits
sought to be late-filed or any explanation as to why he was unable to file them. Accordingly,
Plaintiff’s Motion to Amend is hereby DENIED.
F. Cross-Motions for Summary Judgment
Finally, Plaintiff and Defendant have filed respective motions for summary judgment.
Plaintiff’s Motion for Summary Judgment contains a section titled “Stipulated Certain Facts or
Points of Laws that ‘Are Not’ In Dispute” and “Stipulated Facts or Points that ‘Remain’ In Dispute.”
(Pl.’s Mot. for Summ. J. at 6-14). It appears to the Court that these portions of Plaintiff’s Motion
for Summary Judgment were filed in an attempt to satisfy Local Rule 56.1(a), which requires that
any motion for summary judgment be “accompanied by a separate, concise statement of the material

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facts as to which the moving party contends there is no genuine issue for trial.” However, with the
exception of two statements, Plaintiff’s filing contains no citations to any evidence. Specifically,
many of Plaintiff’s statements cite “Exhibit ( )”; others have no citation whatsoever. (Pl.’s Mot.
for Summ. J. at 6-14). Defendant has not responded to these statements of fact.
Defendant’s Motion for Summary Judgment contains a brief Statement of Undisputed Facts
in Support of Motion for Summary Judgment (Def.’s Mot. to Dismiss or for Summ. J., Exh. 2, filed
at D.E. #77-2). However, Defendant’s Statement of Undisputed Facts does not include the majority
of the evidence it later relies upon in its Motion for Summary Judgment, thus never providing
Plaintiff with the opportunity to respond to the facts utilized in support of its motion. (See Def.’s
Mot. to Dismiss or for Summ. J. at 10-17).
Further, after removing the citations to the administrative filings from Defendant’s
Statement of Undisputed Facts (Def.’s Statement of Undisputed Facts ¶¶ 2-9), which the Court can
consider upon a Rule 12(b)(6) motion to dismiss, as Defendant has asked the Court to do, and after
removing the citations to pleadings (Def.’s Statement of Undisputed Facts ¶¶ 1, 10, 12), there is only
one statement of undisputed material fact that remains. The sole statement of undisputed material
fact states as follows: “In July 2007, the Plaintiff was employed as contact representative with the
Defendant.” (Def.’s Statement of Undisputed Facts ¶ 11). However, a review of the evidence cited
in support of this fact demonstrates that no date of Plaintiff’s employment is cited in that portion of
the exhibit but only that Plaintiff was “already a contract representative” at the time of a vacancy
announcement was posted—another event that appears for which there is not citation to evidence
setting forth the date or other relevant information despite its critical importance in the arguments
on the motion. (Def.’s Mot. for Summ. J., Exh. 8, at 201:9-16). Thus, from Defendant’s Statement

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of Undisputed Facts, the Court can only glean that Plaintiff was at some time employed as a contract
representative. There is nothing further for the Court to consider regarding whether a genuine issue
of material fact exists on the remaining claims. Plaintiff has also not responded to Defendant’s
Statement of Undisputed Facts.
Local Rule 56.1 requires as follows:
(a) Moving Party. In order to assist the Court in ascertaining whether there are any
material facts in dispute, any motion for summary judgment made pursuant to Fed.
R. Civ. P. 56 shall be accompanied by a separate, concise statement of the material
facts as to which the moving party contends there is no genuine issue for trial. Each
fact shall be set forth in a separate, numbered paragraph. Each fact shall be
supported by a specific citation to the record. If the movant contends that the
opponent of the motion cannot produce evidence to create a genuine issue of material
fact, the proponent shall affix to the memorandum copies of the precise portions of
the record relied upon as evidence of this assertion.
....
(b) Non-moving Party. Any party opposing the motion for summary judgment must
respond to each fact set forth by the movant by either:
(1) agreeing that the fact is undisputed;
(2) agreeing that the fact is undisputed for the purpose of ruling on
the motion for summary judgment only; or
(3) demonstrating that the fact is disputed.
Each disputed fact shall be filed with any memorandum in response to the motion.
The response must be made on the document provided by the movant or another
document in which the non-movant has reproduced the facts and citations verbatim
as set forth by the movant. In either case, the non-movant must make a response to
each fact set forth by the movant immediately below each fact set forth by the
movant. In addition, the non-movant’s response may contain a concise statement of
additional facts that the non-movant contends are material and as to which the nonmovant contends there exists a genuine issue to be tried. Each such disputed fact
shall be set forth in a separate, numbered paragraph with specific citations to the
record supporting the contention that such fact is in dispute.
Local Rule 56.1.
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With respect to citations to evidence, Rule 56(c) of the Federal Rules of Civil Procedure
requires as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c).
Upon review, neither party has complied with Local Rule 56.1. Additionally, portions of the
filings also do not comply with Rule 56(c) of the Federal Rules of Civil Procedure, as they contain
citations to pleadings instead of evidence. The Court has attempted to utilize the documents that
have been filed by the parties to resolve the motions for summary judgment on the merits but has
been unable to do so. Ultimately, it is not the task of the Court to create either party’s claims or
attempt to surmise what issues of material fact are or are not at issue and, even if the Court were so
inclined to do, there is not a feasible way to undertake this task based upon the submissions before
the Court. Accordingly, it is recommended that Plaintiff’s Motion for Summary Judgment and
Defendant’s request for summary judgment in his Motion to Dismiss or for Summary Judgment be
DENIED for failure to comply with Local Rule 56.1 and Rule 56 of the Federal Rules of Civil
Procedure.
IV. Conclusion
For the reasons set forth herein, Plaintiff’s Motion to Forward Exhibits (D.E. #74) is

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DENIED, Plaintiff’s Motion for Evidentiary Hearing (D.E. #75) is DENIED, Defendant’s Motion
to Strike (D.E. #79) is DENIED, and Plaintiff’s Motion to Amend (D.E. #82) is DENIED. It is
further recommended that Plaintiff’s Motion for Summary Judgment (D.E. #76) be DENIED and
that Defendant’s Motion to Dismiss or, Alternatively, Motion for Summary Judgment (D.E. #77)
be GRANTED IN PART AND DENIED IN PART.

DATED this 30th day of July, 2014.

s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON
UNITED STATES MAGISTRATE JUDGE

ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN
FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE REPORT. 28
U.S.C. § 636(b)(1)(C). FAILURE TO FILE THEM WITHIN FOURTEEN (14) DAYS MAY
CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS, AND ANY FURTHER
APPEAL.

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