Kellett v. Memphis Light, Gas & Water

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATION and GRANTING Defendant's Motion for Summary Judgment signed by Judge John T. Fowlkes, Jr. on 1/31/14. (Fowlkes, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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WALTER B. KELLETT,
Plaintiff,
vs.
MEMPHIS LIGHT, GAS AND,
WATER,
Defendant.

No. 11-3045-JTF-tmp

ORDER ADOPTING THE MAGISTRATE’S REPORT AND RECOMMENDATION AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before

the

Recommendation

Court
filed

is
on

the

Magistrate

December

9,

Judge’s

2013

that

Report

and

recommends

granting the Defendant’s Motion for Summary Judgment, DE #18,
and dismissal of Plaintiff’s employment discrimination action
filed pursuant to Title VII of the Civil Rights Act, 42 U.S.C.
§2000
his

(e). (DE #33). On January 2, 2014, the Plaintiff filed

objections

to

the

report

and

recommendation.

(DE

#36).

Defendant filed a response to Plaintiff’s written objections to
the report and recommendation on January 15, 2014. (DE #37).
The
Report

Court
and

has

reviewed

Recommendation,

de
the

novo

the

legal

Magistrate

analysis,

Judge’s

Plaintiff’s

objections, Defendant’s response to Plaintiff’s objections, and
the

entire

Report

and

record.

The

Recommendation

Court
should
1

finds
be

the

Magistrate

adopted

and

Judge’s

GRANTS

the

Defendant’s Motion for Summary Judgment.
II.
On

March

complaint
(“EEOC”)

4,

with
that

employment

in

Plaintiff,

Equal

alleged

Memphis

he

was

similar

a

Employment

reverse

Plaintiff

reorganization,
employees

2011,

the

with

Specifically,

FINDINGS OF FACT

racial

Light

Gas

asserted
treated
positions,

that

White

male,

Opportunity

and

Water

after

the

not

a

Commission

discrimination

differently
had

filed

in

his

(“MLG&W”).
company’s

than

minority

received

timely

compensation or reevaluation, and had been retaliated against
for

filing

internal

complaints

against

his

employer.

Without

issuing a conclusive determination regarding Plaintiff’s claims,
the EEOC issued a Right to Sue notice on August 29, 2011, that
was received by Plaintiff on August 31, 2011.1
On

November

23,

2011,

Plaintiff

initiated

this

matter,

without legal representation, pursuant to Title VII of the Civil
Rights

Act

of

1964.

Plaintiff

alleges

that

MLG&W

retaliated

against him after he filed an internal complaint and that he was
not offered a choice when assigned new supervisory duties during
the company reorganization in 2008, unlike minority supervisors.
Finally,

Plaintiff

asserts

that

all

of

these

alleged

racially discriminatory practices are ongoing in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
1 DE #1.

2

resulting in Plaintiff filing a second charge of discrimination
with the EEOC on March 14, 2012.

In his second EEOC charge,

Plaintiff claims MLG&W has retaliated against him by adding more
employees under his supervision while additional employees were
not assigned to minority supervisors.
On

March

Magistrate
report

25,

Judge

and

2013,

for

the

matter

was

recommendation

of

all

to

the

determination,

administration,

referred

or

for

preliminary

and

pretrial

matters pursuant to 28 U.S.C. § 636 (b) and Fed. Rule Civ. P. 1.
On the same day, Defendant filed a Motion for Summary Judgment,
with attachments including a Statement of Undisputed Facts. (DE
#18).

Plaintiff filed his response to the Motion for Summary

Judgment on June 10, 2013, disputed Defendant’s Statement of
Facts, and offered exhibits in support of his complaint.

(DE

#26 and DE #27).
Based on his proposed findings of fact and determinations,
the

Magistrate

Judge

issued

a

report

and

recommendation

on

December 17, 2013, to grant the Defendant’s Motion for Summary
Judgment

pursuant

to

Fed.

Rule

Civ.

P.

56

because:

1)

Plaintiff’s claims are time-barred and equitable tolling should
not apply; and 2) Plaintiff has failed to allege a prima facie
case of reverse discrimination and/or retaliatory discharge. (DE
#35).

The

Magistrate

Judge

did

not

address

asserted in the second EEOC charge. (DE #34).
3

the

new

claims

Plaintiff filed

written objections to the report and recommendation on January
2, 2014, DE #36, and Defendant has filed a reply to Plaintiff’s
Objections, DE #37, that the Court has considered in issuing the
current ruling.
II. LEGAL STANDARD
After referring a dispositive motion to a Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B), the district judge must
review de novo a magistrate judge’s proposed findings of fact
and recommendations in dispositive motions. The rules provide:
Within fourteen days after being served with a copy,
any party may serve and file written objections to
such proposed findings and recommendations as provided
by the rules of court. A judge of the court shall make
a de novo determination of those portions of the
report or specified proposed findings or
recommendations to which objection is made. A judge of
the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge. The judge may also receive further
evidence or recommit the matter to the magistrate
judge with instructions.
See 28 U.S.C. §636 (b)(1)(B) and (C); Fed. Rule Civ. P. 72(b);
Baker v. Peterson, 67 Fed. App’x. 308, 311 (6th Cir. 2003). In
applying the de novo standard, Congress afforded the district
judge

sound

discretion

to

rely

on

proposed findings and determinations.

the

Magistrate

Judge’s

U.S. v. Raddatz, 447 U.S.

667, 676, 100 S.Ct. 2406, 2412, __ L.Ed.__ (1980).

The Court

need not conduct a de novo hearing, but must make a de novo
determination

based

on

the

record
4

only

to

matters

involving

disputed facts and findings. Mira, 806 F.2d at 637. Also, de
novo review is not required when the objections to the report
and recommendation are frivolous, conclusive or general. Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986).
III. ANALYSIS
Federal Rule Civ. P. 56(a) provides that the Court shall
grant summary judgment if the movant shows there is no genuine
issue of disputed material fact and the movant is entitled to
judgment as a matter of law. Geiger v. Tower Auto., 579 F.3d
614, 620 (6th Cir. 2009).

The record, including Plaintiff’s

objections, does not establish a genuine issue of disputed
material facts in order to survive Defendant’s Motion for
Summary Judgment.
The Magistrate Judge has recommended that the Defendant’s
Motion for Summary Judgment pursuant to Fed. Rule Civ. P. 56 be
granted. The report and recommendation contains the following
proposed conclusions of law: 1) Plaintiff’s allegations of
discriminatory acts before May 7, 2010 are time-barred2;

2)

2 DE #35; Because Kellett failed to file an EEOC charge within 300 days of
each of the following incidents, the Magistrate’s report expressly excluded
the following as time-barred: 1) the April 2, 2008 written reprimand, 2)
MLG&W‘s initial determination on May 2, 2008, to sustain Kellett’s reprimand;
3) the assignment of an additional twenty (20) new employees, duties, and
responsibilities under Kellett’s supervision in July 2008; 4) Kellett’s
temporary rotation to the Arlington facility in May 2008; 5) Kellett’s
rotation back to his original facility in his new position as Supervisor of
the Commercial/Industrial in July 2008; and 6) MLG&W’s decision on February
9, 2009 to sustain Kellett’s initial reprimand. All of these 2008 and 2009
incidents fall far outside the 300-day window in which the March 4, 2011
charge was filed with the EEOC.

5

Plaintiff did not offer any direct evidence of adverse
employment action nor did he identify a similarly situated
person who was treated more favorably; and finally, 3) Plaintiff
cannot establish a prima facie case of retaliation.
Agreeing with the Magistrate’s report, Defendant replies
that Plaintiff’s objections are without merit because: 1) he
failed to contest MLG&W’s Statement of Undisputed Material Facts
as required by Fed. Rule Civ. P. 56(e); 2) his discrimination
claim is based on race and not gender; 3) the charges all are
time-barred by the statute of limitations issue; 4) the reverse
racial discrimination standard applies because of Plaintiff’s
race, regardless of the demographic of other MLG&W employees; 5)
he failed to demonstrate adverse impact or similarly-situated
employees and 6) the pending EEOC charges constitute a separate
claim and are not before the Court at this time.
Plaintiff includes in his objections provisions of Fed.
Rules Civ. P. 38 and 72(b) and L.R. 47.1.3

The Court liberally

construes this verbiage as Plaintiff’s objection to the
dismissal of his case on a motion for summary judgment as a
denial of his right to a trial by jury.4 This argument is without
merit. A plaintiff charging racial discrimination in employment
must first fulfil the jurisdictional prerequisites to filing a

3 The objections also include unreferenced portions of the DOT Personnel
Manual and several provisions of the Fair Labor Standards Act.
4 DE #36, p. 3-4.

6

claim of employment discrimination by filing a timely charge of
discrimination with the EEOC pursuant to 42 U.S.C. §2000 (e).
Once a right to sue notice is issued by the EEOC, the Plaintiff
must then establish a prima facie case of racial discrimination
in order to survive dismissal under Fed. Rule Civ. P. 56.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S. Ct.
1817, __ L.Ed. ___ (1973).
Plaintiff disputes certain proposed factual findings in the
Magistrate’s report and recommendation and reiterates claims
previously asserted in his complaint. For instance, Plaintiff
notes the Magistrate stated that Kellett had received a written
reprimand regarding an incident in November 2007 with Mary
Wainwright, an African American female, without indicating that
Wainwright did not receive a similar written reprimand.
Plaintiff also contends the Magistrate failed to note that the
written reprimand was never presented to his direct manager,
Barbara Wilson, a White female, but only to his supervisor,
Craig Powers, an African American. Plaintiff adds that Eliza
King, an African American female, received a promotion to the
newly-created position, Manager of Customer Metering, during the
department reorganization in March 2008 despite Plaintiff’s
assertions that he was more qualified.

Plaintiff argues he was

unable to apply for the position because of his written
reprimand.
7

Plaintiff reiterates that he was transferred to the
Arlington Facility on or about May 2008, after he notified an
African American female manager that he wished to pursue the
Second Step in MLG&W’s complaint resolution process.5 Finally,
Plaintiff objects that the Magistrate did not include that MLG&W
delayed his reevaluation and compensation for over two and half
years, without interest or pension credit.6 Plaintiff contends
that all of these factors are evidence of continued retaliation.
The Court finds all of these objections insignificant.
The Magistrate found that all of these incidents occurred
prior to March 10, 2010 and are time-barred. The Court
calculates the three-hundred-day interval to be July 6, 2010 as
opposed to March 10, 2010.

Therefore, any alleged

discriminatory actions by MLG&W before July 6, 2010 are timebarred. As determined by the Magistrate, this would still
include all of the incidents asserted in Plaintiff’s complaint
as well as the added factual disputes in his objections.
Additionally, the Magistrate correctly discredited Plaintiff’s
references to his delayed reevaluation and compensation for his
added duties in June/July 2010 as a mere inconvenience instead

5 Plaintiff does not object that this factor was incorrectly omitted or
misstated in the Magistrate’s Report, only that it was direct retaliation for
Plaintiff’s filing the internal complaint.
6 DE #35, pp 18-19. The Magistrate actually considered the fact that
Plaintiff’s reevaluation was delayed to August 16, 2010, in his proposed
findings that the extensive time period between the filing of his internal
complaint and his reevaluation proved there was no nexus between the internal
complaint and MLG&W’s alleged retaliatory actions.

8

of adverse employment action particularly since he received
compensation for the reassignment.

Blackburn v. Shelby County,

770 F.Supp.2d 896, 919 (W.D. Tenn. 2010).

An adverse employment

action must be more than disruptive, inconvenient or an
alteration of job responsibilities. Id.
In the meantime, Plaintiff filed a second charge with the
EEOC on September 18, 2013.

In that charge, Plaintiff alleges

ongoing retaliation by his employer.

Accordingly, Plaintiff

contends the time-barred retaliation claims may still be pursued
under the continuing violations doctrine.7 The Magistrate Judge
determined that Plaintiff’s claim of continuing violations is
premature since the EEOC has not issued a Right to Sue Notice.
The Court agrees.
The exhaustion of administrative remedies is a prerequisite
to filing a lawsuit alleging Title VII discrimination. Williams
v. Northest Airlines, 53 Fed. Appx. 350, 351 (6th Cir. 2002). A
Plaintiff may only file a civil action regarding those claims,
after the EEOC dismisses or resolves the charge and issues a
Right to Sue Notice. Id.; 42 U.S.C. §2000 e-5 (f)(1); 29 U.S.C.
§626 (e).
Further, the Sixth Circuit has upheld that “hostile work
environment claims,” or those involving “repeated conduct,”
7 DE #36, pp. 16-17. Plaintiff quotes Roa v. LAFE, A-72-08, a New Jersey
Supreme Court case that purportedly bars employees from reviving time-barred
retaliation claims. However, Plaintiff argues that untimely retaliation
claims can be admissible during the trial of a timely claim.

9

require a victim to demonstrate his workplace involves
discriminatory intimidation, ridicule, and insults so as to
create an abusive work environment.

Wu v. Tyson Foods, Inc.,

189 Fed. Appx. 375, 378 (6th Cir. 2006) quoting, National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct.
2061, 153 L.Ed.2d 106 (2002). However, in hostile work
environment cases, the continuing violation doctrine limits acts
of discrimination falling outside of the three-hundred day
limitations period to cases having other actionable conduct that
occurred within the statutory period.
15.

Morgan, 536 U.S. at 114-

Therefore, the Court finds all claims referenced in the

pending EEOC charge may not be considered at this time.
In reference to the reverse discrimination claim, Plaintiff
objects that he must prove reverse race discrimination and
argues that he is actually within the minority based on the
racial composition of MLG&W’s employees.8

This argument is

flawed.
Title VII prohibits discrimination against members of both
minority and majority groups. Morris v. Family Dollar Stores of
Ohio, Inc. 320 Fed. Appx. 339, 340 (6th Cir. 2009)(employer was
a member of the same minority race as the employees he was
promoting); Cooper v. Jackson-Madison County General Hosp. Dist.
742 F.Supp.2d 941, 951-52

(W.D. Tenn. 2010); Murray 770 F.2d at

8 DE #36, p. 17-21.

10

67. However, a majority plaintiff must still establish a prima
facie case of reverse discrimination demonstrating he was
intentionally discriminated against despite his majority status.
In this case, the Court agrees with the Magistrate’s proposed
finding that Plaintiff, although establishing background
circumstances, failed to meet the criteria that similarlysituated employees in all relevant aspects were treated more
favorably.
Finally, Plaintiff objected to the Magistrate’s proposed
finding that he failed to identify any similarly-situated
individuals in satisfaction of the fourth element of a Title VII
claim.

Primes v. Reno, 190 F.3d 765, 766 (6th Cir. 1999).

Plaintiff asserts he “listed Callen Hays (White Male) and Becky
Delich (white Female) both supervisors as Plaintiff [who] had
the opportunity to make a choice to take on New [sic] and Duties
and Responsibilities.”9

The Magistrate concluded that neither

Griffin nor Washington were similarly-situated and that Kellett
had failed to identify the other two female employees.10

The

Court agrees that Kellett failed to identify similarly-situated
employees and with Defendant’s argument that Plaintiff perhaps
made a gender-based discrimination claim but not a reverse
9 DE #36, p. 24; DE #35, p. 15.
10 The report and recommendation also noted that company policy #21-10 was
inapplicable to Kellett because he was not placed in a temporary position,
but actually permanently received new employees under his supervision and
supplemental pay.

11

racial discrimination claim.
In employment discrimination cases filed under Title VII,
the failure to file a charge with the EEOC within three hundred
days of the discriminatory act(s) is treated in the same manner
as a failure to file within the statute of limitations. Zipes v.
Trans World Airlines, Inc. 455 U.S. 385, 393 (1982); Amini, 259
F.3d at 2001. This procedure provides notification to potential
defendants of Plaintiff’s claims and an opportunity to settle
them.
460,

Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d
463

(6th

Cir.

1998).

However,

the

three-hundred

day

requirement is subject to waiver, estoppel and equitable tolling
when the litigant establishes circumstances beyond his control.
Graham–Humphreys v. Memphis Brook Museum of Art, Inc., 209 F.3d
552, 560-61 (6th Cir. 2000).
The Court agrees with the Magistrate’s determination that
equitable

tolling

is

inapplicable.

All

allegations

in

the

instant complaint that occurred before July 6, 2010, instead of
May 7, 2010, are time-barred because Kellett failed to provide a
legitimate reason for equitable tolling based on any of the
following factors: 1) lack of notice of the filing requirement;
2) lack of constructive knowledge of the filing requirement; 3)
diligence in pursuing one’s rights; 4) absence of prejudice to
the

defendant;

and

5)

the

plaintiff’s

reasonableness

in

remaining ignorant of the particular legal requirement. Truitt,
12

148

F.3d

at

648.

Notably,

federal

courts

sparingly

allow

equitable tolling. Irwin v. Department of Veterans Affairs, 498
U.S. 89, 96, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990).
Plaintiff presents no law that would support an equitable
tolling in this case. His allegations of discriminatory
practices dating back to May 2008 may not be considered.
Further, there is no evidence of continuing violations that
would allow time-barred complaints to be considered after the
required three-hundred day filing deadline.

The Court finds

that Plaintiff has merely recited the same allegations found in
his complaint and all of his objections are without merit.
The Supreme Court has held that “even a pro se litigant,
whether plaintiff or defendant, is required to follow the law.
In particular, a willfully unrepresented plaintiff volitionally
assumes the risk and the hazards which accompany selfrepresentation.”

Id.

The Supreme Court has indicated that

procedural rules are not to be interpreted in order to excuse
mistakes committed by pro se litigants.

McNeil v. United

States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21
(1993).

The Magistrate has correctly concluded that equitable

tolling in this case is inappropriate and Plaintiff’s case
remains time-barred.

Ignorance of the law alone is insufficient

to warrant equitable tolling.

Rose v. Dole, 945 F.2d 1331, 1335

(6th Cir. 1991)(per curiam).
13

CONCLUSION
For the reasons set forth above, the Court ADOPTS the
Magistrate Judge’s Report and Recommendation to grant
Defendant’s Motion for Summary Judgment pursuant to Fed. Rule
Civ. P. 56(b).

Plaintiff has failed to meet the preliminary

jurisdictional requirement of Title VII cases and has failed to
establish a prima facie case of employment discrimination based
on reverse racial discrimination. Therefore, Defendant’s Motion
for Summary Judgment, DE #18, is GRANTED and the case DISMISSED.
IT is SO ORDERED on this 31st day of January, 2014.

s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE

14