Johnson v. Cargill Inc. et al

Filing 22

ORDER Rejecting Report and Recommendations DE 20 re DE 10 Motion for Leave to File; Granting DE 10 Motion for Leave to File. Signed by Judge John T. Fowlkes, Jr. on 10/22/14. (Fowlkes, John)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
___________________________________________________________________________
FRANCOIS JOHNSON,

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Plaintiff,
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v.
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No. 2:12-cv-02748-JTF-dkv
CARGILL, INC. et al.,
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Defendants.
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_____________________________________________________________________________
ORDER REJECTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION ON PLAINTIFF’S REQUEST TO AMEND CIVIL COMPLAINT
PURSUANT TO RULE 15(c) OF CIVIL PROCEDURE
______________________________________________________________________________
Before the Court is Plaintiff Francois Johnson’s pro se Request to Amend Civil
Complaint Pursuant to Rule 15(c) of Civil Procedure. (ECF No. 10). On June 4, 2013, this
Court referred all pretrial matters within the Magistrate Judge’s jurisdiction pursuant to 28
U.S.C. § 636(b)(1)(A) for determination; and all other pretrial matters for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B-C). (ECF No. 4). On July 9, 2014, the
Magistrate Judge issued her Report and Recommendation that Plaintiff’s Request be denied.
(ECF No. 20). Plaintiff filed objections to the Magistrate Judge’s Report and Recommendation
on July 25, 2014. (ECF No. 21).
For the following reasons, the Court finds that the Magistrate Judge’s Report and
Recommendation should be rejected and Plaintiff’s Request to amend the Complaint be
GRANTED for the additional whistleblowing claim.

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I. FACTUAL HISTORY
Plaintiff’s objection recites the facts found in the Magistrate Judge’s proposed facts.
Therefore, the Court adopts the Magistrate Judge’s proposed findings of fact as the factual
history. (ECF No. 20 at 2-5). The Court notes one distinction however, the Magistrate Judge
found that Plaintiff missed out on a total of fifteen hours of work, (ECF No. 20 at 4), while
Plaintiff contends it was fifteen hours per day for a four day period, (ECF No. 21 at 3).
II. STANDARD OF REVIEW
A. Standard for District Judge’s Review of a Report and Recommendation
The district court has the authority to “designate a magistrate judge to conduct hearings,
including evidentiary hearings, and to submit to a judge of the court proposed findings of fact
and recommendations for the disposition, by a judge of the court, of any motion.” 28 U.S.C. §
636(b)(1)(B). “The district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3).
The district court has appellate jurisdiction over any decisions the magistrate judge issues
pursuant to such a referral. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72. The standard of review that
is applied by the district court depends on the nature of the matter considered by the magistrate
judge. See Fed R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.”); Baker v. Peterson, 67 Fed.
App’x 308, 310 (6th Cir. 2003) (“A district court normally applies a ‘clearly erroneous or
contrary to law’ standard of review for nondispositive preliminary measures. A district court
must review dispositive motions under the de novo standard.” (internal citations omitted)).

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B. Standard for Motion to Dismiss
Fed. R. Civ. P. 12(b)(6) provides for a dismissal of a complaint that “fail[s] to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). This allows the “defendant to
test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged
in the complaint is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (emphasis added)
(citing Nishiyama v. Dickson Cnty., 814 F.2d 277, 279 (6th Cir. 1987)).
When evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must
accept all factual allegations as true and construe them in light most favorable to Plaintiff, “and
determine whether the complaint contains ‘enough facts to state a claim to relief that is plausible
on its face.’” United States v. Cmty. Health Sys., 501 F.3d 493, 502 (6th Cir. 2007) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The “[f]actual allegations must be enough to raise a right to relief above [a] speculative
level.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007)
(first alteration in original) (quoting Twombly, 550 U.S. at 555). A claim is plausible on its face
if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). Although the complaint need not contain detailed factual allegations, a plaintiff’s
“[]bare 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) (“[T]he tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
“[D]etermining whether a complaint states a plausible claim is context-specific, requiring the . . .
court to draw on its experience and common sense.” Id. at 663-64 (citing Twombly, 550 U.S. at
556).

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III. ANALYSIS
A. The Magistrate Judge’s Report and Recommendation
In her Report and Recommendation, the Magistrate Judge screened Plaintiff’s Amended
Complaint pursuant to 28 U.S.C. § 1915(e)(2) as it states new facts and a new cause of action for
whistleblower activity. (ECF No. 20 at 2-3). The Magistrate Judge determined that Plaintiff’s
new facts and claim failed to state a claim upon which relief may be granted. (ECF No. 20 at 5).
Therefore, the Magistrate Judge’s proposed conclusions of law recommended the Plaintiff’s new
claim for whistleblowing and facts regarding the drug screening be dismissed for failure to state
a claim upon which relief may be granted. (ECF No. 20 at 7-10). Specifically, the Magistrate
Judge’s proposed conclusions of law are as follows:
1. Johnson’s New Retaliation Claims Set Forth in His Amended Complaint
The Magistrate Judge concluded that Plaintiff was time-barred from litigating his new
retaliation/whistleblowing claim by the Title VII statute of limitations under Tate v. United
Servs. Assocs., Inc., 75 F. App’x 470, 471 (6th Cir. 2003), which disallows a prior complaint to
toll the statute of limitations.

As such, the Magistrate Judge found that any new filings were

time-barred after August 28, 2012.
2. Johnson’s Additional Claims Stemming from Cargill’s Drug Test Policies
The Magistrate Judge concludes that Plaintiff’s additional facts regarding Defendant’s
drug testing policies are barred for failure to exhaust administrative remedies. See Younis v.
Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010).
B. Plaintiff’s Objections to the Magistrate Judge’s Report and Recommendation
Plaintiff’s Objection primarily recites facts for whistleblowing that are already found
within Plaintiff’s Request. (ECF Nos. 10, 21). This Court, however, finds the facts within the

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Request sufficient to allow Plaintiff to both amend his Complaint and allow the claim to relate
back to the original filing date. This Court should freely allow amendments before trial “when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Similar to Plaintiff’s retaliation claim under
Section 1983, his whistleblower claim charges the Defendant with retaliating against Plaintiff for
exercising a protected activity. As such, this Court finds that the amendment relates back to the
original filing date, as the “amendment asserts a claim . . . that arose out of the conduct,
transaction, or occurrence” that Plaintiff attempted to set out in his original pleading. Fed. R.
Civ. P. 15(c)(B); United States ex rel. Bledsoe v. Cmty. Health Sys., 501 F.3d 493, 516 (6th Cir.
2007) (“Rule [15(c)] also must be interpreted in light of the ‘fundamental tenor of the Rules,’
which ‘is one of liberality rather than technicality.’” (quoting Miller v. Am. Heavy Lift Shipping,
231 F.3d 242, 247 (6th Cir. 2000))). Fed. R. Civ. P. 15(c)(B) is “‘based on the notion that once
litigation involving particular conduct . . . has been instituted, the parties are not entitled to the
protection of the statute of limitations against’” that arising out of the same conduct. Cmty.
Health Sys., 501 F.3d at 516 (quoting Brown v. Shaner, 172 F.3d 927, 932 (6th Cir. 1997)); (ECF
No. 1) (Plaintiff’s original Complaint lays out the same “adverse” actions that could conclude a
retaliatory or whistleblowing cause of action.).1 With Plaintiff’s original filing date of August
30, 2012 as timely,2 Plaintiff’s claims are timely. Additionally, the Court finds no prejudice on

1

Although the Sixth Circuit has held that “[t]he filing of a prior complaint does not toll the ninety-day period” in the
context of filing a successive complaint, Plaintiff seeks to amend his original Complaint pursuant to Fed. R. Civ. P.
15(c) and not to file a successive complaint. Tate v. United Serves. Assocs., Inc., 75 F. App’x 470, 471 (6th Cir.
2003) (citing Wilson v. Grumman Ohio Corp., 815 F.2d 26, 27 (6th Cir. 1987)).
2

Title VII of the Civil Rights requires that a civil action be commenced within ninety days after receipt of a right to
sue notice, subject to equitable tolling principles. See 42 U.S.C. § 2000e-5(f)(1); Fox v. Eaton Corp., 615 F.2d 716,
718 (6th Cir. 1980) (“Title VII time periods ‘are jurisdictional in the sense that that phrase is used in relation to
statutes of limitations and equitable principles should apply in circumstances which warrant their application.’”
(quoting Leake v. Univ. of Cincinnati, 605 F.2d 255, 259 (6th Cir. 1979))); see also Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 152 (1984) (“Procedural requirements established by Congress for gaining access to the
federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.”); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 798 (1973). Although August 28, 2012 is 90 days after May 30, 2012 when
the “right to sue” letter was mailed, the Sixth Circuit recognizes a presumption that the mailing date is five-days

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the Defendant by allowing this amendment, as the Defendant was already on notice of claims
against their alleged retaliatory conduct.3 See Cmty. Health Sys., 501 F.3d at 516-17 (asking
“whether the party asserting the statute of limitations defense had been placed on notice that he
could be called to answer for the allegations in the amended pleading” (citing Santamarina v.
Sears, Roebuck & Co., 466 F.3d 570, 573 (7th Cir. 2006))).
Similarly, Plaintiff’s claims regarding Defendant’s drug testing policies were either set
out or attempted to be set out in Plaintiff’s original Complaint. Fed. R. Civ. P. 15(c)(B); (ECF
Nos. 1; 21 at 6). Further, Plaintiff has exhausted his administrative remedies regarding the
Defendant’s conduct. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 198 (1973) (“The Act
does not restrict a complainant’s right to sue to those charges as to which the Commission has
made findings of reasonable cause . . . .”). Plaintiff’s original Complaint states that “allegations
were not added to the EEOC charge because the EEOC representative would not put it on [sic]
the charge, [as] it was out of their jurisdiction.” (ECF No. 1 at 3). The Court finds that all of
Plaintiff’s additional facts support his original retaliation claim; therefore, there are no new
claims requiring an exhaustion of administrative remedies.

before the date of notice. See Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 (6th
Cir. 2000) (“[T]he ninety-day limitations term begins running[] on the fifth day following the EEOC’s mailing . . .
.”); Cook v. Providence Hosp., 820 F.2d 176, 179 n.3 (6th Cir. 1987) (“[T]here is a presumption that mail is received
by the addressee and the ninety day time limit begins to run five days after the EEOC Notice of Right to Sue is
mailed.”); see also (ECF No. 1-1 at 2) (showing the mailing date as May 30, 2012). Therefore, the statute of
limitations allowed for Plaintiff to file his original Complaint any time before and on September 2, 2012.
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Moreover, the Defendant has filed no objections to allowing Plaintiff to amend his Complaint.

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IV. CONCLUSION
For the reasons set forth above, the Court rejects the Magistrate Judge’s Report and
Recommendation and GRANTS Plaintiff’s Request to Amend Civil Complaint.
IT IS SO ORDERED on this 22nd day of October, 2014.
s/John T. Fowlkes, Jr.
John T. Fowlkes, Jr.
United States District Judge

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