Hughes v. Riviana Foods, Inc. et al

Filing 54

ORDER adopting 46 Report and Recommendations; denying 51 Motion; granting 19 Motion to Dismiss. Signed by Judge Samuel H. Mays, Jr on 11/3/2015. (Mays, Samuel)

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

ALPHONSO R. HUGHES,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
RIVIANA FOODS, INC., and
TEAMSTERS LOCAL 984,
Defendants.

No. 14-02910

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Before the Court is the Magistrate Judge’s October 9, 2015
Report and Recommendation (the “Report”) recommending that the
Court grant Defendant Riviana Foods, Inc.’s (“Riviana”) July 15,
2015 Partial Motion to Dismiss.
Mot.,

ECF

No.

19.)

Plaintiff

(Report and Rec., ECF No. 46;
Alphonso

R.

Hughes

(“Hughes”)

filed a Motion Requesting Interlocutory Appeal for the Partial
Motion to Dismiss on October 23, 2015.

(Mot., ECF No. 51.)

For the following reasons, the Magistrate Judge’s Report is
ADOPTED,

the

Partial

Motion

to

Dismiss

is

GRANTED,

and

the

Motion for Interlocutory Appeal is DENIED.
I.

Background

Hughes was an employee of Riviana.
2; Answer, ECF No. 10 at 1.)

(Compl., ECF No. 1 at

In his Complaint, he alleges

violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000(e), et seq. (“Title VII”), the Equal Pay Act of
1963,

29

U.S.C.

§

206

(“EPA”),

the

Age

Discrimination

in

Employment Act of 1967, 29 U.S.C. §§ 621, et seq. (“ADEA”), the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et
seq. (“ADA”), and the National Labor Relations Act, 29 U.S.C. §
158(a)(4) (“NLRA”).

(Compl., ECF No. 1 at 2.)

On July 15, 2015, Riviana filed a Partial Motion to Dismiss
Hughes’

ADEA,

NLRA,

and

ADA

claims.

In

her

Report,

the

Magistrate Judge concludes that Hughes has failed to comply with
the procedural requirements of the ADEA, the NLRA, and the ADA.
(Report and Rec., ECF No. 46 at 3-5.)

The Magistrate Judge also

points out factual inconsistencies in Hughes’ pleadings.
at 6-7.)

(Id.

On those grounds, she recommends that Riviana’s Motion

be granted.
Hughes has not filed an objection to the Magistrate Judge’s
Report.

On October 23, 2015, however, he filed a motion styled

Motion Requesting an Interlocutory Appeal for the Partial Motion
to Dismiss.

(Mot., ECF No. 51.)

se,

to

appears

Judge’s
Dismiss.

Report

be
is

under
an

the

order

Hughes, who is proceeding pro

impression
granting

the

that

the

Partial

Magistrate
Motion

to

He states that he “respectfully request[s] the court

to reverse the Defendant’s Motion for Partial Dismissal.”
at 2 (emphasis added).)

2

(Id.

Interpreted
appeal,

Hughes’

as

a

request

Motion

is

to
well

not

certify
taken.

U.S.C. § 1292(b) as grounds for an appeal.

an

interlocutory

Hughes

cites

(Id. at 1.)

28

Section

1292(b) applies only to orders, not reports and recommendations.
Section 1291,

governing

interlocutory

appeals

more

generally,

also applies only to orders.

Because his Motion substantively

addresses

to

the

Partial

Motion

Dismiss

and

the

Magistrate

Judge’s Report, the Court construes it as an objection, asking
the Court to reject the Report and deny the Partial Motion to
Dismiss.

The Court will consider the Motion, construed as an

objection, on its merits.

To the extent the Motion might be

construed as a motion to certify an interlocutory appeal, it is
DENIED.
II.

Standard of Review

Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of district
court duties to magistrate judges.
237

F.3d

States,

598,
490

602

U.S.

(6th
858,

Cir.

See United States v. Curtis,

2001)

869-70

(citing

(1989));

Gomez

see

v.

also

Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

United

Baker

v.

“A district

judge must determine de novo any part of a magistrate judge’s
disposition that has been properly objected to.”
P.

72(b);

28

U.S.C.

§

636(b)(1)(C).

After

Fed. R. Civ.
reviewing

the

evidence, the court is free to accept, reject, or modify the
3

proposed findings or recommendations of the magistrate judge.
28 U.S.C. § 636(b)(1)(C).

The district court is not required to

review——under a de novo or any other standard——those aspects of
the report and recommendation to which no objection is made.
Thomas v. Arn, 474 U.S. 140, 150 (1985).

The district court

should adopt the findings and rulings of the magistrate judge to
which no specific objection is filed.
“The
does

not

tantamount

filing
meet
to

of

the
a

vague,

general,

requirement

complete

Id. at 151.

of

failure

or

conclusory

specific
to

objections

objections

object.”

Cason, 354 F. App’x 228, 230 (6th Cir. 2009).

and

is

Zimmerman

v.

Parties cannot

validly object to a magistrate’s report without explaining the
source of the error.

Howard v. Sec’y of Health & Human Servs.,

932 F.2d 505, 509 (6th Cir. 1991).
III. Analysis
Considering the ADEA claim, the Magistrate Judge concludes
that Hughes failed to “file a charge of discrimination with the
EEOC before bringing suit in federal court,” as required by 29
U.S.C. § 626(d).

(Report and Rec., ECF No. 46 at 3.)

Section

626(d) provides, in relevant part, that “[n]o civil action may
be commenced by an individual under this section until 60 days
after a charge alleging unlawful discrimination has been filed
with the [EEOC].”

29 U.S.C. § 626(d)(1).

Hughes did not allege

age discrimination in his charges filed with the EEOC.
4

(Charge

of Discrimination, ECF No. 1-2; Charge of Discrimination, ECF
No.

1-3;

Charge

of

Discrimination,

ECF

No.

1-4;

Charge

of

Discrimination, ECF No. 1-5.)
In his objection, Hughes does not challenge the Magistrate
Judge’s facts or the legal requirements.

He argues that filing

first with the EEOC should not have been necessary because the
discrimination was obvious:
The Plaintiff filed ADEA because EEOC found fought in
the company for sex discrimination and equal pay act
because of two females getting paid higher wages,
doing the same job, Plaintiff and two of the
Plaintiff’s
coworkers
were
denied
raises
and
promotions. Both the females were under the age of 40
and the Plaintiff and two of his male coworker s were
over 40. This charge should be granted because an
investigation wasn’t needed.
(Mot., ECF No. 51 at 1 (errors in original) (emphasis added).)
Neither obviousness nor likelihood of success on the merits is
an

exception

Because

to

Hughes

the

failed

procedural

requirements

to

his

exhaust

of

§

administrative

626(d).
remedies

with the EEOC, his ADEA claim must be DISMISSED.
Considering

the

NLRB

retaliation

claim,

the

Magistrate

Judge concludes that Hughes failed to “obtain[] a final order of
the NLRB on his charge” before bringing suit in federal court,
as required by 29 U.S.C. § 160(f).
at 5.)

(Report and Rec., ECF No. 46

Where a plaintiff alleges retaliation, “the dispute must

be heard by the NLRB, as the courts are not the proper tribunal
to adjudicate such issues and must defer to the NLRB’s primary
5

jurisdiction.”

Cox

v.

J

Pepsi-Cola

Bottlers,

Inc.,

2014

WL

878858 at *2 (S.D. Ohio Mar. 5, 2014) (citing Sears, Roebuck &
Co. v. San Diego County Dist. Council of Carpenters, 436 U.S.
180, 197 (1978)).

“Any person aggrieved by a final order of the

[NLRB] granting or denying . . . relief . . . may obtain a
review of such order in any United States court of appeals in
the circuit wherein the unfair labor practice in question was
alleged to have been engaged in . . . .”

29 U.S.C. § 160(f)

(emphasis added).
Hughes argues in his objection that he has filed charges
with the NLRB.

(Mot., ECF No. 51 at 1-2.)

As he points out,

however, he “had charges with . . . Teamsters Local 984, not
Riviana Foods Inc.”

(Id.; NLRB Order, ECF No. 1-12.)

Because

Hughes has not obtained a final order from the NLRB on his
retaliation claim, his NLRB retaliation claim must be DISMISSED
for failure to satisfy the requirements of 29 U.S.C. § 160.
Considering the ADA claim, the Magistrate Judge concludes
that

Hughes

failed

to

“file

charges

with

the

EEOC,”

operates “as a condition precedent to judicial review.”

which

(Report

and Rec., ECF No. 46 at 5 (citing Parry v. Mohawk Motors of
Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000).)
plaintiff

may

bring

suit

on

an

uncharged

claim

Although “a
if

it

was

reasonably within the scope of the charge filed,” the Magistrate
Judge

concludes

that

the

ADA

claim
6

of

failure

to

provide

reasonable

accommodations

Hughes’ EEOC filings.

is

outside

the

reasonable

scope

of

Johnson v. Cleveland City School Dist.,

344 Fed. App’x 104, 109 (6th Cir. 2009).
In

his

objection,

include

his

claim

of

Hughes

argues

that

non-accommodation.

his
He

EEOC

argues

filings
that

he

“presented to the courts my sworn stamped EEOC Affidavit stating
that

I

requested

occasions.”

reasonable

accommodations

(Mot., ECF No. 51 at 2.)

details.

on

(Charge

the
of

basis

of

Discrimination, ECF No. 1-3.)

Only two mention

disability,

Discrimination,

several

None of Hughes’ EEOC

filings mentions a failure to accommodate.
discrimination

on

ECF

without

No.

1-2;

further

Charge

of

Neither of those two includes

within its date ranges November 1, 2012, the date of the alleged
failure to reasonably accommodate set forth for the first time
in the Complaint.

(Compl., ECF No. 1-1 at 3.)

Hughes’ ADA

claim of failure to provide reasonable accommodations is not
reasonably within the scope of his EEOC charges and must be
DISMISSED.
IV.

Conclusion

For the foregoing reasons, the Magistrate Judge’s Report is
ADOPTED,

the

Partial

Motion

to

Dismiss

is

GRANTED,

Motion Requesting an Interlocutory Appeal is DENIED.

So ordered this 3d day of November, 2015.

7

and

the

/s/ Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

8