Oden v. Mid South Health Rehab

Filing 10

ORDER Adopting Report and Recommendations DE 6 for Sua Sponte Dismissal; Denying as Moot DE 8 Motion to Dismiss. Signed by Judge John T. Fowlkes, Jr. on 05/01/2015. (Fowlkes, John)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
SHERRY ODEN,
)
)
Plaintiff,
)
)
v.
)
)
No. 2:15-cv-02184-JTF-dkv
MID SOUTH HEALTH REHAB,
)
)
Defendant.
)
)
ORDER ADOPTING THE REPORT AND RECOMMENDATION FOR SUA SPONTE
DISMISSAL

Before the Court comes Plaintiff Sherry Oden’s pro se Complaint alleging race
discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e. (ECF No. 1). This case was referred to the United States Magistrate Judge for
management and for all pretrial matters for determination and/or report and recommendation as
appropriate. (Admin. Order 2013-05, April 29, 2013). Pursuant to such Order, on March 26,
2015, the Magistrate Judge issued her Report and Recommendation that Plaintiff’s Complaint be
dismissed via 28 U.S.C. § 1915(e)(2) review. (ECF No. 6). Plaintiff did not file objections to
the Magistrate Judge’s Report and Recommendation. However, Plaintiff did file an Amended
Complaint on April 6, 2015, containing additional factual allegations. (ECF No. 7).
For the following reasons, the Court finds the Magistrate Judge’s Report and
Recommendation should be ADOPTED even with the additional facts laid out in Plaintiff’s
Amended Complaint.

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I. FACTUAL HISTORY
The Plaintiff has filed no objections to the Magistrate Judge’s proposed facts. Therefore,
the Court adopts the Magistrate Judge’s proposed findings of fact as the factual history. (ECF
No. 6 at 2-3). Further, the Court accepts as true the following additional factual allegations taken
from Plaintiff’s Amended Complaint. (ECF No. 7); see generally (ECF No. 7-4) (describing the
January 17, 2013, incident in more detail). Plaintiff alleges that Abby Lipford discriminated
against Plaintiff when “words of HIPPA violation came out of [Plaintiff’s] mouth.” (ECF No. 7
at 2). Additionally, Plaintiff alleges many other workplace complaints. (ECF No. 7-1) (stating
that food from the kitchen was “scorching hot”); see also (ECF No. 7-5) (stating that “[b]ecause
of those many [HIPPA] complaints [Plaintiff’s] work hours started to be less than other black
female CNA’s that w[ere] also on the same work shift as [Plaintiff].”). Plaintiff also felt
discriminated when the cafeteria staff would provide free meals to friends, but not to her. (ECF
No. 7-6).
II. STANDARD OF REVIEW
A. Review of a Magistrate Judge’s Determination
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

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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)).
B. Rule 12(b)(6)
Fed. R. Civ. P. 12(b)(6) provides for 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. 12(b)(6), the Court must determine
whether the complaint alleges “sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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,

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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). When undertaking a motion to dismiss,
pursuant to Fed. R. Civ. P. 12(b)(6), the Court may look to “‘matters of public record, orders,
items appearing in the record of the case, and exhibits attached to the complaint’” for guidance.
Barany-Synder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting Amini v. Oberlin Coll., 259
F.3d 493, 502 (6th Cir. 2001))).
III. ANALYSIS
A. The Magistrate Judge’s Report and Recommendation
In her Report and Recommendation, the Magistrate Judge screened Plaintiff’s original
Complaint pursuant to 28 U.S.C. § 1915(e)(2).

(ECF No. 6).

The Magistrate Judge

recommended that Plaintiff’s claims for race discrimination and retaliation must be dismissed for
failure to state a claim on which relief may be granted. Id. at 1. Specifically, the Magistrate
Judge’s proposed conclusions of law are as follows:
1. Claim for Race Discrimination
The Magistrate Judge concluded that Plaintiff had not alleged an adverse employment
decision. See Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th Cir. 2010) (“To establish
a claim of discrimination indirectly . . . a plaintiff must demonstrate (1) that he is a member of a
protected class; (2) that he suffered an adverse employment action; (3) that he was qualified for
the position; and (4) that a similarly-situated employee outside the protected class . . . was treated
more favorably than he.” (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973))). Specifically, the Magistrate Judge concluded that the “discipline” in this case did not

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amount to more than an “inconvenience or an alteration of job responsibilities.” (ECF No. 6 at
6-7) (citing Hollins v. Atlantic Co., 188 F.3d 652, 652 (6th Cir. 1999) (“A materially adverse
change in the terms and conditions of employment must be more disruptive than a mere
inconvenience or an alteration of job responsibilities.”). Plaintiff did not allege “‘termination of
employment,1 a demotion evidenced by a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material responsibilities, or other indices that
might be unique to a particular situation.’” Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 886 (6th
Cir. 1996) (citing Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)).
2. Claim for Retaliation
The Magistrate Judge determined that Plaintiff “failed to exhaust her administrative
remedies as to her claim of retaliation.” (ECF No. 6 at 7) (citing Randolph v. Ohio Dep’t of
Youth Servs., 453 F.3d 724, 731 (6th Cir. 2006) (“A person seeking to bring a discrimination
claim under Title VII in federal court must first exhaust her administrative remedies.”)). “The
claim must grow out of the investigation or the facts alleged in the charge must be sufficiently
related to the claim such that those facts would prompt an investigation of the claim.” Jones v.
Sumser Ret. Vill., 209 F.3d 851, 853 (6th Cir. 2000) (citing Davis v. Sodhexo, 157 F.3d 460, 463
(6th Cir. 1998)). Neither Plaintiff’s Charge of Discrimination nor accompanying right to sue
letter contain a reference to any protected activity necessary to claim retaliation. (ECF No. 6 at
8-9); see also (ECF No. 1-1).
B. De Novo Review of the Magistrate Judge’s Report and Recommendation
Plaintiff did not file objections to the Magistrate Judge’s Report and Recommendation.
The Sixth Circuit has emphasized that objections are to be specific in order to narrowly focus the

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Plaintiff quit voluntarily on March 4, 2013, to pursue schooling. (ECF No. 1-1 at 2). But see (ECF No. 7 at 2)
(Plaintiff “was terminated form Mid South Health + Rehab Center.”).

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district court’s attention on the dispositive and contentious issues. Howard v. Sec’y of Health
and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 14748 (1985)) ([O]bjections were to address specific concerns[,which is] . . . ‘supported by sound
considerations of judicial economy. . . . [This] thereby prevent[s] the district court from being
‘sandbagged’ [on appellate review] by a failure to object.”). Without an objection, it is difficult
for the Court to construe how the Magistrate Judge’s Report and Recommendation
misrepresented the facts of this case or what cause or issue the parties could find objection. The
failure to identify specific concerns with a Magistrate Judge’s report and recommendation allows
the party’s objection to be deemed a general objection, or a failure to object entirely. McCready
v. Kamminga, 113 F. App’x 47, 49 (6th Cir. 2004) (citing Howard, 932 F.2d at 509). However,
the Court will consider Plaintiff’s Amended Complaint in review of the Magistrate Judge’s
Report and Recommendation.
Upon de novo review, the Court does not find issue with the Magistrate Judge’s proposed
conclusions of law in dismissing this case. First, the Magistrate Judge properly found that one
incident of a short-supply of linen could not be construed as a material adverse employment
action. This single incident is a “mere inconvenience” that does not result in significantly
diminished responsibilities. See Hollins, 188 F.3d at 652; Kocsis, 97 F.3d at 886. Although
Plaintiff now claims that she was terminated, see (ECF No. 7-5 at 1), Plaintiff did not provide
this to the EEOC or the Magistrate Judge for consideration. Instead, Plaintiff stated that she
voluntarily quit to pursue schooling. (ECF No. 1-1 at 2). Such allegation regarding termination
is clearly not exhausted. Additionally, Plaintiff now states that her “work hours started to be less
than other black female CNA’s that w[ere] on the same work shift.” (ECF No. 7-5 at 2).
However, Plaintiff does not allege that this is based on racial discrimination, but instead based on

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her “many complaints . . . under the Whistleblower Protection Program.” Id. Further, Plaintiff’s
factual allegation regarding discrimination in free lunches does not change this outcome.
Plaintiff herself acknowledges that such lunches were given out because of friendship and not
because of discrimination of a “protected class.” (ECF No. 7-6) (“[O]ther CNA’s and nurses
routinely received meals for free because they were friends of the cafeteria staff.”). As such, the
Court finds dismissal of Plaintiff’s racial discrimination claim proper even in light of Plaintiff’s
Amended Complaint.
Second, the Magistrate Judge properly concluded that Plaintiff was barred from asserting
her retaliation claim for failure to exhaust administrative remedies. Although Plaintiff now
provides a factual basis for a retaliation claim, Plaintiff still did not provide the EEOC with
sufficient notice of her retaliation claim. Jones, 209 F.3d at 853 (“The claim must grow out of
the investigation or the facts alleged in the charge must be sufficiently related to the claim such
that those facts would prompt an investigation of the claim.”). Any claim stemming from
Plaintiff’s complaints regarding HIPPA violations cannot be the basis for suit in this Court
without first exhausting her administrative remedies. Randolph, 453 F.3d at 731 (“A person
seeking to bring a discrimination claim under Title VII in federal court must first exhaust her
administrative remedies.”). With Plaintiff’s new facts failing to cure the defects of the original
Complaint (i.e. exhaustion of administrative remedies), this Court finds the Magistrate Judge’s
analysis and recommendation proper even in light of Plaintiff’s Amended Complaint.
IV. CONCLUSION
For the reasons set forth above, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation.

Therefore, this case is dismissed sua sponte pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii). Defendant’s Motion to Dismiss, (ECF No. 8), is DENIED as MOOT.

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IT IS SO ORDERED on this 1st day of May, 2015.
s/John T. Fowlkes, Jr.
John T. Fowlkes, Jr.
United States District Judge

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