Bolden v. Kellogg's

Filing 36

ORDER ADOPTING 33 REPORT AND RECOMMENDATIONS; GRANTING 30 Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr on 06/12/2017. (Mays, Samuel)

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

TAVIUS BOLDEN,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
KELLOGG’S,
Defendant.

No. 2:15-cv-02603-SHM-egb

ORDER

Before

the

Court

is

the

Magistrate

Judge’s

Report

Recommendation, dated May 25, 2017 (the “Report”).
33.)

and

(ECF No.

The Report recommends that the Court grant the Motion for

Summary

Defendant

Kellogg

Company (“Kellogg’s”) on February 7, 2017 (ECF No. 30).

On June

8,

Judgment

2017,

(the

Plaintiff

“Motion”)

Tavius

filed

Bolden

filed

by

his

“Objections

Magistrate Report and Recommendation” (the “Objections”).
No. 34.)
2017.

to

(ECF

Kellogg’s responded to Bolden’s Objections on June 9,

(ECF No. 35.)

For

the

following

reasons,

Kellogg’s Motion is GRANTED.

the

Report

is

ADOPTED

and

I.

Background
On September 11, 2015, Bolden filed his pro se Complaint

against Kellogg’s, asserting sex discrimination and retaliation
under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. §§ 2000e, et seq.
On February 7, 2017, Kellogg’s filed the pending Motion
seeking dismissal of the action.

Bolden did not respond to or

otherwise oppose the Motion.
On May 25, 2017, the Magistrate Judge entered the Report.
Because

Bolden

had

failed

to

respond

to

Kellogg’s

Motion,

including Kellogg’s Statement of Undisputed Material Facts in
support

of

that

motion

(“Kellogg’s

Statement

of

Facts”),

pursuant to Local Rule 56.1(d), the Magistrate Judge considered
Kellogg’s
Motion.

Statement

of

Facts

undisputed

for

purposes

of

the

(ECF No. 33 at 5.)

Addressing

Bolden’s

claim

for

hostile-work-environment

sexual harassment, the Magistrate Judge found that Bolden had
failed to establish a genuine issue of material fact as to three
elements:

(a) that

harassment,

(b) that

he
the

was

subjected

harassment

to

unwelcome

created

a

sexual

hostile

work

environment, and (c) that the employer failed to take reasonable
care

to

prevent

or

correct

any

(Id. at 5-8.)

2

sexually

harassing

behavior.

Addressing

Bolden’s

claim

for

quid

pro

quo

sexual

harassment, the Magistrate Judge found that Bolden had failed to
establish a genuine issue of material fact as to two elements:
(a) that he was subjected to unwelcomed sexual harassment in the
form

of

sexual

advances

or

requests

for

sexual

favors,

and

(b) that he refused to submit to sexual demands resulting in a
tangible employment action against him or that his submission to
unwelcomed

advances

was

receiving job benefits.

an

express

or

implied

condition

of

(Id. at 8-9.)

Addressing Bolden’s claim for retaliation, the Magistrate
Judge found that Bolden had failed to establish a prima facie
case of retaliation in that he had failed to show a causal
connection

between

any

protected

activity

in

which

he

had

engaged and a materially adverse action to which he had been
subjected on account of engaging in that activity.

(Id. at 9-

10.)

Bolden

The

Magistrate

Judge

found

that,

even

if

had

established a prima facie case, Bolden had failed to establish a
genuine

issue

of

material

fact

that

Kellogg’s

terminate Bolden was a pretext for discrimination.
The

Magistrate

Judge

also

found

that

Bolden

decision

to

(Id. at 10.)

had

failed

to

exhaust his administrative remedies for his retaliation claim.
(Id. at 10-11.)

3

II.

Legal Standards
Congress enacted 28 U.S.C. § 636 to relieve the burden on

the federal judiciary by permitting the assignment of districtcourt 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));

see

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

Gomez

v.

also

United

Baker

v.

For dispositive

motions, “[t]he district judge must determine de novo any part
of the magistrate judge’s disposition that has been properly
objected to.”
After

Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).

reviewing

the

evidence,

the

court

is

free

to

accept,

reject, or modify the magistrate judge’s proposed findings or
recommendations.

28 U.S.C. § 636(b)(1).

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 magistrate judge’s findings
and rulings to which no specific objection is filed.
151.

Id. at

Arguments made in an objection to a magistrate judge’s

report and recommendation that were not first presented to the
magistrate

for

consideration

are

deemed

waived.

See,

e.g.,

Becker v. Clermont Cty. Prosecutor, 450 F. App’x 438, 439 (6th
Cir. 2011); The Glidden Co. v. Kinsella, 386 F. App’x 535, 544

4

(6th Cir. 2010); Murr v. United States, 200 F.3d 895, 902 n.1
(6th Cir. 2000).1
III. Analysis
Bolden never responded to Kellogg’s Motion.

He does not

deny that he was served with Kellogg’s Motion or that he had
adequate time to respond before the Magistrate Judge entered the
Report.

Bolden had more than three and a half months to respond

or to ask for an extension of time in which to respond.
offers no reason for his failure to respond.
express

opposition

to

Kellogg’s

Motion

Bolden

Bolden waited to
until

after

the

Magistrate Judge had entered the Report recommending dismissal.
Bolden argues that Kellogg’s Motion should not be granted by
default (ECF No. 34 at 9), but the Report does not recommend
that Kellogg’s Motion be granted by default.
Judge

addressed

uncontested

Bolden’s

record

claims

evidence.

on

the

Because

1

The Magistrate

merits
any

based

arguments

on

the

Bolden

A district court may raise the waiver issue sua sponte.
Numerous district courts in this circuit have done so where
(1) no response was filed to a party’s objection to the report
and recommendation; or (2) a response was filed, but did not
argue waiver.
See, e.g., Tighe v. Berghuis, No. 1:12-CV-1314,
2016 WL 5537287, at *3 (W.D. Mich. Sept. 30, 2016) (no response
to objection); Lewis v. Spitters, No. 1:14-CV-917, 2015 WL
5682405, at *2 (W.D. Mich. Sept. 18, 2015) (response did not
argue waiver); Briggs v. Miles, No. 1:13-CV-228, 2015 WL
1120132, at *2 (W.D. Mich. Mar. 12, 2015) (no response to
various objections); Bauman v. City of Cleveland, No. 1:04-CV1757, 2015 WL 893285, at *8 (N.D. Ohio Mar. 3, 2015) (response
did not argue waiver); Enyart v. Coleman, 29 F. Supp. 3d 1059,
1070 (N.D. Ohio 2014) (response did not argue waiver).
5

raises

in

his

Objections

were

not

first

presented

to

the

Magistrate Judge for consideration, those arguments are waived.
See Becker, 450 F. App’x at 439; Glidden, 386 F. App’x at 544;
Murr, 200 F.3d at 902 n.1.
Even if Bolden had not waived the arguments he now raises,
those arguments do not specifically object to any aspect of the
Report’s findings of fact or conclusions of law.
sufficient

for

entirety.”

Bolden

to

“object[]”

(ECF No. 34 at 1.)

to

the

It is not

Report

“in

its

The Court should adopt the

Report’s findings and conclusions without further consideration
unless specific objections are made.

See Arn, 474 U.S. at 151.

In his Objections, Bolden “absolutely asserts that there
are genuine issues of material fact that exist[]” and recounts
his version of the events in question concerning his claims.
(ECF

No.

factual

34

at

3-7,

assertions.

12.)

The

Because

Court

Bolden

cannot
failed

consider
to

those

respond

to

Kellogg’s Statement of Facts, the Magistrate Judge was warranted
in considering those facts undisputed for purposes of Kellogg’s
Motion.

L.R. 56.1(d).

Notwithstanding Local Rule 56.1(d), in

his Objections, Bolden does not dispute any particular facts in
Kellogg’s Statement of Facts by “citing to particular parts of
materials

in

the

record”

or

by

“showing

that

the

materials

cited” in Kellogg’s Statement of Facts “do not establish the
absence . . . of a genuine dispute.”
6

Fed. R. Civ. P. 56(c)(1).

Bolden suggests that the Court should “seek to reassure itself
by

some

examination

of

the

record

judgment against a pro se litigant.”
Magistrate

Judge’s

Report

did

so,

before

granting

summary

(ECF No. 34 at 10)
but

Bolden

does

The
not

specifically address any factual findings that he asserts were
in error.
Bolden also fails to object to the Report’s conclusions of
law or application of the law to the facts.

The Magistrate

Judge found that Bolden had failed to establish a genuine issue
of material fact for multiple essential elements of each of his
claims.

Bolden does not specifically object to the Magistrate

Judge’s conclusion as to any element of his claims.

Bolden

suggests instead that he is “entitled to a jury trial if there
are any material issues in dispute.”

(Id. at 12.)

That is not

the standard by which a non-movant may avoid summary judgment.
As recognized by the Magistrate Judge’s Report, even a nonmovant who establishes a genuine issue of material fact as to
some elements of a claim cannot survive summary judgment where
the movant shows the “‘absence of a genuine issue of material
fact as to at least one essential element’ of the plaintiff’s
claim.”

(ECF No. 33 at 4 (quoting Jones v. Muskegon Cnty., 625

F.3d 935, 940 (6th Cir. 2010)).)

Bolden’s failure to establish

a genuine dispute as to each and every element of his claims
warrants granting Kellogg’s Motion on each claim.
7

Bolden’s remaining arguments do not justify rejection or
modification of the Report.

Bolden “does not dispute that he

failed to respond” to Kellogg’s Motion, but contends that “his
failure was a misstep” that should be excused.
9.)

(ECF No. 34 at

Bolden argues that, because he is a pro se litigant, the

Court

should

have

advised

him

that

he

needed

to

respond

to

Kellogg’s Motion, that the Court should order the parties to
reconsider

settlement,

and

that

excuse his failure to respond.

the

Court

has

discretion

(Id. at 9-11, 13.)

to

Non-prisoner

pro se litigants are not excused from properly responding to a
summary judgment motion or otherwise complying with Rule 56.
See Martinson v. Regents of Univ. of Mich., 562 F. App’x 365,
371-72 (6th Cir. 2014) (rejecting argument that plaintiff’s case
was

“somewhat

unique”

because

of

her

pro

se

status

and

concluding that plaintiff’s failure to respond to defendant’s
summary judgment motion was sufficient grounds for granting the
motion).

Even when Bolden responded to the Magistrate Judge’s

Report, Bolden failed to specifically object to any portion of
the Report.
For

the

foregoing

reasons,

the

Report

Kellogg’s Motion is GRANTED.

So ordered this 12th day of June, 2017.

8

is

ADOPTED

and

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

9