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
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