Bogard v. Hilton Worldwide et al

Filing 9

ORDER ADOPTING DE 8 Report and Recommendations, Directing Dismissal of Complaint sua sponte against Defendants Shelia Dunn, Tina Steel, and Bruce Salibury, and Directing Plaintiff to File and Amended Complaint as to Defendants Hilton Worldwide and Service Master by Stratos signed by Judge John T. Fowlkes, Jr. on 10/24/17. (Fowlkes, J.)

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

JANICE BOGARD,
Plaintiff,
v.
HILTON WORLDWIDE, SERVICE
MASTER BY STRATOS,
SHELIA DUNN, TINA STEEL, and
BRUCE SALISBURY,
Defendants.

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Case No. 2:17-cv-02705-JTF-tmp

ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION; ORDER DIRECTING DISMISSAL OF THE COMPLAINT
SUA SPONTE AGAINST DEFENDANTS SHELIA DUNN, TINA STEEL, AND BRUCE
SALISBURY; AND ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED
COMPLAINT AS TO DEFENDANTS HILTON WORLDWIDE AND SERVICE
MASTER BY STRATOS

Before the Court is Plaintiff Janice Bogard’s pro se Complaint against Defendants Hilton
Worldwide, ServiceMaster by Stratos, Shelia Dunn, Tina Steel, and Bruce Salisbury that was
filed on September 22, 2017, based on claims under the Age Discrimination in Employment Act
of 1967 (“ADEA”). (ECF No. 1.) The matter was referred to the Magistrate Judge pursuant to
Administrative Order 2013-05. On September 26, 2017, the Magistrate Judge granted Plaintiff
leave to proceed in forma pauperis. (ECF Nos 2 & 7.) The Magistrate Judge’s order also
advised Plaintiff to promptly notify the Clerk of Court of any changes in her mailing address and
that the Court would direct the Clerk to issue service of process upon the defendants, if

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appropriate, upon completion of the screening process pursuant to 28 U.S.C. § 1915 (d) and Fed.
R. Civ. P. 4 (c)(3). (ECF No. 7.)
On October 3, 2017, the Magistrate Judge entered a report and recommendation,
recommending that the case be dismissed sua sponte against the individually-named Defendants
and that Plaintiff file an Amended Complaint within thirty (30) days against Hilton Worldwide
and Serve Master by Stratos.

(ECF No. 8.) To date, no objections have been filed and the time

for doing so has expired.
II. LEGAL STANDARD
Congress passed 28 U.S.C. §636(b) “to relieve some of the burden on the federal courts
by permitting the assignment of certain district court duties to magistrates.”

See e.g. Baker v.

Peterson, 67 Fed. App’x. 308, 311, 2003 WL 21321184 (6th Cir. 2003) and Fed. R. Civ. P.
72(a). When a magistrate judge “submit[s] to a judge of the [district] court proposed findings of
fact and recommendations,” “any party may serve and file written objections to such proposed
findings and recommendations as provided by rules of court.” 28 U.S.C. § 636(b)(1)(B)–(C).
After reviewing the evidence, the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made” by the Chief Magistrate Judge. Id. The Court need not,
however, review any portion of the recommendation to which Plaintiff did not specifically
object, and may adopt the findings and rulings of the Chief Magistrate Judge to which no
specific objection is filed. Thomas v. Arn, 474 U.S. 140, 149–52 (1985).
III. ANALYSIS
Pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i-iii), the Magistrate Judge determined that
although Plaintiff’s complaint indicated her claim was based on age discrimination, she had
supported her complaint with documents from Hilton Worldwide and Service Master that only

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respond to her racial discrimination and retaliation claims. (ECF Nos. 1-2 & 1-4). Therefore,
the Magistrate Judge concluded that Plaintiff’s age-based discrimination claim lacked sufficient
facts to support a claim for relief and as such, was not entitled to a presumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Magistrate Judge recommended that the Court
allow Bogard to amend her complaint as to Defendants Hilton Worldwide and Service Master.
(ECF No. 8, pp. 4-5.)
In reference to Plaintiff’s allegations against Shelia Dunn, Tina Steel and Bruce
Salisbury, the Magistrate Judge recommended sua sponte dismissal of these claims because
Plaintiff had not demonstrated that these parties were her actual employer. Therefore, these
individually-named parties could not be subject to liability under the ADEA or Title VII.
Wathen v. General Electric, Co., 115 F.3d 400, 404-05 n.6 (6th Cir. 1997); Tennial v. United
Parcel Service, No. 213-cv-2277-JTF-tmp, 2015 WL 13022010, at *3 (W.D. Tenn. Nov. 12,
2015, aff’d, 840 F.3d 292 (6th Cir. 2016).

(ECF No. 8, pp. 5-6).

Plaintiff has not filed objections to the Magistrate Judge’s report and recommendation
under Fed. R. Civ. P. 72(b)(2) and West Tenn. L.R. 72.1(g)(2).

Therefore, after a review of the

Magistrate Judge’s Report and Recommendation and the entire record, the Court hereby
ADOPTS the Magistrate’s Report and Recommendation in its entirety and orders the claims
against Shelia Dunn, Tina Steel and Bruce Salisbury Dismissed with prejudice. The Court also
directs Plaintiff to file an Amended Complaint as to Defendants Hilton Worldwide and Service
Master by Stratos within thirty (30) days.
IT IS SO ORDERED this 24th day of October, 2017.

s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE
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