Jones v. Summit County Job & Family Services

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KEELY JONES ) CASE NO.: 5:19CV169

)

Plaintiff, ) JUDGE JOHN ADAMS

)

v. )

) MEMORANDUM OPINION

)

SUMMIT COUNTY JOB AND )

FAMILY SERVICES )

)

Defendant. )

Pro se Plaintiff Keely Jones brings this action against Defendant Summit County

Job and Family Services alleging age discrimination in employment and retaliation. Doc.

1 (“Complaint”). Also before the Court is Plaintiff’s motion to proceed in forma

pauperis, which is granted. Doc. 2.

For the reasons that follow, this case is dismissed.

I. Background

Plaintiff’s allegations are sparse. Her two claims are stated in their entirety as

follows:

Claim 1 for age discrimination: Summit County Job & Family hired 23 year old

with a BS in Political Science, 38 year old with BA in Accounting and and [sic] a

44 year old with a Certificate in Eschology [sic] with 15 years of Case

Management Specialist 2 experience. I was terminated May 17, 2013 and the

Summit County Employees Handbook Policies and Procedures book does not

deny me for reapplying or being rehire [sic]. Claim 2 for retaliation: I filed an

age, race discrimination and unfair labor charge on June 12, 2013 and was dismiss

[sic] December 12, 2013.

Complaint at 5.

Attached to the Complaint is a charge Plaintiff filed with the Equal Employment

Opportunity Commission (“EEOC”) on November 20, 2017, alleging that on November

9, 2017, she was not hired by Defendant as a Case Management Specialist II because of

her age (58) and in retaliation for previously filing an EEOC charge of race and age

discrimination and retaliation. Doc. 1-1 at 1. On August 14, 2018, Plaintiff filed another

EEOC charge alleging that Defendant failed to hire her for a temporary Case

Management Specialist 1 position because of her age and in retaliation for having filed

the November 20, 2017 charge. Id. at 3. The EEOC issued a right to sue letter on

October 29, 2018. Id. at 2. The Court will consider the attachments to the Complaint in

determining whether Plaintiff states a plausible claim for relief. See Fed. R. Civ. P.

10(c).

Plaintiff asks the Court “to restore to be hired with front and back pay.”

Complaint at 6.

II. Law and Analysis

A. Standard of Review

Pro se pleadings are liberally construed by the Court. Haines v. Kerner, 404 U.S.

519, 520 (1972) (pro se complaints are held to less stringent standards than formal

pleadings drafted by lawyers); Boag v. MacDougall, 454 U.S. 364, 365 (1982).

Nevertheless, federal district courts are expressly required under 28 U.S.C. §

1915(e)(2)(B) to screen all in forma pauperis actions and to dismiss before service any

such action that is frivolous or malicious, fails to state a claim on which relief may be

granted, or seeks monetary relief from a defendant who is immune from such relief.

The standard for dismissal articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009)

and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) with respect to Fed. R. Civ. P.

12(b)(6) also governs dismissal under § 1915(e)(2)(B). Hill v. Lappin, 630 F.3d 468,

470-71 (6th Cir. 2010). Therefore, in order to survive scrutiny under § 1915(e)(2)(B), a

pro se complaint must set forth sufficient factual matter, accepted as true and with all

reasonable inferences drawn in plaintiff’s favor, to state a plausible claim for relief. See

Anson v. Corr. Corp. of Am., 529 F. App’x 558, 559 (6th Cir. 2013) (“Section

1915(e)(2)(B) authorizes dismissal if the action fails to state a plausible claim for relief or

is frivolous.”) (citations omitted).

B. Analysis

Even assuming for the purpose of this analysis that Plaintiff has exhausted her

administrative remedies, she fails to state a plausible claim for relief with respect to her

age discrimination and retaliation1 claims.

Under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq., it is unlawful for an employer to fail to hire an individual 40 years of age or older

because of the individual’s age. In the absence of direct evidence of age discrimination

in a failure to hire case, such as in this action, a plaintiff must allege that: (1) she is over

1 The Court notes that Plaintiff’s retaliation claim in Count 2 states that Defendant terminated her in

December 2013 in retaliation for having filed a charge of discrimination in June 2013. To the extent that

Plaintiff is alleging a retaliation claim for events that occurred in 2013, that claim is dismissed. Even if

Plaintiff timely filed an EEOC charge with respect to the adverse action alleged in 2013, she does not

allege when she received a right to sue letter or claim that she filed this action within the time period

permitted for filing a lawsuit in federal court as to the events in 2013. In the 2018 EEOC charge attached

to the Complaint, Plaintiff alleges both that Defendant did not hire her as a case manager because of age

discrimination and in retaliation for filing a 2017 EEOC charge. While not required to construct claims on

behalf of a pro se litigant, in the spirit of “active interpretation” of the Complaint the Court will consider

Plaintiff’s 2018 retaliation claim alleged in the EEOC charge. See Erwin v. Edwards, 22 F. App’x 579, 580

(6th Cir. 2001) (“Although liberal construction requires active interpretation of the filings of a pro se

litigant,” it does not require a court to conjure allegations on a litigant’s behalf.) (citations omitted).

the age of 40, (2) she applied for and was qualified for the position; (3) she was

considered for and denied the position; and (4) she was rejected in favor of a significantly

younger person with similar or inferior qualifications. George v. Youngstown State

Univ., No. 4:17CV2322, 2019 WL 118601, at *7 (N.D. Ohio Jan. 7, 2019) (citing among

authority Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000)).

Regardless of whether the evidence is direct or circumstantial, a plaintiff alleging an

ADEA claim must show that age was the “but for” cause of the employer’s adverse

action. See Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 811 (6th Cir. 2011) (citation

omitted).

“To establish a prima facie case of retaliation, a plaintiff must show: (1) that she

engaged in protected activity; (2) that defendant knew of this exercise of her protected

rights; (3) that defendant consequently took an employment action adverse to plaintiff;

and (4) that there was a causal connection between the protected activity and adverse

employment action.” Balmer v. HCA, Inc., 423 F.3d 606, 613-14 (6th Cir. 2005),

abrogated on other grounds by Fox v. Vice, 563 U.S. 826 (2011). With respect to the

causal connection required in the fourth prong, Plaintiff must plausibly allege that the

adverse action would not have been taken had she not engaged in protected activity.

Abbott v. Crown Motor Co., Inc, 348 F.3d 537, 542 (6th Cir. 2003); Nguyen v. City of

Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).

Under Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), a plaintiff need not

plead the elements of a prima facie case of employment discrimination in order to state a

plausible claim. That said, Swierkiewicz did not change the law of pleading, and “offers

no gateway for a plaintiff to side-step the ‘plausibility’ standard laid out in Twombly and

Iqbal.” Smith v. Wrigley Mfg. Co., LLC, 749 F. App’x 446, 448-49 (6th Cir. 2018)

(citing Keys v. Humana, Inc., 684 F.3d 605, 609-10 (6th Cir. 2010)).

While Plaintiff is not required to include detailed factual allegations in order to

state a plausible claim, she must provide more than an unadorned, the “defendant-

unlawfully-harmed-me” accusation. Iqbal, 556 U.S. at 678. Here, Plaintiff’s sparse

factual allegations in the Complaint (and EEOC charges attached thereto) amount to no

more than a conclusory claim that she was not hired by Defendant as a case manager

because of her age and was retaliated against for filing an EEOC charge. Even under the

liberal pleading standard afforded to pro se litigants, Plaintiff’s allegations are

insufficient to state a plausible claim for age discrimination or retaliation upon which

relief may be granted, and this action is dismissed pursuant to § 1915(e)(2).

III. Conclusion

For all the foregoing reasons, this case is dismissed pursuant to 28 U.S.C. §

1915(e)(2)(B). Plaintiff’s motion to proceed in forma pauperis is granted. Doc. 2. The

Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision

could not be taken in good faith.

IT IS SO ORDERED. Date:

August 30, 2019 _/s/ John R. Adams_________________

JUDGE JOHN R. ADAMS

UNITED STATES DISTRICT COURT