Tucker v. Alvis, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANDRE R. TUCKER,

Plaintiff,

v. Civil Action 2:20-cv-5335

Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

ALVIS, INC., et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, a former employee of Alvis, INC., brings this action under 42 U.S.C. § 1981

and related Ohio state statutes against Defendants, Alvis, INC. and Christine L. Franz, alleging,

inter alia, that Defendants discriminated against Plaintiff on the basis of race. This matter is

before the Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2) to

identify cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or any portion

of it, which is frivolous, malicious, fails to state a claim upon which relief may be granted, or

seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2);

see also Brown v. Bargery, 207 F.3d 863, 865, n.2 (6th Cir. 2000). Having performed the initial

screen, for the reasons that follow, the undersigned RECOMMENDS that the Court DISMISS

Plaintiff’s action pursuant to § 1915(e)(2) for failure to state a claim on which relief may be

granted.

This matter is also before the Court for consideration of Plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915(a). Plaintiff’s request to proceed in forma

pauperis is GRANTED. Plaintiff is permitted to prosecute this action without prepayment of

fees or costs, and any judicial officers who render services in this action shall do so as if the costs

had been prepaid. 28 U.S.C. § 1915(a).

I.

According to the Complaint, Plaintiff began working for Defendant Alvis, INC. as an

Accounts Payable Clerk in March 2019. (Compl. ¶ 6, ECF No. 1.) In his application, he had

disclosed a 2015 felony theft conviction. (Id. at ¶ 4–5.) On March 26, 2019, Plaintiff confirmed

to Defendant Franz, the Human Resources Director, that he had a 2015 felony theft conviction.

(Id. at ¶ 7–9.) Defendant Franz then terminated Plaintiff and explained to him that he could not

work at Alvis, INC. in a financial-related position until two years after the completion of his

sentence. (Id. at ¶ 10.) Defendant Franz and another Alvis, INC. employee encouraged Plaintiff

to apply for other, non-financial positions. (Id. at ¶ 11.) Between March 2019 and October

2020, Plaintiff applied for seventeen different positions, and Defendant Alvis, INC. either

rejected the applications or did not consider them. (Id. at ¶ 23.) Plaintiff alleges that he is

qualified for the positions for which he applied and that he “believes” that Defendant Alvis, INC.

hired non-Black individuals for the positions. (Id. at ¶ 52.) Citing Defendants’ failure to hire

him for these positions, Plaintiff further alleges that Defendants discriminated and retaliated

against him in violation of § 1981 and Ohio Revised Code § 4112.02. (Id. at ¶ 50–74.)

Additionally, Plaintiff asserts state-law claims for breach of contract and wrongful discharge.

(Id. at ¶ 75–84.) Plaintiff seeks declaratory and injunctive relief, as well as money damages. (Id.

at 85–92.)

II.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e) as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that—

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted. See

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)).

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements

set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a

“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’

. . . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,

550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule

12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual

matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550

U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (quoting Twombly, 550 U.S. at 556). In considering whether this facial plausibility

standard is met, a Court must construe the complaint in the light most favorable to the non-

moving party, accept all factual allegations as true, and make reasonable inferences in favor of

the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue

Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations omitted). The Court is not required,

however, to accept as true mere legal conclusions unsupported by factual allegations. Iqbal, 556

U.S. at 678 (citing Twombly, 550 U.S. at 555). In addition, the Court holds pro se complaints “to

less stringent standards than formal pleadings drafted by lawyers.” Garrett v. Belmont Cty.

Sheriff’s Dep’t, 374 F. App’x 612, 614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519,

520 (1972).

III.

Plaintiff asserts the following causes of action: (1) race discrimination under 42 U.S.C.

§ 1981; (2) retaliation under 42 U.S.C. § 1981; (3) race discrimination under Ohio Revised Code

§ 4112.02; (4) retaliation under Ohio Revised Code § 4112.02; (5) breach of contract; and

(6) wrongful termination.

The undersigned first considers Plaintiff’s federal claims before turning to his state-law

claims.

A. 42 U.S.C. § 1981—Race Discrimination

Plaintiff asserts that Defendants discriminated against him based upon his race in

violation of § 1981. (Compl. ¶ 50–58, ECF No. 1.) More specifically, Plaintiff alleges that he,

“a Black man, applied to [eighteen] open employment opportunities with Alvis which he was

qualified to hold. Alvis, INC. rejected [seventeen] of Plaintiff’s applications for employment

and terminated his contract as the Accounts Payable Clerk in March 2019.” (Id. at ¶ 52.)

Plaintiff adds that he “believes” Defendants hired non-Black individuals for the positions for

which he had applied. (Id.)

To establish a prima facie case of employment discrimination under 42 U.S.C. § 1981, a

plaintiff must show that

his employment terms vary from those which his employer accords to similarly

situated white workers. This can be shown by proof either that intentional racial

prejudice entered into his treatment or that a facially neutral practice . . . operates

discriminatorily against minority employees.

Long v. Ford Motor Co., 496 F.2d 500, 505–06 (6th Cir. 1974).

Here, Plaintiff’s allegation that he “believes” that Defendant Alvis, INC. hired less

qualified white individuals is conclusory and unaccompanied by allegations upon which the

Court can rely to draw such an inference. “While legal conclusions can provide the framework

of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 662.

Plaintiff’s unsupported speculation, absent plausible allegations upon which the Court could rely

to infer that Plaintiff was terminated (and/or not hired for various positions) because of his race,

renders his § 1981 discrimination claim insufficient. See, e.g., Sam Han v. Univ. of Dayton, 541

F. App’x 622, 627 (6th Cir. 2013) (upholding trial court’s dismissal of employment

discrimination pursuant to Rule 12(b)(6) where the plaintiff had failed to “plausibly show that

the . . . adverse employment decision . . . was a result of discrimination based upon his race or

his gender,” explaining that the “Court is not required to accept the inferences drawn by [the]

[p]laintiff”); see also Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012) (the plausibility

standard “applies to causation in discrimination claims”). Accordingly, the undersigned

RECOMMENDS that Plaintiff’s § 1981 discrimination claim be DISMISSED for failure to

state a claim on which relief may be granted.

B. 42 U.S.C. § 1981—Retaliation

Plaintiff also alleges that Defendants retaliated against him for filing complaints with the

Equal Employment Opportunity Commission (“EEOC”) in violation of § 1981. (Compl. ¶ 59–

65, 71–74, ECF No. 1.)

To make a prima facie case of retaliation under 42 U.S.C. § 1981 a plaintiff must show:

(1) she engaged in a protected activity; (2) her “exercise of such protected activity

was known by the defendant; (3) thereafter, the defendant took an action that was

‘materially adverse’ to the plaintiff; and (4) a causal connection existed between

the protected activity and the materially adverse action.”

Rogers v. Henry Ford Health Sys., 897 F.3d 763, 775 (6th Cir. 2018) (quoting Laster v. City of

Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014).

Applied here, even assuming Plaintiff has sufficiently alleged the first three factors, he

has once again failed to sufficiently allege the requisite causal connection between the alleged

protected activity and the unlawful adverse action. Rather, Plaintiff alleges, without further

support, that his “protected activities had a determinative effect on the retaliatory activity by

Defendants.” (Id. at ¶ 62.) Plaintiff’s conclusory allegations of retaliation are insufficient. See

Iqbal, 556 U.S. at 662; Taylor v. Donahoe, 452 F. App’x 614, 617, 620 (6th Cir. 2011)

(upholding trial court’s dismissal of a retaliation claim where the plaintiff alleged retaliation

“without much development”); see also Alexander v. Jackson, No. 05-73073, 2008 WL 559518,

at *2 (E.D. Mich. Feb. 27, 2008) (concluding that the plaintiff’s retaliation claim could not

survive a 12(b)(6) motion where the plaintiff failed to “plausibly show a causal connection”

between the protected activity and alleged adverse action). Because Plaintiff’s complaint lacks

plausible allegations upon which this Court could rely to conclude that Defendants retaliated

against him because he filed EEOC complaints, it is RECOMMENDED that his § 1981

retaliation claims be DISMISSED for failure to state a claim on which relief may be granted.

C. Plaintiff’s State-Law Claims

Because it is recommended that Plaintiff’s federal-law claims be dismissed, it is further

RECOMMENDED that the Court decline to exercise supplemental jurisdiction over Plaintiff’s

state-law discrimination, retaliation, breach of contract, and wrongful termination claims and that

the Court DISMISS those claims WITHOUT PREJUDICE to filing in state court. See 28

U.S.C. § 1367(c)(3); see also Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (“If the federal

claims are dismissed before trial, the state claims generally should be dismissed as well.”)

(internal quotation marks and citation omitted).

IV. DISPOSITION

In sum, Plaintiff’s motion seeking leave to proceed in forma pauperis is GRANTED.

(ECF No. 1.) In addition, for the reasons set forth above, it is RECOMMENDED that

Plaintiff’s federal claims be DISMISSED for failure to state a claim pursuant to § 1915(e)(2)

and that the Court decline to exercise supplemental jurisdiction over his state-law claims and

DISMISS those claims WITHOUT PREJUDICE to filing in state court.

V. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§ 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura __________

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE