Davis v. Discover Financial Services

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TAMMYE DAVIS,

Plaintiff,

Civil Action 2:22-cv-2857

v. Chief Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

DISCOVER FINANCIAL SERVICES,

Defendant.

OPINION AND ORDER

With the consent of the parties and by Order of Reference (ECF No. 26), pursuant to 28

U.S.C. § 636(c), this matter is before the Court for consideration of Defendant’s Motion to

Dismiss Amended Complaint. (ECF No. 18 (the “Motion to Dismiss”).) For the reasons that

follow, the Motion to Dismiss (ECF No. 18) is GRANTED.

I. BACKGROUND

Plaintiff, proceeding pro se, initiated this action on July 19, 2022. (ECF No. 1.) On

August 24, 2022, the Court determined that Plaintiff’s Complaint, ECF No. 1-1, violated Federal

Rule of Civil Procedure 8(a) because it omitted a statement of the claim showing Plaintiff is

entitled to relief and a request for relief, and the Court ordered Plaintiff to cure these

deficiencies. (ECF No. 6.) On September 12, 2022, Plaintiff filed a letter to the Court providing

some additional information regarding the nature of the claims at issue. (ECF No. 8.) On

September 14, 2022, the Court directed Plaintiff to file an Amended Complaint which

specifically articulated the bases of their alleged harassment and discrimination claims in a

manner consistent with Federal Rule of Civil Procedure 8(a). (ECF No. 9.) On October 5, 2022,

Plaintiff filed an Amended Complaint, attached to which was another letter to the Court setting

forth additional allegations. (ECF No. 11.) On October 7, 2022, the Court performed an initial

screen of Plaintiff’s Amended Complaint, liberally construing it to also include Plaintiff’s other

filings, and concluded that Plaintiff could proceed. (ECF No. 12.)

On February 10, 2023, Defendant Discover Financial Services (“Discover”) filed the

subject Motion to Dismiss, generally arguing that Plaintiff has failed to state a claim upon which

relief can granted. (ECF No. 18.) Discover argues that, “[e]ven when liberally construing this

pro se Plaintiff’s claims,” the Amended Complaint “is utterly devoid of even the most basic

factual allegations necessary to support her claims for relief.” (Id.) Discover further argues that

while “[i]t is entirely unclear what claim or claims Plaintiff is bringing against Discover,” to the

extent Plaintiff attempts to assert discrimination or harassment claims, she has failed to do so.

(Id.)

On March 16, 2023, Plaintiff filed a response in opposition to the subject Motion to

Dismiss. (ECF No. 27.) Plaintiff maintains that Discover “has fabricated a lie,” and then

discusses various facts related to the parties’ Ohio Civil Rights Commission charge submissions,

before concluding that she “clearly stated a valid reason” why the Court should deny the Motion

to Dismiss. (Id.)

On March 29, 2023, Discover filed a reply brief contending that Plaintiff “fail[ed] to

substantively respond to any of Discover’s arguments as to why her Amended Complaint must

be dismissed” and that “Plaintiff does not even attempt to clarify the numerous deficiencies in

her pleading.” (ECF No. 28.) Discover concludes that “Plaintiff does not make a single legal

argument or cite a single case that can salvage her claims from dismissal,” and argues that the

Court should dismiss Plaintiff’s case with prejudice. (Id.)

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II. STANDARD OF REVIEW

Defendant moves to dismiss the subject Complaint under Federal Rule of Civil Procedure

12(b)(6). (ECF No. 18.) To survive a motion to dismiss for failure to state a claim under Rule

12(b)(6), a plaintiff must satisfy the basic federal pleading requirements set forth in Rule 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). Thus, Rule 8(a) “imposes legal and

factual demands on the authors of complaints.” 16630 Southfield Ltd., P’ship v. Flagstar Bank,

F.S.B., 727 F.3d 502, 503 (6th Cir. 2013) (emphasis in original) (internal citations omitted).

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)). 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), “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). “The

plausibility of an inference depends on a host of considerations, including common sense and the

strength of competing explanations for the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504

(citations omitted).

In considering whether a complaint fails to state a claim upon which relief can be

granted, the Court must “construe the complaint in the light most favorable to the plaintiff,

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accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio

Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir.

2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet

that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of

a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663.

Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts

sufficient to “provide a plausible basis for the claims in the complaint”; a recitation of facts

intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz–Craft

Corp of Mich., Inc., 491 F. App’x. 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.

The Court holds pro se complaints “‘to less stringent standards than formal pleadings

drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir.

2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). While the standard for construing

pro se complaints is a liberal one, the complaint still must state a claim such that “‘courts should

not have to guess at the nature of the claim asserted.’” Frengler v. General Motors, 482 F. App’x

975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F. 2d 591, 594 (6th Cir. 1989)). A pro

se pleading must still “provide the opposing party with notice of the relief sought, and it is not

within the purview of the district court to conjure up claims never presented.” Id. at 977.

III. ANALYSIS

Against this background, the Court must agree that Plaintiff has failed to state a claim

upon which relief could be granted, even under the less stringent standards applied to Plaintiff’s

pro se pleadings. Generously construing all of Plaintiff’s filings together, the Court finds that

Plaintiff fails to set forth facts to establish claims under Title VII of the Civil Rights Act of 1964

for discrimination and/or a hostile work environment. (See generally ECF Nos. 1-1, 1-2, 8, 11.)

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As Discover correctly noted in the Motion to Dismiss, even taking all of Plaintiff’s allegations as

true, Plaintiff’s legal claims fail.

First, to establish a prima facie case for Title VII discrimination, Plaintiff must allege that

she was: (1) a member of a protected class; (2) subject to an adverse employment action; (3)

qualified for the position: and (4) replaced by a person outside the protected class or treated

differently than similarly situated employees. Tennial v. United Parcel Serv., Inc., 840 F.3d 292,

303 (6th Cir. 2016) (holding that a plaintiff must show that they were “(1) a member of a

protected class, (2) subject to an adverse employment action, (3) qualified for the position, and

(4) replaced by a person outside the protected class or treated differently than similarly situated

nonminority employees.”) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)).

Similarly, to establish a prima facie case for a hostile work environment, Plaintiff must

allege: (1) she was a member of a protected class; (2) she was subjected to unwelcomed

harassment; (3) the harassment was based on Plaintiff’s protected class; (4) the harassment

created a hostile work environment; and (5) employer liability. Huang v. Ohio State Univ., No.

2:19-CV-1976, 2022 WL 16715641, at *8 (S.D. Ohio Nov. 4, 2022) (“To establish a prima facie

hostile-work-environment claim under Title VII, Plaintiff must show: “‘(1) she was a member of

a protected class; (2) she was subjected to unwelcomed harassment; (3) the harassment was

based on sex[ ]; (4) the harassment created a hostile work environment; and (5) employer

liability.’”) (quoting Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 411 (6th Cir. 2021) (quoting

Ladd v. Grand Trunk Western R.R., 552 F.3d 495, 500 (6th Cir. 2009))).1

1 To the extent Plaintiff has set forth facts to assert any of kind(s) of claim, the Court cannot

discern what such claim(s) might be. Accordingly, the Court will limit its analysis to whether

Plaintiff has stated a viable claim for Title VII discrimination or hostile work environment. See

Frengler, 472 F.App’x at 976-77 (“[C]ourts should not have to guess at the nature of the claim

asserted.”).

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But Plaintiff has failed to make such allegations. First and foremost, Plaintiff has failed

to allege that she was a member of any protected class, a prerequisite for either of Plaintiff’s

purported claims. While Plaintiff alleges that Discover “has codes and clauses in place against

discrimination of any kind (i.e., racism, harassment, sexual orientation, etc.),” Plaintiff never

states the basis for the alleged discrimination or harassment in this case, let alone how Plaintiff

was a member of a protected class. (See ECF Nos. 1-1, 1-2, 8, 11.) If anything, Plaintiff appears

to allege that the alleged discrimination and harassment only started after a coworker accused

Plaintiff of being sexist towards women. (Id.) Needless to say, being accused of sexist conduct

does not place Plaintiff in a protected class. And because Plaintiff failed to specify the type of

alleged discrimination or harassment at issue, and failed to allege that they belonged to a

protected class, their Title VII claims must fail. Wittman v. Durham Sch. Servs./Nat'l Express

Corp., No. 20-1888, 2021 WL 4239645, at *2 (6th Cir. Apr. 21, 2021) (“In his Title VII claim—

i.e., that the defendants refused to replace a verbally abusive coworker who created a hostile

work environment—Wittman did not allege that he belonged to a protected class, and thus his

Title VII claim must fail.”).2

IV. CONCLUSION

For the reasons discussed, Defendant’s Motion to Dismiss Amended Complaint, ECF No.

18, is GRANTED, as Plaintiff has failed to state a claim against Defendant. This case is

2 While this conclusion ends the judicial inquiry, the Court also notes that Plaintiff has failed to

sufficiently allege any of the other elements of the purported discrimination claim. As to the

hostile work environment claim, Plaintiff has at most alleged that she was subjected to

unwelcomed harassment. But Plaintiff has likewise failed to allege any of the other elements of

the claim. Regardless, because both of these claims are predicated on Plaintiff’s membership in

a protected class, the Court need not expound upon these findings.

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therefore DISMISSED. The Clerk is DIRECTED to enter judgment in favor of Defendant

Discover Financial Services.

IT IS SO ORDERED.

Date: April 25, 2023 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

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