Flynn v. Memphis Pathology Laboratory (AEL)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

KATHERINE FLYNN,

Plaintiff, )

)

v. )

No. 2:19-2882-cv-SHL-tmp

)

MEMPHIS PATHOLOGY LABORATORY )

(AEL); SONIC HEALTHCARE USA (AEL); )

AMERICAN ESOTERIC LABORATORIES, )

Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING DISMISSAL

OF PLAINTIFF’S AMENDED COMPLAINT

Before the Court is Magistrate Judge Tu M. Pham’s Report and Recommendation (the

“Report”), dated February 5, 2020, in which Judge Pham recommends dismissing Flynn’s

Amended Complaint for failure to state a claim on which relief may be granted pursuant to 28

U.S.C. § 1915(e)(2)(B). (ECF No. 10.) Flynn filed an objection to the Report on February 19,

2020, asking for entry of default judgment and relief against Defendants. (ECF No. 11.)

For the following reasons, Flynn’s objections are OVERRULED, and the Report’s

recommendations are ADOPTED. Flynn’s Amended Complaint against Defendants Memphis

Pathology Laboratory (AEL), Sonic Healthcare USA (AEL), and American Esoteric

Laboratories is DISMISSED WITHOUT PREJUDICE. Flynn may still pursue remedies in

state court for her breach of contract and defamation allegations, but this Court lacks jurisdiction

over those claims.

BACKGROUND

Judge Pham summarized the procedural history of this case in his Report:

Flynn filed a pro se complaint with this Court alleging Title VII violations

by her former employer, Memphis Pathology Laboratory (AEL), on

December 23, 2019. (ECF No. 1.) The court granted her motion to proceed in

forma pauperis on January 7, 2020. (ECF No. 7.) In a separate order, the court

sua sponte authorized Flynn to file an amended complaint to cure certain

deficiencies as set forth in that order. (ECF No. 8.) Flynn filed her amended

complaint on February 3, 2020. (ECF No. 9.)

(ECF No. 10 at PageID 36–37.)

Both Flynn’s original complaint and the Amended Complaint were completed using a

form provided by the Clerk’s office to assist pro se Title VII claimants. (Id.; see also ECF Nos.

1, 9.) On those forms, Flynn classified her allegations by checking the boxes for termination of

employment and retaliation. (ECF No. 1 at PageID 3.) In her Amended Complaint, Flynn also

checked the box labelled “Other” and added the allegation of defamation. (ECF No. 9 at PageID

32.) Judge Pham summarized the facts as follows:

In the section of her complaint devoted to the facts of the case, Flynn wrote that

she “was assaulted by another employee on 6/6/2019” and was terminated less

than a week later. (Id. at 4.) According to Flynn, the instigator of the assault was

not discharged. (Id.)

(ECF No. 10 at PageID 37.)

Flynn alleged discriminatory termination of employment and retaliation on the basis of

her race and color. (ECF No. 9 at PageID 32–33.) Though the Title VII form asks the

complainant to state her race when alleging racial discrimination, she did not do so on the

Amended Complaint, and did not provide the race or color of her fellow employees or her

employer. (ECF No. 9.)

The Amended Complaint contains essentially the same factual allegations as the initial

complaint. (ECF No. 9 at Page ID 33; ECF No. 1 at Page ID 4.) However, the Amended

Complaint changed the named defendant to Sonic Healthcare USA (AEL). (ECF No. 9 at Page

ID 1.) Judge Pham recommended dismissing the Amended Complaint for failure to state a claim

in his Report and Recommendation dated February 5, 2020. (ECF No. 10 at PageID 42.)

Flynn objected to the Report on February 19, 2020, and requested a default judgment and

relief pursuant to Rule 55 of the Federal Rules of Civil Procedure.1 (ECF No. 11 at Page ID 43.)

Flynn’s objections, while not a pleading, provide more details about the altercation on June 6,

2019. (Id. at Page ID 44.) The objections also provide more context regarding Flynn’s

subsequent termination as an employee of American Esoteric Laboratories on June 10, 2019.

(Id. at Page ID 45.)

Flynn attached several exhibits to her objection. Some exhibits show communication

between Flynn and the Equal Employment Opportunity Commission. (ECF No. 11 at Page ID

55–56.) Other exhibits include the disposition of the Memphis Pathology Laboratory’s appeal of

Flynn’s unemployment insurance claim. (Id. at Page ID 57–62.) One exhibit, signed by

Sergeant C. Young of the Memphis Police Department, is an unofficial transcript of a

conversation between Sergeant Young and Flynn’s direct supervisor. (Id. at Page ID 53–54.)

None of the attached documents allege any discrimination based on race or color, and neither the

race nor the color of the allegedly preferred employee is mentioned. (Id.)

JURISDICTION

This Court has original jurisdiction to the extent that the termination, retaliation and

discrimination claims are alleged to arise out of the federal Civil Rights Act of 1964. See 28

U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United States.”). The Court may exercise

1 Default judgment is only proper where the opposing party has failed to plead or defend its claims. Fed. R. Civ. P.

55. Here, Defendants have not failed to plead or defend their claims because they have not yet been served with the

complaint. Instead, the Court here is acting pursuant to its duty to screen in forma pauperis complaints for failure to

state a claim. See 28 U.S.C. § 1915(e)(2)(B)(i–iii). Thus, because there has not yet been an opportunity for

Defendants to respond, default judgment is improper.

supplemental jurisdiction over the defamation claim, a claim based in state law, only if the

federal claims are not dismissed. See 28 U.S.C. § 1367(a) (“[I]n any civil action of which the

district courts have original jurisdiction, the district courts shall have supplemental jurisdiction

over all other claims that are so related to the claims in the action with such original jurisdiction

that they form part of the same case or controversy.”).

STANDARD OF REVIEW

Congress created the role of magistrate judges to assist with the burdens on federal courts

by empowering magistrate judges to take on certain duties of the district court. See United

States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858,

869–70 (1989)); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). A magistrate

judge may prepare for the district court a report and recommendation on various pretrial issues,

including dismissal for failure to state a claim. 28 U.S.C. § 636(b)(1)(B).

For reports and recommendations on dispositive motions, “[t]he district judge must

determine de novo any part of the magistrate judge’s disposition that has been properly objected

to.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b). After 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 those

aspects of the report and recommendation to which no specific objection is made. Thomas v.

Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district

court review of a magistrate's factual or legal conclusions, under a de novo or any other standard,

when neither party objects to those findings.”). When there is no proper objection filed, the

district court should review the report and recommendation only for clear error. Fed. R. Civ. P.

72 advisory committee’s note to 1983 addition.

Here, the Report and Recommendation submitted by Judge Pham came during the

screening phase of the case. The district court must screen in forma pauperis complaints and

dismiss any complaint, or any portion thereof, if the action: “(i) is frivolous or malicious; (ii)

fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i–iii). “To survive

scrutiny under . . . § 1915(e)(2)(B)(ii), a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” See Hill v. Lappin, 630

F.3d 468, 470–71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also

Fed. R. Civ. P. 12(b)(6).

“A claim is plausible on its face if the ‘plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'”

Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting

Iqbal, 556 U.S. at 678). The factual allegations must support the legal conclusions; mere legal

conclusions are not entitled to the assumption of truth. Iqbal, 556 U.S. at 679.

Pro se litigants are held to a less stringent standard of pleading than lawyers, and their

complaints are liberally construed. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). Even

so, a complaint filed pro se must adhere to the Federal Rules of Civil Procedure. See Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989). The court cannot create a claim that has not been

spelled out in a pleading. See Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011);

Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th Cir. 2003).

ANALYSIS

Plaintiff alleges that Defendants discriminated against her by terminating her

employment and retaliating against her based on her race and color when they addressed a

conflict she had with another employee. Title VII provides that it shall be “an unlawful

employment practice for an employer to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual's race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). Race discrimination is distinct from color

discrimination. See Cooper v. Jackson-Madison Cty. Gen. Hosp. Dist., 742 F. Supp. 2d 941,

950–51 (W.D. Tenn. 2010); see also Hood v. City of Memphis Pub. Works Div., No. 17-2869,

2018 WL 2387102, at *3–4 (W.D. Tenn. Jan. 8, 2018).

“The essential elements of a Title VII race discrimination claim are: (1) that the plaintiff

is a member of a protected group; (2) that he was subjected to an adverse employment action; (3)

that he was qualified for the position; and (4) that either similarly situated, non-protected

employees were treated more favorably or he was replaced by someone outside his protected

class.” Hood, 2018 WL 2387102, at *3 (citing Younis v. Pinnacle Airlines, Inc., 610 F.3d 359,

363 (6th Cir. 2010)). “[C]olor discrimination is distinct from race discrimination in that the

former ‘arises when the particular hue of the plaintiff's skin is the cause of the discrimination,

such as in the case where a dark-colored African-American individual is discriminated against in

favor of a light-colored African-American individual.’” Moore v. Food Lion, No. 3:06-0712,

2007 WL 596955, at *2 (M.D. Tenn. Feb. 21, 2007) (quoting Bryant v. Bell Atl. Md., Inc., 288

F.3d 124, 132 n.5 (4th Cir. 2002)).

It is axiomatic that, to state a claim of race discrimination under Title VII, the plaintiff

must plead facts which allow the court to infer that the employer’s wrongful termination related

to the plaintiff’s race. See Williams v. USW, AFL-CIO, Local 7697, No. 1:09–cv–743, 2010

WL 909883, at *5 (S.D. Ohio Mar. 10, 2010); see also Hood, 2018 WL 2387102, at *3 (“Hood

never alleges that the verbal abuse was related to his race, and ‘Title VII does not protect against

a generally abusive working environment.’”) (quoting Lauro v. Tomkats, Inc., 9 F. Supp. 2d 863,

871 (M.D. Tenn. 1998)). For a color discrimination claim under Title VII, the court must be able

to ascertain that the termination occurred because of the color of the plaintiff’s skin. See Cooper,

742 F. Supp. 2d at 951; see also Hood, 2018 WL 2387102, at *4 (“Hood's allegations are ‘devoid

of any hint that his particular skin tone motivated the alleged discrimination.’”) (quoting Bryant,

288 F.3d at 132 n.5).

Judge Pham found that “Flynn has not provided any facts from which the court could

infer that Flynn’s employer discriminated against her on the basis of race or color,” and this

Court finds the same. (ECF No. 10 at Page ID 40.) Flynn, in her Amended Complaint, alleges

that her employer treated a former fellow employee, Amber Howard, differently for the same

conduct. (ECF No. 1 at PageID 3.) However, Flynn does not provide the race or color of herself

or Amber Howard. (ECF No. 1 at PageID 3.) Thus, while there is a factual allegation that the

termination was wrongful, Flynn does not allege anyone’s race or color, necessary facts for

claims that the termination was the result of race or color discrimination. Flynn likewise does

not provide the missing link in her objection to the Report. (ECF No. 11 at Page ID 47–48.)

Though Flynn averred additional facts in her objection, the additional facts center around the

altercation preceding Flynn’s termination, with no allegations as to the color or race of Flynn or

Howard. (ECF No. 11 at Page ID 47–48.) Because there are no factual allegations to support

different treatment based on race or color, the Title VII termination claims are DISMISSED.

As for her retaliation claim, “[t]o state a claim of retaliation under Title VII, a plaintiff

must allege that: (1) he acted in a manner protected by Title VII; (2) the defendant knew of this

exercise of protected activity; (3) the defendant subsequently took an adverse action against him;

and (4) the adverse action had a causal connection to the protected activity.” Hood, 2018 WL

2387102, at *5 (citing Morris v. Oldham Cty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000)).

“[T]here are two types of ‘protected activity’ for purposes of a Title VII retaliation claim: (1)

‘oppos[ing] any practice made an unlawful employment practice’ by Title VII, and (2) making a

charge, testifying, assisting, or participating in an ‘investigation, proceeding, or hearing’ under

Title VII.” Id. (quoting 42 U.S.C. § 2000e-3(a)).

Flynn’s Amended Complaint provides no allegations from which the Court could infer

that her employer knew that Flynn engaged in protected activity. (ECF No. 9 at Page ID 33;

ECF No. 1 at Page ID 4.) In her objections, Flynn argues that she contacted the Equal

Employment Opportunity Commission on the same day that she was terminated. (ECF No. 11 at

Page ID 45.) Not only is this allegation not included in her Amended Complaint, she also does

not allege that her employer knew about the communication or that her termination was in

response to this protected activity. (ECF No. 11 at Page ID 45.) Indeed, it appears that the

protected activity occurred after the termination, such that the termination could not have been

retaliatory. (ECF No. 11 at PageID 55.) Flynn’s allegations are insufficient to support her claim

of retaliation based on Title VII protected activity, and the retaliation claim is thus DISMISSED.

See Barnett, 414 F. App’x at 786 (“To avoid dismissal, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.”) (internal

quotation marks omitted).

Flynn’s remaining allegations against her employer sound in state law rather than federal

law. Flynn asserted “defamation” as a claim in her Amended Complaint, and her objections

include various citations to the employee handbook, presumably as an argument that the

employer’s actions may have violated an employee-employer agreement. (ECF No. 9 at Page ID

32; ECF No. 11 at Page ID 47–48.) These state law claims for defamation and breach of

contract, unaccompanied by federal law claims, belong in state, not federal, court. See 28 U.S.C.

§ 1367(a). Flynn’s claims that sound in defamation and breach of contract are DISMISSED

WITHOUT PREJUDICE.

CONCLUSION

For the foregoing reasons, the Report is ADOPTED. Flynn’s Motion for Default

Judgment is DENIED, and Flynn’s Amended Complaint is DISMISSED WITHOUT

PREJUDICE.

IT IS SO ORDERED, this 29th of September, 2020.

s/ Sheryl H. Lipman

SHERYL H. LIPMAN

UNITED STATES DISTRICT JUDGE