Hamilton v. Shelby County, Tennessee

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

TIMIKO HAMILTON, )

)

Plaintiff, )

)

v. ) No. 20-cv-2911-TMP

)

SHELBY COUNTY, TENNESSEE, )

)

Defendant. )

)

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

Before the court is defendant Shelby County’s Motion to

Dismiss, filed on February 11, 2021.1 (ECF No. 12.) Plaintiff

Timiko Hamilton responded to the motion on April 1, 2021. (ECF No.

18.) Shelby County filed a reply on April 7, 2021. (ECF No. 19.)

For the reasons below, Shelby County’s motion is GRANTED.

I. BACKGROUND

Plaintiff Timiko Hamilton began working for the Shelby County

Division of Corrections (“SCDOC”) on August 16, 2012, as a

corrections officer and was promoted to sergeant on February 1,

2017. (ECF No. 1 at 2.) According to Hamilton, she has met or

exceeded expectations throughout her career with SCDOC. (ECF No.

1On February 21, 2021, the parties consented to have a United

States magistrate judge conduct all proceedings in this case

including trial, the entry of final judgment, and all post-trial

proceedings. (ECF No. 10.)

1 at 2.) Hamilton alleges she has been treated for severe anxiety

and major depressive disorder, which “substantially limits, among

other thing, the major life activities of working, eating,

sleeping, and interacting with others.” (ECF No. 1 at 2.) As a

result, Hamilton requested that she be assigned to positions and

responsibilities that minimized her contact with inmates. (ECF No.

1 at 2.) Since October 18, 2017, Hamilton has been involved in a

Chapter 13 bankruptcy proceeding in the United States Bankruptcy

Court for the Western District of Tennessee. (ECF No. 12-4 at 1.)

According to the complaint, Hamilton filed her first internal

complaint of discrimination on July 14, 2017. (ECF No. 1 at 2.)

Subsequently, she filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) in February of 2018.

(ECF No. 1 at 2.) A little over a year later, Hamilton was assigned

to work in the “Papa” Building, where a group of inmates threatened

to harm her. (ECF No. 1 at 2.) Hamilton alleges that she reported

the threats to her supervisors but was ignored. (ECF No. 1 at 2.)

Then, in April of 2019, the same inmates who had threatened her

poured baby oil over a path that Hamilton routinely walked across.

(ECF No. 1 at 3.) Hamilton slipped on the oil and was severely

injured. (ECF No. 1 at 3.) According to Hamilton, her doctor

restricted her to only sedentary activities with occasional

walking or standing. (ECF No. 1 at 3.) As before, her requests for

accommodations while she recovered from her injuries were ignored.

(ECF No. 1 at 3.) Additionally, Hamilton alleges she has suffered

from Post-traumatic Stress Disorder since the incident. (ECF No.

1 at 3.)

Following the incident, Hamilton states she repeatedly

requested that SCDOC investigate the circumstances that led to her

injuries, but the investigation was delayed. (ECF No. 1 at 3.)

When it eventually was conducted, the investigation was allegedly

not thorough and thus did not substantiate the assault by the

inmates. (ECF No. 1 at 3.) Throughout the investigation (and

afterwards), Hamilton remained assigned to work in the “Papa”

Building. (ECF No. 1 at 3.) Since the incident, Hamilton alleges

SCDOC has not made any attempt to protect her from the inmates

and, as a result, she continues to suffer from workplace violence

and harassment. (ECF No. 1 at 3.) Hamilton states she is an

“otherwise qualified individual with a disability as defined by

the ADAAA” and “other similarly-situated individuals who have not

complained about discrimination or are not disabled have been

afforded all the benefits to which they are entitled without

interference by the Defendant.” (ECF No. 1 at 2-3.)

Hamilton filed her first lawsuit with this court on October

15, 2019. (ECF No. 1 at 4.) Her first lawsuit raised many of the

same allegations as the instant complaint, such as the baby oil

slip and fall incident and that her requests for accommodations

for her anxiety and depression were denied. (ECF No. 12-2.) Her

first complaint included a claim for disability discrimination in

violation of the Americans with Disabilities Act (“ADA”),

specifically alleging that Shelby County failed to accommodate her

disability, subjected her to disparate treatment, and retaliated

against her because of her disability.2 (ECF No. 12-2.) However,

on June 4, 2020, Magistrate Judge Charmiane G. Claxton granted a

motion for summary judgment filed by Shelby County, holding that

Hamilton was judicially estopped from bringing any of her claims

because she had represented to the United States Bankruptcy Court

for the Western District of Tennessee that she did not have any

potential causes of action that could be considered an asset of

her bankruptcy estate. (ECF No. 12-3.)

According to the instant complaint, Hamilton continues to be

“subjected to a hostile work environment by co-workers and

supervisors, including being subjected to ridicule and derision by

co-workers and supervisors.” (ECF No. 1 at 4.) She alleges that

her complaints regarding her treatment by inmates continue to be

ignored. (ECF No. 1 at 4.) Hamilton filed a charge of

discrimination with the EEOC on January 3, 2020. (ECF No. 1 at 4.)

The charge reads:

I began working for [SCDOC] on August 16, 2012.

2Hamilton’s first lawsuit also contained additional allegations

related to charges under Title VII of the Civil Rights Act and the

Family and Medical Leave Act. (ECF No. 12-2.)

On February 23, 2018, I filed a charge of employment

discrimination with the EEOC (490-2018-01377). My

employer has been aware of my disability since 2017.

Since filing my previous charge, my request[s] for

reasonable accommodations have been denied. Prior to

filing my EEOC charge, I had no prior issues receiving

a reasonable accommodation.

I believe I have been discriminated against because of

my disability and retaliated against for engaging in a

protected activity in violation of the [ADA].

(ECF No. 1-1.) She received a right-to-sue letter from the EEOC on

September 23, 2020, and filed this lawsuit on December 18, 2020.

(ECF Nos. 1 at 1; 1-2.) Her instant lawsuit is predicated on

alleged disability discrimination in violation of the ADA, namely

disparate treatment, failure to accommodate, and retaliation. (ECF

No. 1 at 5.) Hamilton’s Chapter 13 bankruptcy proceeding remains

pending, with the instant lawsuit being listed as an asset on an

Amended Schedule entered on December 18, 2020. (ECF Nos. 12-1 at

11-12; 12-4; 12-5 at 6.) On March 26, 2021, Hamilton filed a motion

with the bankruptcy court for leave to hire an attorney to

prosecute a non-bankruptcy civil cause of action. (ECF No. 18-1 at

1-2.) The bankruptcy court granted the motion on April 26, 2021.

See In re Timiko Rochelle Hamilton, 2:17-BK-29176 (Bankr. W.D.

Tenn. Apr. 26, 2021) (Dkt. No. 75).

II. ANALYSIS

A. Standard of Review

In deciding a Rule 12(b)(6) motion to dismiss, the court views

the allegations in the light most favorable to the plaintiff and

accepts all well-pleaded factual allegations as true. Ashcroft v.

Iqbal, 556 U.S. 662, 678–79 (2009). Federal Rule of Civil Procedure

8(a)(2) requires only “a short and plain statement of the claim.”

Fed. R. Civ. P. 8(a)(2). However, “[t]he factual allegations in

the complaint need to be sufficient to give notice to the defendant

as to what claims are alleged, and the plaintiff must plead

‘sufficient factual matter’ to render the legal claim plausible,

i.e., more than merely possible.” Fritz v. Charter Twp. of

Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Iqbal, 556

U.S. at 677). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Iqbal, 556

U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557

(2007)). To satisfy this requirement, plaintiffs must plead more

than “labels and conclusions,” “a formulaic recitation of the

elements of a cause of action,” or “naked assertions devoid of

further factual enhancement.” Id. (alteration omitted) (quoting

Twombly, 550 U.S. at 555, 557). “A claim has facial plausibility

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.

“As a general rule, when considering a 12(b)(6) motion to

dismiss, matters outside the pleadings may not be considered by

the court.” Metz v. Unizan Bank, No. 5:05-CV-1510, 2007 WL 3232431,

at *1 (N.D. Ohio Oct. 31, 2007) (citing Sims v. Mercy Hosp. of

Monroe, 451 F.2d 171, 173 (6th Cir. 1971)). If matters outside the

pleadings are considered by the court, the motion must be

“converted to a motion for summary judgment under Fed. R. Civ. P.

56.” Id. at *1 (citing Carter v. Stanton, 405 U.S. 669, 671

(1972)). Despite this general rule, “a court may consider a

document outside the pleadings if the pleadings refer to it,” id.

at *1 (citing Jackson v. City of Columbus, 194 F.3d 737, 745 (6th

Cir. 1999)), or “materials that are integral to the complaint, are

public records, or are otherwise appropriate for taking judicial

notice.” Ashland, Inc. v. Oppenheimer & Co., Ins., 648 F.3d 461,

467 (6th Cir. 2011) (quoting Ley v. Visteon Corp., 543 F.3d 801,

805 (6th Cir. 2008)). Further, “a court may take judicial notice

of other court proceedings without converting the motion into one

for summary judgment.” Buck v. Thomas M. Cooley Law School, 597

F.3d 812, 816 (6th Cir. 2010) (citing Winget v. JP Morgan Chase

Bank, N.A., 537 F.3d 565, 576 (6th Cir. 2008)). Here, Shelby

County’s motion included filings from Hamilton’s bankruptcy

proceeding and from her first lawsuit with this court. See (ECF

Nos. 12-2; 12-3; 12-4; 12-5; 12-6.) The court need not convert

this motion to one for summary judgment in order to consider these

documents. See Hamlin v. Baptist Mem'l. Hosp., No. 2:09–cv–02615–

STA–cgc, 2011 WL 902351, at *2 n.1 (W.D. Tenn. Jan. 27, 2011)

(“Although the parties have attached filings from Plaintiff's

bankruptcy proceeding as exhibits for consideration in this

Motion, the Court may take judicial notice of these documents and

consider them without converting Defendant's Motion into a motion

for summary judgment pursuant to Rule 12(d) of the Federal Rules

of Civil Procedure.”).

B. Standing

As a preliminary matter, Shelby County argues that Hamilton’s

complaint must be dismissed because she had not received permission

from the bankruptcy court to pursue this lawsuit in her own name.

In its reply, Shelby County “acknowledge[d] the state of affairs

in the bankruptcy court could change based on Plaintiff’s pending

motion with the bankruptcy court to appoint counsel.” (ECF No. 19

at 3.) While earlier in this litigation Hamilton did not have

permission to pursue this lawsuit in her own name, the bankruptcy

court has since granted Hamilton’s motion to hire an attorney to

pursue this cause of action.3 In re Timiko Rochelle Hamilton, 2:17-

BK-29176 (Bankr. W.D. Tenn. Apr. 26, 2021) (Dkt. No. 75). As a

result, the Sixth Circuit’s general rule that Chapter 13 debtors

do not have standing to pursue independent claims no longer

precludes Hamilton from bringing this lawsuit. See generally

3Federal courts can “take judicial notice of developments in

‘related proceedings in other courts of record.’” Chase Bank USA,

N.A. v. City of Cleveland, 695 F.3d 548, 553 n.2 (6th Cir. 2012)

(quoting Walburn v. Lockheed Martin Corp., 431 F.3d 966, 972 n.5

(6th Cir. 2005)).

Rugiero v. Nationstar Mortg., LLC, 580 F. App’x 376 (6th Cir.

2014).

C. Failure to State a Claim

1. Res Judicata

Before the court can consider the merits of Shelby County’s

motion, the undersigned must first consider whether any or all of

Hamilton’s claims are barred by res judicata because of the earlier

lawsuit that was dismissed by this court. Res judicata deals with

“the preclusive effect of a judgment.” Taylor v. Sturgell, 553

U.S. 880, 892 (2008). In practice, res judicata bars subsequent

claims by parties or their privies based on the same cause of

action. Trent v. Shelby Cty. Gov't, No. 2:08–cv–2797–JPM–cgc, 2009

WL 6066974, at *1 (W.D. Tenn. Jul. 30, 2009) (citing Montana v.

United States, 440 U.S. 147, 153 (1979)). The moving party must

establish four elements for res judicata to apply: “1) a final

decision on the merits by a court of competent jurisdiction; 2) a

subsequent action between the same parties or their privies; 3) an

issue in a subsequent action which was litigated or which should

have been litigated in the prior action; and 4) an identity of the

causes of action.” Id. (citing Rivers v. Bariton Bd. of Educ., 143

F.3d 1029, 1031 (6th Cir. 1998) and Kane v. Magna Mixer Co., 71

F.3d 555, 560 (6th Cir. 1995)).

Hamilton filed a lawsuit against Shelby County in this court

on October 15, 2019. This court granted Shelby County’s motion for

summary judgment in the earlier case on June 4, 2020. See Brown v.

Burch, Porter & Johnson Law Firm, No. 15–2167, 2015 WL 5737802, at

*7 (W.D. Tenn. Sept. 30, 2015) (“The disposition of [an earlier

lawsuit] by summary judgment qualifies as a final judgment on the

merits.”) (citing Nat'l Satellite Sports, Inc. v. Eliadis, Inc.,

253 F.3d 900, 908 (6th Cir. 2001)). Therefore, the first two

elements of the res judicata analysis are satisfied, a finding

that is not disputed by Hamilton. Moreover, Hamilton concedes that

“any claims that Plaintiff brought or could have brought in her

2019 Complaint are barred by the doctrine of res judicata.” (ECF

No. 18-1 at 7.); see also U.S. ex rel. Sheldon v. Kettering Health

Network, 816 F.3d 399, 415 (6th Cir. 2016) (“As the ‘could have’

phrasing implies, [the third] element concerns only the legal

possibility of bringing the disputed claims in the previous

action.”); Bridgeman v. City of Bedford Heights, No. 1:19-cv-3002,

2020 WL 1930116, a *3 (N.D. Ohio Apr. 21, 2020) (dismissing on res

judicata grounds a plaintiff’s claims that were available when the

initial lawsuit was filed because “the term ‘same cause of action’

encompasses claims that ‘were previously available to the parties,

regardless of whether they were asserted or determined in the first

proceeding’”) (quoting Thomas v. Miller, 329 F. App’x 623, 627

(6th Cir. 2009)). However, Hamilton argues that the last two

elements of res judicata are not met for claims arising after the

first complaint was filed, because “the claims in the instant

action were not available to her until at least September 2020,

when she received the right-to-sue.” (ECF No. 18-1 at 7.); see

Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 529 (6th Cir.

2006) (finding that it was error for a district court to dismiss

a claim on res judicata grounds “because [the] alleged actions had

not yet occurred at the time [plaintiff] filed the first . . .

suit” and “[s]imply put, [plaintiff] could not have asserted a

claim that [plaintiff] did not have at the time”) (quoting Kane, 71

F.3d at 560).

Hamilton’s complaint includes an allegation that “[a]fter

making requests for accommodation and the filing of her previous

action against Defendant, Plaintiff has been subjected to

discriminatory and retaliatory treatment including, but not

limited to, subjected to unreasonable scrutiny, investigations,

and discipline,” and that she has been continuously subjected to

a hostile work environment. (ECF No. 1 at 4 (emphasis added).)

Clearly, Hamilton could not have included in the first complaint

any allegations that Shelby County discriminated against her after

the first lawsuit was filed. See Cont’l Cas. Co. v. Indian Head

Indus., Inc., 941 F.3d 828, 837 (6th Cir. 2019) (holding that “a

party has no duty to supplement its complaint” and thus “if a

plaintiff sues a defendant, and then after the filing of the first

complaint the defendant engages in additional, similar wrongdoing,

that plaintiff will not be barred from bringing another, later

lawsuit against the same defendant for the post-filing

wrongdoing”); Rawe, 462 F.3d at 529-30 (reasoning that “res

judicata does not apply to claims that were not ripe at the time

of the first suit” and to hold otherwise would “prospectively

immunize the defendant from liability for future actionable

conduct”) (citing Katt v. Dykhouse, 983 F.2d 690, 694 (6th Cir.

1992)). This is true even if certain facts that form the basis of

the second lawsuit were alleged in the first lawsuit. See Ziba v.

Kcira, No. 10–12654, 2010 WL 4636635, at *5 (E.D. Mich. Nov. 8,

2010) (“The ‘fact that both suits involve essentially the same

course of alleged wrongful conduct is not decisive. Such a course

of conduct — for example, an abatable nuisance — may frequently

give rise to more than a single cause of action.’”) (quoting Cream

Top Creamery v. Dean Milk Co., 383 F.2d 358, 363 (6th Cir. 1967)).

Thus, the court finds that, to the extent Hamilton is seeking to

assert ADA claims based on alleged violations that occurred before

the first complaint was filed, those claims are precluded by res

judicata and are subject to dismissal on that basis. On the other

hand, the court finds that the doctrine of res judicata does not

apply to Hamilton’s claims that are based on conduct by Shelby

County that occurred after the first complaint was filed.

2. Allegations Since the First Complaint

Having limited Hamilton’s claims to those arising after the

first complaint was filed, the court now turns to the merits of

Hamilton’s ADA claim. Though listed as a single cause of action,

Hamilton’s complaint raises three distinct theories of

discrimination under the ADA: disparate treatment, failure to

accommodate, and retaliation. (ECF No. 1 at 5.) In general, the

ADA prohibits discrimination “against a qualified individual on

the basis of disability in regard to job application procedures,

the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a). Since the prima

facie elements for employment discrimination are evidentiary

standards and not pleading requirements, a plaintiff need not make

a prima facie showing to survive a motion to dismiss. Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 510–12 (2002). However, the complaint

must nonetheless “contain either direct or inferential allegations

respecting all the material elements to sustain a recovery under

some viable legal theory. . . . [C]onclusory allegations or legal

conclusions masquerading as factual conclusions will not suffice

to prevent a motion to dismiss.” Mezibov v. Allen, 411 F.3d 712,

716 (6th Cir. 2005) (citations omitted); see also James v. Hampton,

592 F. App'x 449, 460–61 (6th Cir. 2015). Accordingly, when

determining the sufficiency of a pleading at the motion to dismiss

stage, courts still look to prima facie showing requirements for

guidance. See S. Pointe Wholesale, Inc. v. Vilardi, No. 1:17-CV-

00052-GNS, 2018 WL 922379, at *2–3 (W.D. Ky. Jan. 23, 2018); United

States v. Trumbull Metro. Hous. Auth., No. 4:17-CV-101, 2017 WL

4882438, at *4–5 (N.D. Ohio Oct. 30, 2017); Johnson v. Oldham, No.

16-2587-SHL-DKV, 2016 WL 7805793, at *2–3 (W.D. Tenn. Dec. 27,

2016), report and recommendation adopted, No. 16-CV-2587-SHL-DKV,

2017 WL 187561 (W.D. Tenn. Jan. 17, 2017).

a. Failure to Accommodate

The prima facie elements for a failure to accommodate claim

under the ADA are: “(1) [plaintiff] was disabled within the meaning

of the ADA, (2) [plaintiff] was otherwise qualified for [the]

position, with or without reasonable accommodation; (3) the

defendant knew or had reason to know about [plaintiff’s]

disability; (4) [plaintiff] requested an accommodation; and (5)

the defendant failed to provide the necessary accommodation.”

Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Sch., 974 F.3d.

652, 669 (6th Cir. 2020) (citing Brumley v. United Parcel Serv.,

Inc., 909 F.3d 834, 839 (6th Cir. 2018)).

Regarding Hamilton’s failure to accommodate claim, her

complaint sets out only conclusory, “the-defendant-unlawfully-

harmed-me” allegations. Iqbal, 556 U.S. at 678. Even assuming that

Hamilton’s complaint plausibly establishes that she is disabled

within the meaning of the ADA and that she is qualified for her

job with SCDOC, the complaint does not allege any specific facts

occurring after the allegations in the first lawsuit, beyond simply

reciting the elements of the claim. See id., 556 U.S. a 678 (“A

pleading that offers ‘labels and conclusions’ or “‘a formulaic

recitation of the elements of a cause of action will not do.’”)

(quoting Twombly, 550 U.S. at 555). Indeed, the only allegations

contained in the complaint (occurring after the first complaint

was filed) are that:

Defendant has taken no steps to protect Plaintiff from

attacks by inmates . . . . Plaintiff has continued to

suffer from acts of workplace violence and harassment,

of which Defendant is aware and which Defendant allows

to take place.

. . .

After making requests for accommodation and the filing

of her previous action against Defendant, Plaintiff has

been subjected to discriminatory and retaliatory

treatment including, but not limited to, subjected to

unreasonable scrutiny, investigations, and discipline.

Plaintiff has been subjected to a hostile work

environment by co-workers and supervisors, including

being subjected to ridicule and derision by co-workers

and supervisors. Her complaints about this treatment

have been ignored.

(ECF No. 1 at 2-3.) Her charge of discrimination with the EEOC

provides no more details, as it states only that “My employer has

been aware of my disability since 2017. Since filing the previous

charge, my request for reasonable accommodations have been denied.

Prior to filing my EEOC charge, I had no prior issues receiving a

reasonable accommodation.” (ECF No. 1-1.) Hamilton does not

provide any facts whatsoever regarding when she requested any

accommodations, what the requested accommodations were, or provide

any context for how Shelby County failed to accommodate these

requests.4 Merely stating accommodations were requested and that

those requests were ignored is insufficient to survive a motion to

dismiss. See Eachus v. Haslam, No. 3:15-cv-944, 2016 WL 323675, at

*8 (M.D. Tenn. Jan. 27, 2016) (granting a motion to dismiss

regarding an ADA failure to accommodate claim because the complaint

did “not contain any factual allegations describing or identifying

any accommodation that [plaintiff] needed in order to be able to

perform her duties, the reasonableness of that accommodation, any

request she made for that accommodation, or any denial by the

defendants of her request”).

b. Disparate Treatment

The prima facie elements for an ADA disparate treatment claim

are: “1) [plaintiff] was disabled; 2) [plaintiff] was otherwise

qualified for the job, with or without reasonable accommodation;

3) [plaintiff] suffered an adverse employment decision; 4)

[plaintiff’s] employer knew or had reason to know of [plaintiff’s]

disability; and 5) similarly situated employees were treated more

favorably.” O'Donnell v. Univ. Hosps. Cleveland Med. Ctr., 833 F.

App’x 605, 619 (6th Cir. 2020) (citing Rosebrough v. Buckeye Valley

4According to the complaint, Hamilton “requested to be assigned to

positions with minimal contact with inmates, such as in control

units” and that “[d]espite making repeated requests for

accommodation, Defendant has failed to accommodate Plaintiff’s

disabilities.” (ECF No. 1 at 2.) These requests appear to be the

same allegations that were included in the first complaint. (ECF

No. 12-2 at 4, 8.)

High School, 582 F. App'x 647, 651 (6th Cir. 2014)). As before,

Hamilton’s complaint does not plead sufficient facts to overcome

a motion to dismiss on this claim. Although the court must take

all facts in the light most favorable to Hamilton, the complaint

at most plausibly alleges that Hamilton is disabled, that she is

qualified for the position, and that Shelby County was aware of

her disability. To the extent Hamilton’s complaint alludes to the

remaining two elements (that she suffered an adverse employment

decision and that a similarly-situated employee was treated more

favorably), the complaint does little more than recite the bare

elements of a prima facie claim for disparate treatment under the

ADA. See Iqbal, 556 U.S. at 687 (“[Federal] Rule [of Civil

Procedure] 8 does not empower respondent to plead

the bare elements of his cause of action . . . and expect his

complaint to survive a motion to dismiss.”).

Turning first to Hamilton’s alleged adverse employment

decision, the Sixth Circuit defines an adverse employment action

as “a “materially adverse change in the terms or conditions of .

. . employment because of [the] employer's conduct.’” Stewart v.

Esper, 815 F. App’x 8, 16 (6th Cir. 2020) (quoting Mitchell v.

Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004)). The hallmark

of an adverse employment decision is a “significant change in

employment status,” such as “hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Id. at 16-17

(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761,

(1998)). However, a de minimis employment action or a

“[r]eassignment[] without changes in salary, benefits, title, or

work hours” is not an adverse employment action.” Id. at 16

(quoting Policastro v. Nw. Airlines, Inc., 297 F.3d 535, 539 (6th

Cir. 2002) and citing Bowman v. Shawnee State Univ., 220 F.3d 456,

462 (6th Cir. 2000)). In the instant case, the complaint states

only that “Plaintiff has been subjected to discriminatory and

retaliatory treatment including, but not limited to, subjected to

unreasonable scrutiny, investigations, and discipline” and that

she has been “subjected to ridicule and derision by co-workers and

supervisors.” (ECF No. 1 at 4.) Not only do these allegations fail

to allege any significant change in Hamilton’s employment status,

but they also do not provide any details as to when or how she was

investigated or disciplined, or that her employment status changed

in any meaningful way. See O’Donnell, 833 F. App’x at 619-20

(“These allegations are simply the type of complaints that arise

in a difficult professional environment. None of them amounted to

any sort of change in pay or benefits, nor in title, nor

constituted any type of demotion.”). Moreover, being ridiculed and

derided is not an adverse employment action. See Stewart, 815 F.

App’x at 19 (holding that “spreading rumors” and “offensive

comments” are not adverse employment actions because they “fall[]

into the category of ‘petty slights or minor annoyances that often

take place at work’ but that are not materially adverse”)

(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

68 (2006)). This is insufficient to plausibly allege an adverse

employment action.

Likewise, Hamilton’s complaint does not adequately identify

any similarly-situated employees who were treated more favorably.

“To be considered ‘similarly situated, the individuals with whom

[plaintiff] seeks to compare his/her treatment must have dealt

with the same supervisor, have been subject to the same standards,

and engaged in the same conduct without such differentiating or

mitigating circumstances that would distinguish their conduct or

the employer's treatment of them for it.’” Jones v. Potter, 488

F.3d 397, 405 (6th Cir. 2007) (quoting Gray v. Toshiba Am. Consumer

Prods., 263 F.3d 595, 599 (6th Cir. 2001)); see also Smith v.

Wrigley Mfg. Co., 749 F. App’x 446, 448 (6th Cir. 2018) (holding

that, in the Title VII context, a plaintiff must provide “specifics

regarding the other employees or their differing treatment” such

as “names, ages, or qualifications for the [similar] employees who

were treated differently, or any examples of how their treatment

differed” in order to survive a motion to dismiss). The only

mention of any other employees in the complaint is that “[u]pon

information and belief, other similarly-situated individuals who

have not complained about discrimination or are not disabled have

been afforded all the benefits to which they are entitled without

interference by the Defendant.” (ECF No. 1 at 3.) Because

Hamilton’s complaint merely alleges that she believes a similarly-

situated individual may exist, it fails to plausibly allege the

final element of an ADA disparate treatment claim and must be

dismissed.

c. Retaliation

The prima facie elements for an ADA retaliation claim are

“(1) [plaintiff] engaged in activity protected under the ADA; (2)

the employer knew of that activity; (3) the employer took an

adverse action against plaintiff; and (4) there was a causal

connection between the protected activity and the adverse action.”

Morrissey v. Laurel Health Care Co., 946 F.3d 292, 304 (6th Cir.

2019) (quoting Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th

Cir. 2014)). In the retaliation context, an adverse employment

action is one that “well might have ‘dissuaded a reasonable worker

from making or supporting a charge of discrimination.’” Burlington

N., 548 U.S. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211,

1219 (D.C. Cir. 2006)). Regarding this claim, it cannot be disputed

that Hamilton engaged in activity protected by the ADA (for

instance, filing the first lawsuit) and that Shelby County was

aware of the protected activity. However, Hamilton’s complaint

does not sufficiently plead a materially adverse action that would

have dissuaded a reasonable person from making or supporting a

charge of discrimination. Shaw v. Donahoe, 605 F. App’x 494, 496-

500 (6th Cir. 2015) (granting summary judgment and dismissing an

ADA retaliation claim in part because several of her alleged

adverse employment actions were insufficient to “dissuade[] a

reasonable worker from making or supporting a charge of

discrimination”) (quoting Burlington N., 548 U.S. at 69 and citing

Laster v. City of Kalamazoo, 746 F.3d 714, 719 (6th Cir. 2014)).

Indeed, the only allegations in the complaint to support her

retaliation claim are that Hamilton was “subjected to unreasonable

scrutiny, investigations, and discipline” and that she has been

“subjected to ridicule and derision by co-workers and

supervisors,” all of which are conclusory in nature. (ECF No. 1 at

4.); see Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d

365, 375 (6th Cir. 2011) (holding that conclusory allegations are

“not well-pleaded” and are not entitled to a presumption of truth)

(citing Iqbal, 556 U.S. at 681). Because Hamilton’s complaint does

not sufficiently plead an adverse action, her claim for retaliation

cannot survive a motion to dismiss. See HDC, LLC v. City of Ann

Arbor, 675 F.3d 608, 613 (6th Cir. 2012) (“[B]road and conclusory

allegations of discrimination cannot be the basis of a complaint

and a plaintiff must state allegations that plausibly give rise to

the inference that a defendant acted as the plaintiff claims.”).

III. CONCLUSION

For the reasons above, the court GRANTS Shelby County’s

motion. Hamilton’s complaint is hereby dismissed.5

IT IS SO ORDERED.

/s/ Tu M. Pham__________________________

TU M. PHAM

Chief United States Magistrate Judge

May 4, 2021_____________________________

Date

5Pleading deficiencies like those in Hamilton's complaint may be

remedied by amending the complaint under Federal Rule of Civil

Procedure 15. However, Hamilton has not requested leave to amend

her complaint in her response to the motion to dismiss. The court

is under no obligation to sua sponte grant a represented plaintiff

leave to amend deficiencies in a complaint. See Brown v. Matauszak,

415 F. App’x 608, 615–16 (6th Cir. 2011) (“[A] district court's

failure to grant leave to amend a complaint generally is governed

by an abuse of discretion standard. There is currently no rule of

law in this circuit that requires a district court, sua sponte, to

give a . . . plaintiff leave to amend [her] complaint absent a

request, and so generally, a district court does not abuse its

discretion in failing to grant a party leave to amend where such

leave is not sought.”) (internal citations omitted).