Green v. CommuteAir

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CALEB A. GREEN,

Plaintiff,

v. Civil Action 2:24-cv-4103

Judge Algenon L. Marbley

Magistrate Judge Kimberly A. Jolson

COMMUTEAIR,

Defendant.

ORDER AND REPORT AND RECOMMENDATION

Plaintiff, Caleb Green, an Ohio resident proceeding pro se, brings this action against

Defendant CommuteAir. The matter is before the Undersigned for consideration of Plaintiff’s

Amended Motion for Leave to Proceed in forma pauperis (Doc. 3) under 28 U.S.C. §1915(e)(2).

Plaintiff’s Amended Motion (Doc. 3) is GRANTED, and his first Motion for Leave to Proceed in

forma pauperis (Doc. 1) is DENIED as moot. All judicial officers who render services in this

action shall do so as if the cost have been prepaid. 28 U.S.C. §1915(a). Having performed an

initial screen, the Undersigned RECOMMENDS that Plaintiff’s Complaint (Doc. 1-1) be

DISMISSED.

I. STANDARD

Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the complaint,

or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(2). In reviewing the Complaint, the Court must construe it in Plaintiff’s favor, accept

all well-pleaded factual allegations as true, and evaluate whether it contains “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“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.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Further, “pro se litigants are

not relieved of the duty to develop claims with an appropriate degree of specificity.” Kafele v.

Lerner, Sampson, Rothfuss, L.P.A., 161 F. App’x 487, 491 (6th Cir. 2005). The role of the Court

is not to “conjure allegations on a litigant’s behalf.” Martin v. Overton, 391 F.3d 710, 714 (6th

Cir. 2004) (internal quotation marks and citations omitted). So, the complaint must include more

than “labels and conclusions” and “formulaic recitation[s] of the elements of a cause of action[.]”

Kafele, 161 F. App’x at 491. In sum, although pro se complaints are to be construed liberally,

Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are still required. Wells

v. Brown, 891 F. 2d 591, 594 (6th Cir. 1989).

II. DISCUSSION

Plaintiff’s allegations arise out of his previous employment at Defendant CommuteAir. To

begin, Plaintiff says that he was “forced to resign” from his position on July 19, 2023, “because of

discrimination.” (Doc. 1-1 at 3). Plaintiff says his resignation stemmed from “false accusations”

made by his former manager. (Id.). He also alleges he “experienced multiple incidents of

discrimination” during his employment, such as watching his coworkers receive certain rewards

that he did not receive. (Id.). Further, Plaintiff says he was disciplined during a shift while others

were not. (Id.). And he says he did not receive shifts that he requested, while the shifts he did

work “did not correlate with operational needs.” (Id. (discussing that a certain shift was removed

after Plaintiff “bid” on it)). Finally, Plaintiff says that when he resigned, he asked for an

“investigation.” (Id.). A few weeks later, a human resources employee told Plaintiff “that he was

not racist and neither was [Defendant].” (Id.). Although Plaintiff specifies only “[d]iscrimination”

as the cause of action on his civil cover sheet, (Doc. 1-3), the Court construes his Complaint as

alleging a Title VII employment discrimination claim.

But that claim should be dismissed for two reasons. First, Plaintiff fails to meet the

pleading requirements of Federal Rule of Civil Procedure 8(a). See Fed. R. Civ. P. 8(a)(2) (stating

that complaints must contain “a short and plain statement . . . showing that the pleader is entitled

to relief.”). Title VII prohibits employers from discriminating “on the basis of race, color, religion,

sex, or national origin, in hiring, firing, salary structure, promotion and the like.” Univ. of Tex. Sw.

Med. Ctr. V. Nassar, 570 U.S. 338, 342 (2013) (citing 42 U.S.C. § 2000e–2(a)). To establish a

prima facie case of employment discrimination under that Title, Plaintiff must show that (1) he is

a member of a protected class; (2) he suffered an adverse employment action; (3) he was qualified

for his position; and (4) he was treated differently from similarly situated individuals outside of

his protected class. Smith v. City of Salem, 378 F.3d 566, 570 (6th Cir. 2004). At this stage,

Plaintiff does not need to plead every element. Keys v. Humana, 684 F.3d 605, 609 (6th Cir. 2012).

However, he must allege enough facts for the Court to reasonably infer that Defendant

discriminated against him because of a protected characteristic. Id.

But critically, in his Complaint, Plaintiff does not identify a protected class to which he

belongs. (Doc. 1-1 at 3). Instead, he provides only vague accusations and conclusions. Lee v. U.S.

Postal Serv., 12 F. App’x 322, 323 (6th Cir. 2001) (“Mere conclusory allegations of discrimination

are insufficient to state a claim under Title VII.”). Plaintiff suggests Defendant is “racist,” but he

provides no further details on what actions constituted racial discrimination. (Id.). Nor does

Plaintiff identify his race or the race of his coworkers who allegedly received preferential treatment.

(Id.). Without more, the Court cannot reasonably infer that Plaintiff belongs to a protected class,

let alone that Defendants discriminated against him because of a protected characteristic. See, e.g.,

Edoho-Eket v. Northwestern Univ., No. 3:18-cv-1022, 2018 WL 5313148, at *2–3 (M.D. Tenn.

Oct. 25, 2018) (recommending a Title VII employment discrimination claim be dismissed where

the plaintiff did not identify her race but simply said she was a member of a protected class); Wiltz

v. Moundbuilders Guidance Ctr., No. 2:13-cv-523, 2013 WL 4081078, at *4 (S.D. Ohio Aug. 13,

2013) (finding a plaintiff did not plead enough for a race discrimination claim where she said only

that her mistreatment “was due to her race”), report and recommendation adopted, No. 2:13-cv-

523, 2013 WL 5178732 (S.D. Ohio Sept. 13, 2013); Arredondo v. Brushwellman, Inc., 202 F.3d

267 (Table), 1999 WL 1253077, at *1 (6th Cir. Dec. 17, 1999) (affirming the dismissal of an

employment discrimination claim where the plaintiff did not identify her protected class other than

using the title “Ms.”).

Even if Plaintiff alleged more, his claim is barred by the statute of limitations. “Although

the statute of limitations is normally an affirmative defense that must be raised by the defendant

in an answer, if the limitations bar appears on the face of the complaint, the Court may apply it

during an initial screen.” Wiltz, 2013 WL 4081078, at *4 (dismissing a race discrimination claim

on an initial screen due to the statute of limitations). Because this action is based on events that

occurred in Ohio, Plaintiff had 300 days from Defendant’s alleged discriminatory act to file suit.

Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001) (noting plaintiffs usually have 180 days

to file an EEOC charge or, in deferral states like Ohio, 300 days from the discriminatory act to

bring a Title VII claim). Because Plaintiff says he was forced to resign on July 19, 2023, he had

to file suit by May 14, 2024. Id.; (Doc. 1-1 at 3). That deadline has long since passed, and

Plaintiff’s claim is now time-barred. As a result, his Complaint should be dismissed.

III. CONCLUSION

Plaintiff’s Amended Motion for Leave to Proceed in forma pauperis (Doc. 3) is

GRANTED, and his first Motion to proceed in forma pauperis (Doc. 1) is DENIED as moot.

Based upon the foregoing, though, it is RECOMMENDED that Plaintiff’s Complaint (Doc. 1-1)

be DISMISSED.

IT IS SO ORDERED.

Date: November 8, 2024 /s/Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

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).