Spencer v. Hilton Corporate Office

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KEMECUS SPENCER,

Plaintiff,

Case No. 2:24-cv-3852

Chief Judge Sarah D. Morrison

v. Magistrate Judge Elizabeth P. Deavers

HILTON CORPORATE OFFICE,

et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, an Ohio resident proceeding without the assistance of counsel, initiated this

action on August 16, 2024, by moving for leave to proceed in forma pauperis. (ECF No. 1.) By

Order dated August 20, 2024, the Court granted Plaintiff leave to proceed in forma pauperis.

(ECF No. 2.) By Order dated September 11, 2024, the Court directed Plaintiff to file an

amended complaint. (ECF No. 4.) The Court explained that it appeared that Plaintiff was

attempting to assert claims under Title VII of the Civil Rights Act of 1964, 42 U. S.C. §§ 2000e

to 2000e-17 (Title VII”), but her Complaint was too vague for the Court to discern specific

allegations for each Defendant. The Court further noted that the complaint contained only legal

conclusions that Plaintiff suffered sexual harassment, discrimination or a hostile work

environment without any factual support. (Id.)

On October 10, 2024, Plaintiff filed an Amended Complaint which is now before the

Court for the initial screen under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to

recommend dismissal of the Amended 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). Having performed the

initial screen, for the reasons that follow, it is RECOMMENDED that the Court DISMISS

Plaintiff’s Amended Complaint in its entirety.

I.

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)1 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.

1Formerly 28 U.S.C. § 1915(d).

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

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)). 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).

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. “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). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,

has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.

Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989)).

II.

The nature of Plaintiff’s claim is not clearly stated, although the EEOC charge attached to

her original Complaint suggests her intention to bring a Title VII claim. That charge reads, in its

entirety:

During my employment, I was subjected to harassment due to my sex, by General

Manager, Ken O’Reilly. Some examples of harassment include threatening to write

me up for things that I did not do, and continually changing my schedule so that I

could not do my job or report to work at times. Ken treated me and other female

employees less favorably than male employees. I was also harassed by a male

coworker. My coworker would continually get in my face and threaten me. I

complained multiple times to Human Resources about the harassment, but the

Respondent failed to take appropriate action. On or about April 17, 2024, I was

forced to resign due to the continuing discrimination.

I believe I have been discriminated against because of my sex (female), in violation

of Title VII of the Civil Rights Act of 1964, as amended.

Against that backdrop, and construing the Amended Complaint liberally, Plaintiff appears to be

asserting both a hostile work environment claim arising from alleged sexual harassment and a

gender discrimination claim.2 The Court will consider each of these potential claims in turn.

The United States Court of Appeals for the Sixth Circuit recently reiterated the elements

of a hostile work environment claim in Schlosser v. VRHabilis, LLC, 113 F.4th 674 (6th Cir. 2024):

2 Plaintiff’s Amended Complaint does not further address the issue of medical leave as

alluded to in the original Complaint. At one point, Plaintiff states that “On 9-22-23 I went to

urgent care and they took me off work for a few day but they made me come back to work the

next day.” Later, she states that “4-2-24 My counselor was trying to have them send over

paperwork to take me off Because everything that being happen messed with my mental health

and they would not send nothing over and didn’t.” (ECF No. 6 at 3, 5.) Plaintiff does not

connect these apparently unrelated incidents to any claim of discrimination or retaliation relating

to medical leave.

To prevail on a hostile work environment claim on the basis of her sex or gender

under Title VII, a plaintiff must show that: “(1) she was a member of a protected

class; (2) she was subjected to unwelcome ... harassment; (3) the harassment

complained of was based on sex; (4) the charged sexual harassment created a hostile

work environment; and (5) the employer is liable.” Randolph v. Ohio Dep't of Youth

Servs., 453 F.3d 724, 733 (6th Cir. 2006).

Id. at 683. To be sure, Plaintiff “need not allege specific facts establishing the prima facie case”

at this stage. Meka v. Dayco Prod. LLC, No. 2:23-CV-11437, 2024 WL 3556180, at *2 (E.D.

Mich. July 26, 2024) (citing Savel v. MetroHealth Sys., 96 F.4th 932, 943 (6th Cir. 2024)).

However, Plaintiff must plead sufficient facts from which the Court, “’informed by its judicial

experience and common sense, could draw the reasonable inference’” that she was subject to a

hostile work environment “based on a protected characteristic.” Id. (quoting Keys v. Humana,

Inc., 684 F.3d 605, 610 (6th Cir. 2012)). Thus ‘“a complaint that includes only conclusory

allegations of discriminatory intent without supporting factual allegations’ fails to state a claim.”

Id. (quoting HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 613 (6th Cir. 2012)).

Here, Plaintiff has failed to allege a plausible hostile work environment claim. Other

than the conclusory statement in her EEOC charge that she was discriminated against because

she was female, Plaintiff’s Amended Complaint is devoid of any facts upon which the Court

could infer that her gender had anything to do with any alleged harassment. While Plaintiff

identifies certain instances where “Lawrence” presumably the co-worker identified in her EEOC

charge, yelled at her, accused her of stealing, “harassed” her about appointments, and entered the

building while she was working the night shift, Plaintiff has failed to connect any of these

alleged actions to her gender. The same can be said of Plaintiff’s complaints regarding the

actions of her General Manager, Ken O’Reilly, regarding scheduling changes and various

“threats” of discipline. Given these minimal facts, the Court is left with nothing but speculation

as to whether any of these alleged actions were because of Plaintiff’s gender as opposed to her

work performance scheduling needs, or some other reason.

Plaintiff’s gender discrimination claim fares no better. To establish a prima facie case of

discrimination, Plaintiff must allege that she is a member of a protected group; (2) she was

subjected to an adverse employment decision; (3) she was qualified for the position; and (4) she

was replaced by a person outside the protected class, or similarly situated non-protected

employees were treated more favorably. Peltier v. United States, 388 F. 3d 984, 987 (6th Cir.

2004). Plaintiff has not set forth any facts plausibly demonstrating that she was discriminated

against on the basis of her gender. That is, even noting Plaintiff’s gender and recognizing that,

under certain circumstances resignation may be considered an adverse employment decision,

Plaintiff fails to meaningfully address the remaining elements of this claim. Her allegations are

silent as to her qualifications for her position. Most importantly, however, Plaintiff’s assertion in

her EEOC charge that she and other female employees were treated less favorably than male

employees is wholly conclusory. As such, it does not allow a plausible inference that any

employee outside of Plaintiff’s alleged protected class who was similarly situated to her was

treated more favorably than she was.

Two final points. First, Plaintiff also asserts that she suffered an injury when the ice

machine door fell on her foot. Ohio's worker compensation laws, however, establish an

exclusive remedy for employees injured on the job. Those laws, as applicable here, prevent

employees from suing employers to recover for injury. Ulrick v. Kunz, 349 F. App'x 99, 101

(6th Cir. 2009) (citing R.C. § 4123.74). Further, Plaintiff’s isolated statement that she was not

allowed to use bereavement leave when her aunt passed away is insufficient to be construed as

raising an independent claim.

IV.

For the reasons set forth above, it is RECOMMENDED that the Amended Complaint be

DISMISSED in its entirety for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

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

Recommendation will result in a forfeiture of the right to de novo review of by the District Judge

and forfeiture of the right to appeal the judgment of the District Court. Even when timely

objections are filed, appellate review of issues not raised in those objections is forfeited. Robert

v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s

report, which fails to specify the issues of contention, does not suffice to preserve an issue for

appeal . . . .” (citation omitted)).

/s/ Elizabeth A. Preston Deavers______

DATED: November 12, 2022 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE