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, et al.,

Defendants.

REPORT AND RECOMMENDATION

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

former employer and its owners. This matter is before the Undersigned for an initial screen of

Plaintiff’s Amended Complaint under 28 U.S.C. § 1915(e)(2). For the following reasons, the

Undersigned RECOMMENDS that his Amended Complaint (Doc. 7) be DISMISSED.

I. BACKGROUND

Plaintiff filed this action on October 25, 2024, alleging that he was discriminated against

based on his race by his former employer, CommuteAir. (Doc. 1-1). The Court granted his motion

to proceed in forma pauperis and construed his complaint as bringing a claim for employment

discrimination under Title VII. (Doc. 4). Initially, the Undersigned recommended dismissing the

complaint for pleading and statute of limitations issues. (See id.). But after Plaintiff provided

more information, (Doc. 5), the Undersigned withdrew that recommendation and granted Plaintiff

leave to amend his complaint. (Doc. 6 at 3–5). At the same time, the Undersigned outlined his

complaint’s deficiencies and the pleading requirements for an employment discrimination claim.

(See id.). Further, the Undersigned instructed Plaintiff to provide a Right to Sue Notice from the

Equal Employment Opportunity Commission (EEOC), if he received one. (Id. at 5).

Approximately two weeks later, Plaintiff filed his Amended Complaint. (Doc. 7). While

Plaintiff added Champlain Enterprises, Inc., and United Airlines, Inc., as Defendants, he did not

change the narrative portion of his complaint at all. (See Doc. 7 at 1 (adding Defendants who are

allegedly “owners” of CommuteAir), 3–4 (stating the same as his initial complaint)). Instead,

Plaintiff attached numerous exhibits to his original complaint and wrote some notations in the

margins of those documents. (See Doc. 7-1; Doc. 7-2). With those exhibits, Plaintiff did not

include a Right to Sue Notice from the EEOC. (Id.).

The Court now screens Plaintiff’s Amended Complaint as required under 28 U.S.C.

§ 1915(e).

II. 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). Complaints by pro se litigants are to be construed liberally and held to less stringent

standards than those prepared by attorneys. Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004).

But this leniency is not boundless, and “it is not within the purview of the district court to conjure

up claims never presented.” Frengler v. Gen. Motors, 482 F. App’x 975, 977 (6th Cir. 2012). Nor

is it the Court’s role to “ferret out the strongest cause of action on behalf of pro se litigants” or

advise “litigants as to what legal theories they should pursue.” Young Bok Song v. Gipson, 423 F.

App’x 506, 510 (6th Cir. 2011) (considering the sua sponte dismissal of an amended complaint

under 28 U.S.C. § 1915(e)(2)). At bottom, “basic pleading essentials” are still required, regardless

of whether an individual proceeds pro se. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

These essentials are not onerous or overly burdensome. A complaint must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief,” see Fed. R. Civ. P.

8(a)(2), and provide the defendant with “fair notice of what the . . . claim is and the grounds upon

which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation omitted).

In reviewing Plaintiff’s Amended Complaint at this stage, the Court must construe it in his 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.” Id. at 570. “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). Although this standard does not require “detailed factual

allegations, . . . [a] pleading that offers labels and conclusions” is insufficient. Iqbal, 556 U.S. at

662 (internal quotation and quotation marks removed). In the end, the Court must dismiss the

Amended Complaint “if it tenders naked assertions devoid of further factual enhancement.” Id.

(internal quotation and quotation marks omitted).

III. DISCUSSION

In its previous Order, the Undersigned outlined several pleading deficiencies with

Plaintiff’s original complaint. (See Doc. 6 at 3–5 (noting that Plaintiff did not identify his protected

class, provide specifics on Defendant CommuteAir’s conduct, or connect that conduct to his

protected characteristics)). Instead of remedying those deficiencies, Plaintiff’s Amended

Complaint is exactly the same as his first. (Compare Doc. 7 at 3, with Doc. 1-1 at 3). All that has

changed is that Plaintiff added two companies as Defendants, claiming they are Defendant

CommuteAir’s “owners.” (Doc. 7 at 1).

Additionally, Plaintiff attaches numerous exhibits to his original pleading. (See Docs. 7-1,

7-2). But Plaintiff provides little explanation of what these exhibits are or how they support his

allegations. (See Doc. 7 at 3 (failing to mention the exhibits at all); Doc. 7-1 at 4 (handwritten

note on an email that Plaintiff received a “write-up”), 8 (handwritten statement that Plaintiff did

not receive certain shifts he wanted), 10 (discussing a person named “Joslyn” who did not receive

a “write up”), 12 (another note about “Joslyn” on a screenshot of a schedule)). Twice now, the

Court has provided “a roadmap laying out the elements” for pleading employment discrimination

claims. Link v. Bd. of Educ. of Kettering City Sch., No. 3:22-cv-295, 2024 WL 3624325, at *2

(S.D. Ohio Aug. 1, 2024); (Doc. 4 at 3; Doc. 6 at 3–5). Instead of alleging facts showing he is

entitled to relief, Plaintiff seemingly provides a muddle of documents and seeks for the Court to

“conjure up claims” on his behalf. Frengler, 482 F. App’x at 977. As discussed, the Court cannot

do so. See Emerson v. Novartis Pharm. Corp., 446 F. App’x 733, 736 (6th Cir. 2011) (“Judges are

not like pigs, hunting for truffles that might be buried in the record.” (internal quotation and

quotation marks omitted)).

The Undersigned instead looks to Plaintiff’s brief statement of his claim, where he again

alleges that he was “forced to resign” due to false accusations by his manager, that he was treated

differently than his coworkers regarding discipline, and that he did not receive certain shifts he

preferred. (Doc. 7 at 3). Where Plaintiff’s exhibits attached to his Amended Complaint

ascertainably address these issues, the Court will consider them and construe them liberally in his

favor. Id. at 712. But put plainly, the Court will not create allegations or claims on his behalf.

Martin, 391 F.3d at 714.

A. Employment Discrimination

The entirety of Plaintiff’s Amended Complaint is as follows:

I was forced to resign for Commuteair because of discrimination. I was forced to

resign on 7/19/2023 by HR/Jeremy Gorges because of false accusations brought to

him by my manager (Magen Edwards). I experienced multiple incidents of

discrimination by watching my co-workers become rewarded with acts that I was

told I cannot. Then, I was held to a different standard of discipline which my co-

workers brought to my attention when I received discipline on a shift with multiple

people having the same access and similar shift responsibilities that overlap when

it comes to operational needs. I was let go and advised by Mr. Jeremy Gorges that

he was not racist and neither was the company. I asked for an investigation to be

conducted, and he emailed me 8/4/2023, “The concerns I was able to substantiate,

such as shifts being removed from the bid, are not a violation of company policy.”

The shift I let Magen Edwards know I wanted was changed after my first bid. And,

the next bid for operations that I was rewarded was removed and I was given a shift

that did not correlate with operational needs.

(Doc. 7 at 3).

In this, Plaintiff identifies no discernible legal claims, but the Court again construes these

allegations as bringing an employment discrimination claim under Title VII of the Civil Rights Act

of 1964. Title VII provides that it is unlawful “for an employer . . . 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). To support a Title VII claim, individuals may provide either direct or circumstantial

evidence of discrimination. White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008),

abrogated on other grounds by Muldrow v. City of St. Louis, 601 U.S. 346, 354–55 (2024). Here,

because Plaintiff does not allege any direct evidence of discrimination, the Court considers his

allegations using the McDonnell Douglas framework as a guide. (See Docs. 7, 7-1 (discussing

only how he was treated differently than other coworkers)); Younnis v. Pinnacle Airlines, Inc., 610

F.3d 359, 363 (6th Cir. 2010). To establish such a claim of discrimination, Plaintiff must

demonstrate “(1) that he is a member of a protected class; (2) that he suffered an adverse

employment action; (3) that he was qualified for the position; and (4) that a similarly-situated

employee outside the protected class or classes was treated more favorably than he.” Younnis, 610

F.3d at 363. Notably, Plaintiff does not need to plead every element at this stage. Keys v. Humana,

684 F.3d 605, 609 (6th Cir. 2012). But he must allege enough facts for the Court to reasonably

infer that Defendant discriminated against him because of a protected characteristic. Id.

Like in his first filing, Plaintiff fails to identify his protected class. (Doc. 7). And he does

not identify the basis of Defendants’ alleged discrimination other than implying that Defendant

CommuteAir was “racist.” (See id. at 3). In the EEOC charge and pre-charge inquiry attached to

his Amended Complaint, Plaintiff marks that he was discriminated against based on his race, color,

religion, and sex. (Doc. 7-1 at 15, 18). But he does not list his protected characteristics in those

documents either. (See Doc. 7 at 3; Doc. 7-1 at 14–20, 22 (noting that he is religious, but not

identifying a religion)). Yet at the end of his filing, he attaches an unsigned letter purportedly

written by his former coworker, who refers to Plaintiff as a Black man. (Doc. 7-2 at 1). To be

sure, this means Plaintiff belongs to a protected class on that basis. Tribble v. Memphis City Sch.,

193 F. App’x 401, 405 (6th Cir. 2006).

Even so, Plaintiff fails to allege facts that would allow the Court to “draw the reasonable

inference” that Defendants discriminated against him because of those characteristics. Keys, 684

F.3d at 610 (quoting Iqbal, 556 U.S. at 678)). While Plaintiff says that he was “forced to resign”

from his position, other materials he provides make clear that he was terminated. (Doc. 7 at 3;

Doc. 7-1 at 3, 12). And beyond stating that Defendant CommuteAir is “racist,” Plaintiff does not

connect his termination to his race or gender. (Doc. 7 at 3). Instead, Plaintiff says his termination

resulted from “false accusations” made against him. (Doc. 7 at 3; Doc. 7-1 at 2–3, 15). While

Plaintiff appears to believe these accusations were the result of racism, he provides no allegations

to support this conclusory statement. See Ramsey v. Frisch’s, No. 1:16-cv-1129, 2016 WL 7637287,

at *2 (S.D. Ohio Dec. 9, 2016) (finding a plaintiff failed to state a claim for race discrimination

under Title VII where he said he was fired due to his race but also due to issues with vacation time),

report and recommendation adopted, No. 1:16-cv-1129, 2017 WL 25553 (S.D. Ohio Jan. 3, 2017) ;

Greene v. Ohio State Univ., No. 2:14-cv-1809, 2014 WL 6389573, at *5 (S.D. Ohio Nov. 14, 2014)

(dismissing a compliant where the plaintiff alleged he was fired “for alleged misuse of sick time”

and concluded his termination actually resulted from racism without additional evidence).

The same is true for Plaintiff’s statements concerning discipline and scheduling.

Throughout his Amended Complaint, Plaintiff says he was disciplined and subjected to certain

accusations while others were not. (Doc. 7 at 3; Doc. 7-1 at 10, 13, 15, 19). But he does not

identify the race or gender of any of these coworkers or say how they were otherwise similarly

situated to him. (Doc. 7 at 3; Doc. 7-1 at 19; but see id. at 4, 11–12 (providing screenshots of

emails and schedules with supposed photos of his coworkers)). Nor does he provide any facts

showing how this allegedly differing treatment resulted from discrimination. (See Doc. 7-1 at 18–

19 (writing that other coworkers were “rewarded by doing whatever they wanted” but not

connecting that to his allegations of discrimination), 22 (discussing that Plaintiff did not receive a

shift change he requested but failing to provide other facts showing how that constituted

discrimination); Doc. 7-2 at 1 (stating without support that Plaintiff’s differing treatment resulted

from race or gender discrimination)); St. John v. Bd. of Trs. of Lakewood Library, No. 1:17-cv-

735, 2017 WL 4444133, at *2 (N.D. Ohio Oct. 4, 2017) (“Conclusory allegations of discrimination

are insufficient to state a plausible claim[.]”) (dismissing a complaint where a plaintiff said

discipline he received at a library was “racist” without alleging other facts in support). Indeed, at

some points in his Amended Complaint, Plaintiff provides contradictory information suggesting

that this treatment was the result of training deficiencies, operational and scheduling needs, and

Plaintiff’s own job performance. (See Doc. 7-1 at 6 (discussing shifts are awarded first by seniority,

then by operational needs), 15 (noting that Plaintiff received “write ups” for “shift problems” and

for sleeping during shifts), 19 (stating that management told him he did not get his preferred shifts

because “[he] didn’t know how and then for operations, lastly, because they can do it”)).

Further, it is not clear that Plaintiff’s shift and discipline issues meet the standard for

adverse employment actions in Title VII discrimination claims. For these types of claims, an

adverse employment action is one that results in “a materially adverse change in the terms and

conditions of a plaintiff’s employment.” Reynolds v. Mich. Dep’t of Corr., No. 12-12561, 2014

WL 172287, at *3 (E.D. Mich. Jan. 15, 2014) (internal quotation omitted). A “mere inconvenience

or an alteration of job responsibilities” is not enough; materially adverse employment actions

usually “inflict[] direct economic harm on the plaintiff.” Id. at *3–4. To that end, shift

reassignments or transfers “without salary or work hour changes do not ordinarily constitute

adverse employment decisions in employment discrimination claims.” Id. at *4 (quoting Kocsis

v. Multi-Care Mgmt., Inc. 97 F.3d 876, 885 (6th Cir. 1996)); see also Milczak v. Gen. Motors, LLC,

102 F.4th 772, 787 (6th Cir. 2024) (noting Title VII requires plaintiffs to show that job transfers

left them “worse off”). Here, Plaintiff does not point to any discipline issues that caused him to

lose hours, pay, or other advantages. (See Doc. 7 at 3); Handshoe v. Mercy Med. Ctr., 34 F. App’x

441, 448 (6th Cir. 2002) (finding a disciplinary “write-up” did not rise to the level of a materially

adverse employment action without other hardships). And although certain shifts may have been

preferable for Plaintiff, “[a] refusal to grant a shift change . . . is not an adverse employment action”

without other negative impacts, such as a decrease of pay, title, or benefits. Santana v. U.S. Tsubaki,

Inc., 632 F.Supp.2d 720, 721–722 (N.D. Ohio 2009) (collecting cases); (see Doc. 7-1 at 9 (stating

only that he received shifts he did not place “higher on [his] list”)).

The Court also notes that Plaintiff’s EEOC documents mark “retaliation” as another source

of discrimination. (Doc. 7-1 at 18). Plaintiff also checks a box that the retaliation occurred when

he “helped or was a witness in someone else’s complaint about job discrimination.” (Id.). But

upon review of all the attachments Plaintiff provides, the Court cannot ascertain what incident

Plaintiff is referring to in this portion of his filing. (See generally id.). Elsewhere, Plaintiff says

he was fired after he accused a manager of “displaying racism towards [him].” (Doc. 7-1 at 15).

But this, too, is a wholly conclusory statement unsupported by any evidence or additional facts.

See Reynolds-Collins v. Donahoe, No. 2:14-cv-1204, 2015 WL 5174641, at *4 (S.D. Ohio Sept. 4,

2015) (dismissing a Title VII retaliation claim where the plaintiff failed to set forward “sufficient

direct or inferential allegations related to any of the material elements”); Wells v. Steve Madden,

Ltd., No. 3-15-0366, 2015 WL 4476597, at *3 (M.D. Tenn. July 22, 2015) (dismissing a retaliation

claim as insufficiently pled where the plaintiff said her employer retaliated against her after she

complained about racism but failed to allege specific circumstances). Plus, this statement is

directly contradicted by other documents provided by Plaintiff in which he says he was fired due

to “false accusations.” (Doc. 7 at 3; Doc. 7-1 at 1–2); Link, 2024 WL 3624325, at *2 (noting that

inconsistencies in pleadings “make it difficult to form reasonable inferences in favor of the plaintiff”

(internal quotation omitted)). Given that Plaintiff offers little to no information about how he was

retaliated against, the Court cannot say he has met the minimal pleading requirements for a

retaliation claim under Title VII either. See Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir.

2011) (“[A] court cannot create a claim which a plaintiff has not spelled out in his pleading.”

(internal quotation and quotation marks omitted)).

While the requirements at this stage are low, Plaintiff provides no more than conclusory

statements that Defendants’ actions resulted from discriminatory motivations. See Clark v.

Johnston, 413 F. App’x 804, 817 (6th Cir. 2011) (noting that though pro se litigants’ pleadings are

construed liberally, they must still adhere to basic pleading standards). Without more, his

employment discrimination claims cannot proceed.

B. Exhaustion Issues

On a final note, the Undersigned previously directed Plaintiff to provide his Right to Sue

Notice from the EEOC. (Doc. 6 at 5). Plaintiff did not do so. (See generally Doc. 7; Doc. 7-1

(providing copies of his EEOC charge and pre-charge inquiry only)). Importantly, a plaintiff

seeking to bring an action under Title VII in federal court must first exhaust his administrative

remedies. Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 731 (6th Cir. 2006). “This

requirement exists so that the EEOC will have an opportunity to convince the parties to enter into

voluntary settlement, which is the preferred means of disposing of such claims.” Id. at 732.

Simply put, “without a right-to-sue letter from the EEOC . . . an individual may not file suit under

Title VII.” Bombach v. Dollar Gen. Store 12202, Dist. 437, Region 18, No. 3:12-cv-208, 2012 WL

2564844, at *2 (S.D. Ohio July 2, 2012), report and recommendation adopted, No. 3:12-cv-308,

2012 WL 2979011 (S.D. Ohio July 20, 2012). Accordingly, Plaintiff’s failure to provide his Right

to Sue Notice provides another basis for why this action should be dismissed. See Baber v. LEC,

No. 1:18-cv-62, 2018 WL 4610681, at *3 (S.D. Ohio Feb. 2, 2018) (citing Mitchell v. Chapman,

343 F.3d 811, 821 n.10 (6th Cir. 2003)), report and recommendation adopted, No. 1:18-cv-062,

2018 WL 3454683 (S.D. Ohio July 18, 2018); Bombach, 2012 WL 2564844, at *2 (recommending

the complaint be dismissed without prejudice for failing to provide a Right to Sue Notice).

IV. CONCLUSION

Because Plaintiff fails to allege sufficient facts for a claim under Title VII, and because he

did not provide his Right to Sue Notice as directed, the Undersigned RECOMMENDS that

Plaintiff’s Amended Complaint (Doc. 7) be DISMISSED.

Date: December 17, 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).