Shaw v. TruGreen

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

______________________________________________________________________________

TEKEVA D. SHAW, )

)

Plaintiff, )

)

v. ) No. 2:24-cv-02355-JPM-atc

)

TRUGREEN, et al., )

)

Defendants. )

______________________________________________________________________________

REPORT AND RECOMMENDATION FOR PARTIAL SUA SPONTE DISMISSAL AND

ORDER TO ISSUE PROCESS FOR THE REMAINING DEFENDANT

______________________________________________________________________________

On May 24, 2024, Plaintiff Tekeva Shaw filed a pro se Complaint alleging claims under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) against

Defendants TruGreen, Andrew Jones, Joseph Troncone, Rose Camamo, Jason Mitchum,

Ernestina Kilcrease, Jennifer Castillo, and Jamie Giddens. (ECF No. 1.) Shaw also filed a

motion to proceed in forma pauperis, which was subsequently granted. (ECF Nos. 3, 8.)

Pursuant to Administrative Order No. 2013-05, this case has been referred to the United States

Magistrate Judge for management and for all pretrial matters for determination and/or report and

recommendation as appropriate.

For the reasons discussed below, the Court RECOMMENDS that Shaw’s claims against

the individually named Defendants be dismissed sua sponte, pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii), for failure to state a claim upon which relief may be granted. The Court

further ORDERS that process be issued to TruGreen.

REPORT AND RECOMMENDATION

I. PROPOSED FINDINGS OF FACT

Shaw filed her Complaint on a Court-supplied form, alleging claims against Defendants

for violations of Title VII.1 (ECF No. 1.) She alleges that she was discriminated against on the

basis of her race (African American), color (Brown/Black), sex (female), and religion

(Christian/spiritual/Taoism/extrasensory perceptions) and that she suffered harassment, unequal

terms and conditions of her employment, and retaliation while working for TruGreen. (Id. at 3–

4.) Specifically, Shaw contends that she was treated differently than her coworkers and

subjected to “neglect and harassment and discrimination” by various coworkers, including

Andrew Jones—her team trainer and supervisor. (Id. at 4, 7, 13.)

Shaw contends that she attempted to report the alleged discrimination to TruGreen’s

internal ethics hotline on multiple occasions, to no avail. (Id. at 4, 10, 13.) She further contends

that at least some of the alleged workplace discrimination took place in retaliation of her

attempting to report previous discriminatory acts to TruGreen’s ethics hotline. (Id.)

II. PROPOSED CONLUSIONS OF LAW

A. 28 U.S.C. § 1915(e)(2) Screening

Under Local Rule 4.1(b)(2), the Clerk of the Court will only issue summonses in cases

with non-prisoner pro se plaintiffs who are proceeding in forma pauperis at the Court’s direction

1 In addition to her Complaint, Shaw submitted a Right to Sue Letter from the Equal

Employment Opportunity Commission (“EEOC”), an EEOC Inquiry Information document, and

her Charge of Discrimination against TruGreen. (Id. at 8–13.) The Court takes judicial notice of

these attachments to the Complaint. See Harper v. Shelby Cnty. Gov’t, No. 2:15-cv-2502-STA-

cgc, 2016 WL 737947, at *4 (W.D. Tenn. Feb. 23, 2016) (citing Amini v. Oberlin Coll., 259 F.3d

493, 502 (6th Cir. 2001)) (“When a Court considers whether dismissal for failure to state a claim

is appropriate, the Court may consider the complaint and attached exhibits, as well as any public

records, so long as they are referred to in the complaint and are central to the claims contained

therein.”).

after the Court conducts a screening under 28 U.S.C. § 1915(e)(2)(B). Under that provision, the

Court shall dismiss the case at any time if it determines that 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.” This Report and Recommendation

constitutes the Court’s screening.

B. Standard of Review for Failure to State a Claim

To determine whether Shaw’s Complaint states a claim for which relief may be granted,

the Court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as articulated in

Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

“Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the

. . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal citations

and quotations omitted). The Court “construes the complaint in a light most favorable to [the]

plaintiff” and “accepts all factual allegations as true” to determine whether they plausibly

suggest an entitlement to relief. HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir.

2012).

Pleadings provide facial plausibility when they present “factual content that allows the

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

Iqbal, 556 U.S. at 678. However, “pleadings that . . . are no more than conclusions[] are not

entitled to the assumption of truth. While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also

Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket

assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to

see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature

of the claim, but also ‘grounds’ on which the claim rests.”).

“[A] pleading filed pro se is to be liberally construed and held to less stringent standards

than a pleading filed by counsel.” Kondaur Cap. Corp. v. Smith, 802 F. App’x 938, 945 (6th Cir.

2020) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)); see also Vandiver v. Vasbinder, 416

F. App’x 560, 562 (6th Cir. 2011) (finding the less stringent standard applies to pro se

complaints, “however inartfully pleaded”). Nevertheless, pro se litigants “are not exempt from

the requirements of the Federal Rules of Civil Procedure.” Wright v. Penguin Random House,

783 F. App’x 578, 581 (6th Cir. 2019) (citing Fox v. Mich. State Police Dep’t, 173 F. App’x 372,

376 (6th Cir. 2006)); see also Young Bok Song v. Gipson, 423 F. App’x 506, 510 (6th Cir. 2011)

(“[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf

of pro se litigants. Not only would that duty be overly burdensome, but it would also transform

the courts from neutral arbiters of disputes into advocates for a particular party. While courts are

properly charged with protecting the rights of all who come before it, that responsibility does not

encompass advising litigants as to what legal theories they should pursue.”); 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.’”) (quoting Clark v. Nat’l Travelers Life Ins. Co.,

518 F.2d 1167, 1169 (6th Cir. 1975)). “A pro se complaint must still ‘contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.’” Shelby v.

Greystar Mgmt. Servs., L.P., No. 2:17-cv-02650-SHM-cgc, 2018 WL 386647, at *2 (W.D. Tenn.

Jan. 11, 2018) (quoting Barnett v. Luttrell, 414 F. App’x. 784, 786 (6th Cir. 2011)).

C. Shaw’s Title VII Claims Against the Individual Defendants

Shaw brings Title VII claims against Jones, Troncone, Camamo, Mitchum, Kilcrease,

Castillo, and Giddens, all of whom were presumably Shaw’s coworkers and supervisors at

TruGreen. However, these claims should be dismissed because “an individual

employee/supervisor, who does not otherwise qualify as an ‘employer,’ may not be held

personally liable under Title VII.” Wathen v. Gen. Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997);

see also Mitchell v. Fujitec Am., Inc., 518 F. Supp. 3d 1073, 1100 (S.D. Ohio 2021) (quoting

Little v. BP Expl. & Oil Co., 265 F.3d 357, 362 (6th Cir. 2001)) (“Title VII does not include

individual liability, even for supervisors. Indeed, ‘[t]he law in this Circuit is clear that a

supervisor who does not otherwise qualify as an employer cannot be held personally or

individually liable under Title VII.’”). As a result, the Court recommends that Shaw’s Title VII

claims against the individual Defendants be dismissed with prejudice.

D. Shaw’s Title VII Claims Against TruGreen

When construing the Complaint in a light most favorable to Shaw and accepting her

allegations as true, the Court finds that she has satisfied the low threshold of alleging facially

plausible Title VII claims against TruGreen for purposes of screening under 28 U.S.C.

§ 1915(e)(2)(B)(ii). As such, issuance and service of process is ordered, as discussed below.

III. RECOMMENDATION

For the reasons set forth above, it is recommended that Shaw’s claims against Jones,

Troncone, Camamo, Mitchum, Kilcrease, Castillo, and Giddens for violations of Title VII be

dismissed with prejudice.

ORDER TO ISSUE AND EFFECT SERVICE OF PROCESS

Having found that Shaw has sufficiently stated claims for discrimination under Title VII

against TruGreen for purposes of screening the Complaint, the Court finds that issuance of a

summons is appropriate. The Clerk is directed to issue process for TruGreen and deliver that

process to the U.S. Marshal for service along with a copy of the Complaint and this Report and

Recommendation/Order. Service shall be made on TruGreen pursuant to Federal Rule of Civil

Procedure 4(h). All costs of service shall be advanced by the United States.

Shaw shall serve a copy of every document filed in this case on the attorneys for

TruGreen. Shaw shall include a certificate of service with every document filed. She shall

familiarize herself with the Federal Rules of Civil Procedure and this Court’s Local Rules. Shaw

shall promptly notify the Clerk of any change of address or extended absence. Failure to comply

with these requirements, or any other order of the Court, may result in the dismissal of this case

without further notice.

SO ORDERED this 19th day of November, 2024.

s/Annie T. Christoff

ANNIE T. CHRISTOFF

UNITED STATES MAGISTRATE JUDGE

NOTICE

Within fourteen (14) days after being served with a copy of this report and recommendation

disposition, a party may serve and file written objections to the proposed findings and

recommendations. A party may respond to another party’s objections within fourteen (14)

days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Failure to file objections within

fourteen (14) days may constitute forfeiture/waiver of objections, exceptions, and further

appeal.