Opinion

Rodgers v. Rayco

Court
District Court, W.D. Tennessee
Filed
Dec 9, 2024
Cited by
0 cases
Authority
More cited than 33.6%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

________________________________________________________________

PAMELA RODGERS, )

)

Plaintiff, )

)

v. ) No. 24-cv-2641-JPM-tmp

)

RAYCO, KIMCO, )

and TVA, )

)

Defendants. )

)

________________________________________________________________

REPORT AND RECOMMENDATION

________________________________________________________________

Before the court is pro se plaintiff Pamela Rodgers’s Amended

Complaint.1 (ECF No. 10.) Because Rodgers is proceeding in forma

pauperis, the undersigned must screen the complaint pursuant to 28

U.S.C. § 1915(e)(2).2

I. PROPOSED FINDINGS OF FACT

On September 6, 2024, Rodgers filed her original complaint

against Rayco, Kimco/KBS Service (“Kimco/KBS”),3 and the Tennessee

1Pursuant 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.

2The undersigned granted Rodgers leave to proceed in forma pauperis

on September 20, 2024. (ECF No. 7.)

3In her amended complaint, Rodgers explains that KBS Service

“apparently purchased Kimco two years ago.” (ECF No. 10 at PageID

46.)

Valley Authority (“TVA”) for violations of Title VII of the Civil

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

the Age Discrimination in Employment Act of 1967 (“ADEA”), 29

U.S.C. §§ 621, et seq. (ECF Nos. 1, 3.) On October 16, 2024, the

undersigned screened Rodgers’s complaint pursuant to 28 U.S.C. §

1915(e)(2). (ECF No. 8.) The undersigned recommended that the

district court dismiss Rodgers’s Title VII age discrimination and

Title VII hostile work environment claims for failure to state a

claim. (Id.) Regarding her Title VII retaliation and ADEA claims,

the undersigned found that Rodgers failed to allege specific facts

against each of the defendants but recommended that Rodgers be

given thirty days to amend her complaint. (Id.) District Judge Jon

P. McCalla adopted the Report and Recommendation on November 4,

2024, dismissing all allegations except Rodgers’s Title VII

retaliation and ADEA claims, and giving Rodgers until December 4,

2024, to file an amended complaint. (ECF No. 9.)

On December 3, 2024, Rodgers filed her amended complaint.

(ECF No. 10.) Rodgers alleges age discrimination and retaliation

under Title VII, 42 U.S.C. § 1981, and the ADEA. (Id.) Rodgers

explains that she was employed by “Rayco and/or Tennessee Valley

Authority . . . at the location of chiefly Lagoon Creek, but also

Millington, TN, Brownsville, TN, Covington, TN and Cordova, TN.”

(Id. at PageID 46.) Rodgers explains that she recently learned

that Rayco “allegedly through an agent Kimco, now KBS Service,

obtains their authority to be an ‘Allied Contractor.’” (Id.)

Most of Rodgers’s allegations relate to actions taken by

Rosena Phillips (whom Rodgers describes as a Rayco employee), and

Pat Jonakin (whom Rodgers identifies as a TVA employee). (Id.) In

support of her age discrimination claims, Rodgers alleges that she

was born in 1960 and that she was paid between $274 and $324, while

her younger male replacement “was offered $500 and paid $400” and

that “a young female was also paid more than she was for the same

job.” (Id. at PageID 47.) Rodgers alleges that “[t]he supervisor

at Rayco conspired with the manager on site for TVA and they both

treated Rodgers with disrespect and contempt because of her age.”

(Id.) She also alleges that she suffered a reduction in pay,

material changes in her work duties, and constructive termination.

(Id. at PageID 49.)

In support of her retaliation claims, Rodgers alleges that on

June 7, 2024, she filed two charges of discrimination and

retaliation with the Equal Employment Opportunity Commission

(“EEOC”) against TVA and Rayco, and that she filed a third against

Kimco/KBS with the EEOC and Tennessee Human Rights Commission,

“alleging discrimination based on age, discrimination and alleging

retaliation for objecting to and opposing discriminatory and

unlawful conduct.”4 (Id. at PageID 48-49.) Rodgers alleges that

4Rodgers attached those documents to her amended complaint. (ECF

No. 10-1.) In each of those complaints, Rodgers identifies Phillips

she was “retaliated against for [her] previous EEOC charge and

[her] several protected complaints objecting to age discrimination

and retaliation,” and (as described above) she suffered a reduction

in pay, material changes in work duties, and constructive

termination of her employment. (Id. at PageID 49.) Rodgers does

not allege any actions taken against her by Kimco/KBS employees.

Rodgers requests significant relief, including backpay, front

pay, compensatory and punitive damages both in the amount of $3

million, “the value of her lost benefits,” attorneys fees,

litigation expenses, and pre- and post-judgment interest. (Id. at

PageID 50.)

II. PROPOSED CONCLUSIONS OF LAW

A. Standard of Review

This court is required to screen in forma pauperis complaints

and must dismiss any complaint, or any portion thereof, if 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. 28 U.S.C. §

1915(e)(2)(B)(i-iii). To avoid dismissal for failure to state a

claim, “a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on

of Rayco, and Jonakin, Jeff Montgomery, and Mike Richardson of TVA

as culpable parties. (Id.) She does not identify any Kimco/KBS

employees.

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Fed. R. Civ. P.

8(a), 12(b)(6). “A claim is plausible on its face if the ‘plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.’” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648

F.3d 365, 369 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 678).

Without factual allegations in support, mere legal conclusions are

not entitled to the assumption of truth. Iqbal, 556 U.S. at 679.

Pro se complaints are held to less stringent standards than

formal pleadings drafted by lawyers and are thus liberally

construed. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)

(citing Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2002)).

Even so, pro se litigants must adhere to the Federal Rules of Civil

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

and the court cannot create a claim that has not been spelled out

in a pleading, see Brown v. Matauszak, 415 F. App’x 608, 613 (6th

Cir. 2011); Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th

Cir. 2003).

B. Claims Against Kimco/KBS

In her amended complaint, Rodgers seeks to bring each of her

claims against all the named defendants. While the undersigned has

screened the complaint and ordered the U.S. Marshal to issue and

serve process as to defendants TVA and Rayco, (ECF No. 11), Rodgers

provides no specific factual allegations that Kimco/KBS or any of

its employees discriminated against her. Indeed, the only

allegations in Rodgers’s complaint as to Kimco/KBS are related to

Kimco/KBS’s assisting Rayco in becoming a federal contractor, that

KBS Service purchased Kimco two years ago, that Kimco/KBS maintains

an anti-discrimination policy, and her conclusory statement that

Kimco/KBS is the correct defendant. (ECF No. 10 at PageID 46-47.)

Accordingly, Rodgers has not pleaded sufficient facts to state any

claims against Kimco/KBS under Iqbal, 556 U.S. at 678, and the

undersigned recommends that all claims be dismissed as to defendant

Kimco/KBS.

C. Section 1981 Claim

Rodgers also seeks to bring a § 1981 claim against all

defendants for age discrimination in her amended complaint. (ECF

No. 10.) “To state a claim under § 1981, a plaintiff must plead,

among other things, that ‘[they] belong[] to an identifiable class

of persons who are subject to discrimination based on their race’

and that ‘the defendant intended to discriminate against [them] on

the basis of race.’” Moniz v. Cox, 512 F. App'x 495, 500 (6th Cir.

2013) (quoting Amini v. Oberlin Coll., 440 F.3d 350, 358 (6th Cir.

2006)) (emphasis added); see also Gen. Bldg. Contractors Ass'n,

Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982). Rodgers alleges

only age-based discrimination; nowhere does she even identify her

race, let alone allege that she was discriminated against based on

her race. Accordingly, Rodgers fails to plausibly allege a § 1981

claim, and the undersigned recommends that this claim be dismissed

as to all defendants.

III. RECOMMENDATION

For the foregoing reasons, the undersigned submits that

Rodgers’s complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B)

as to all claims against defendant Kimco/KBS, and that her § 1981

claim also be dismissed as to defendants Rayco and TVA.

Respectfully submitted,

s/Tu M. Pham ____

TU M. PHAM

Chief United States Magistrate Judge

December 9, 2024 ____

Date

NOTICE

WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THIS

REPORT AND RECOMMENDED DISPOSITION, ANY PARTY MAY SERVE AND FILE

SPECIFIC WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS AND

RECOMMENDATIONS. ANY PARTY MAY RESPOND TO ANOTHER PARTY’S

OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A

COPY. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2); L.R.

72.1(g)(2). FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS

MAY CONSTITUTE A WAIVER AND/OR FORFEITURE OF OBJECTIONS,

EXCEPTIONS, AND FURTHER APPEAL.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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