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.