Randolph v. Bath & Body Works, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DEVIN RANDOLPH,

Plaintiff,

Case No. 2:25-cv-284

vs. Judge Michael H. Watson

Magistrate Judge Elizabeth P. Deavers

BATH & BODY WORKS, INC.,

et al.,

Defendants.

INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, Devin Randolph, an Ohio resident proceeding here pro se, was granted leave to

proceed in forma pauperis by previous Order of the Court. (ECF No. 5.)

This matter is now before the Undersigned to undertake the initial screen required by law

to identify cognizable claims and to recommend dismissal of Plaintiff’s 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. §

1915A(a); 28 U.S.C. § 1915(e)(2). Having completed the initial screen, the Undersigned

RECOMMENDS that the Court DISMISS Plaintiff’s claims in their 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.

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

1Formerly 28 U.S.C. § 1915(d).

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.

Plaintiff states that he brings claims “for violations of the Americans with Disabilities

Act (“ADA”), Title VII of the Civil Rights Act, and constitutional due process rights, as well as

unethical legal practices.” (ECF No. 6.) He names as Defendants Bath & Body Works, Inc.

(Bath & Body), his former employer; the law firm of Vorys, Sater, Seymour and Pease LLP

(“Vorys”), counsel for Bath & Body; the U.S. Equal Employment Opportunity Commission

(Cleveland Branch) (“EEOC”), and Spitz, the Employee’s Law Firm (“Spitz”), his former legal

counsel.

Initially, he identifies the following ADA claims for relief directed to Bath & Body:

disability discrimination for failure to provide reasonable accommodations for his tendinitis

disability, failure to engage in the interactive process regarding his need for an accommodation

relating to time off for prescribed physical therapy; termination based on his disability, and

retaliation for requesting a reasonable accommodation. He also identifies a claim for racial

discrimination under Title VII against Bath & Body for denial of promotional opportunities.

Further, he identifies a 42 U.S.C. § 1983 claim for due process violations presumably against all

named Defendants. Finally, he identifies a claim directed to Spitz for “unethical practices.”

Briefly, Plaintiff’s claims appear to flow from the alleged ADA violations. According to

Plaintiff, he was employed by Bath and Body from September 8, 2022, until February 14, 2023.

While employed there, he was diagnosed with “tendinitis” and “prescribed physical therapy,”

requiring an accommodation by Bath and Body. The bulk of Plaintiff’s allegations, however,

appear under “Count V: Violation of Constitutional Rights (Due Process Violation).” Under this

Count, Plaintiff alleges various forms of misconduct in the handling of his EEOC claim by Bath

and Body, the EEOC, and the Spitz law firm.

III.

A. Plaintiff’s Claims Against Bath and Body

1. ADA Claims

As noted, Plaintiff asserts causes of action for violations of the ADA based on disability

under several theories: (1) disability discrimination; (2) failure to accommodate; (3) failure to

engage in the interactive process; and (4) retaliation.

In short, the ADA prohibits employers from “discriminat[ing] against a qualified individual

on the basis of disability in regard to job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a). Importantly, “at the pleading stage, a

Plaintiff is not required to ‘plead facts establishing the prima facie case of discrimination.

Instead, a Plaintiff is only required to show: (1) that he “was disabled or regarded as disabled and

(2) that [he] was otherwise qualified for a position.’” Denoewer v. Union Cnty. Indus., 611 F.

Supp. 3d 458, 475 (S.D. Ohio 2020) (quoting Morgan v. St. Francis Hosp., No. 19-5162, 2019

WL 5432041, at *1 (6th Cir. Oct. 3, 2019) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506,

510-12 (2002)).

Taking the second requirement first, Plaintiff’s Complaint fails to state clearly the precise

nature of his position at Bath and Body. A review of the 54 pages of attachments to his

Complaint reveals Bath and Body’s description of his position as “a seasonal employee hired to

handle increased warehouse volume during peak season (roughly September through February,

generally coinciding with the holidays).” (ECF No. 1-3 at 14.) Plaintiff’s allegations do not

refute this characterization. Other allegations sprinkled throughout the Complaint assert that

Plaintiff was “a strong worker” and had an “excellent performance record.” (ECF No. 1-1 at 8.)

Generously assuming this information taken together would be sufficient to demonstrate that

Plaintiff was “otherwise qualified for a position,” Plaintiff fails to show that he was disabled

under the ADA.

“An individual is considered ‘disabled’ under the ADA if he or she: ‘(A) [has] a physical or

mental impairment that substantially limits one or more of [his or her] major life activities...; (B)

[has] a record of such an impairment; or (C) [is] regarded as having such an impairment.’”

Hazen v. Cleveland Clinic Found., No. 1:21-CV-01965, 2022 WL 3083027, at *5 (N.D. Ohio

July 29, 2022) (quoting Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 252 (6th Cir. 2000)

(quoting 42 U.S.C. § 12102(2) (alterations in original)). “The term ‘substantially limits’ shall be

construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms

of the ADA.” Id. (quoting 29 C.F.R. § 1630.2(j)(1)(i)). Indeed, “‘[s]ubstantially limits’ is not

meant to be a demanding standard.” Id. “Major life activities” include “walking, standing,

sitting, reaching, lifting, [and] bending.” Id. at § 1630.2(i)(1)(ii).

Importantly, the ADA was amended in 2008 by the Americans with Disabilities Act

Amendments Act (“ADAAA”), in which Congress “instructed courts to interpret the term

‘disability’ broadly, given the ADA's remedial purpose.” Hentze v. CSX Transportation, Inc.,

477 F. Supp. 3d 644, 660 (S.D. Ohio 2020) (citing Hostettler v. Coll. of Wooster, 895 F.3d 844,

853 (6th Cir. 2018)); see also Smith v. Bryce Corp., No. 20-2828-TMP, 2023 WL 3168344, at *9

(W.D. Tenn. Apr. 28, 2023). Nevertheless, as a matter of law and even following the 2008

Amendments, “non-severe impairments that last only a short period of time are not

necessarily covered by the ADA.” Lovreta v. Delta Global Servs., No. 2:19-cv-02469-JTF-jay,

2019 WL 8016714, at *5 (W.D. Tenn. Nov. 5, 2019) (collecting cases), report &

recommendation adopted, 2020 WL 91503 (W.D. Tenn. Jan. 8, 2020); see also Roan v. United

Parcel Serv., No. 3:17-CV-01178, 2019 WL 2171488, at *4 (M.D. Tenn. May 20, 2019) (finding

that plaintiff failed to establish he was disabled where he suffered minor, non-chronic muscle

strain which limited his ability to perform certain activities for an extremely short period of

time); Gleason v. Food City 654, No. 3:13-CV-712-PLR-HBG, 2015 WL 1815686, at *5 (E.D.

Tenn. April 22, 2015) (finding that the plaintiff failed to establish that he was disabled under the

ADA where his restrictions on lifting and the number of hours worked were not severe and lasted

only one month).

Here, Plaintiff’s Complaint offers scant detail of his alleged disability. The Complaint itself

mentions only a tendinitis diagnosis and a required one-month physical therapy plan. Plaintiff’s

conclusory allegations fail to offer any explanation of the nature of his alleged tendinitis or any

description of its impact on his major life activities. (ECF No. 1-1 at 2, 8.) Beyond this, buried

in the 54 pages of attachments to his Complaint are two copies of the same letter from his

physician, dated February 3, 2023, stating in substantive entirety:

Please excuse the absence of Devin J. Randolph, for he was seen in my office for

an appointment on 2/3/23. No lifting for 4 weeks. Sit down breaks every 5 minutes

for 4 weeks.

(ECF No. 1-3 at 19, 22.) The letter contains no mention of a tendinitis diagnosis or required

physical therapy. Thus, to the extent Plaintiff may be relying on this letter as support for his

claim of disability, it comes up short. At best the letter confirms that Plaintiff was suffering

some impairment requiring some limitations of very short-term duration. As the above authority

confirms, an impairment of such short duration generally does not constitute a disability under

the ADA. In the absence of any additional information regarding Plaintiff’s alleged condition,

even construing his claims liberally given his pro se status, Plaintiff has provided no basis to

depart from that general rule here. Accordingly, it is RECOMMENDED that all of Plaintiff’s

ADA claims against Bath and Body be DISMISSED for failure to state a claim.

2. Racial Discrimination under Title VII

To establish a prima facie case of racial discrimination based on a failure to promote, a

plaintiff must show that: (1) he is a member of a protected class; (2) he applied for and was

qualified for a promotion; (3) he was considered for and was denied the promotion; and (4) an

individual of similar qualifications who was not a member of the protected class received the

promotion at the time plaintiff's application was denied. Wilson v. Ford Motor Co., 513 F. App'x

585, 588 (6th Cir. 2013) (citation omitted). Plaintiff’s conclusory allegation of racial

discrimination fails to address any of these elements. This includes even the most fundamental

element, membership in a protected class. Accordingly, it is RECOMMENDED that Plaintiff’s

Title VII claim against Bath and Body be DISMISSED for failure to state a claim.

B. Plaintiff’s Remaining Claims

Quickly, a careful review of the Complaint reveals Plaintiff’s failure to allege any

specific conduct undertaken by the law firm of Vorys. Where a person is simply named as a

defendant without a factual allegation of specific misconduct, the complaint is insufficient to

state a plausible claim for relief. Gilmore v. Corr. Corp. of Am., 92 F. App'x 188, 190 (6th Cir.

2004). Moreover, to the extent that Plaintiff may be intending to assert any claim against Vorys

for a violation of his constitutional rights, private attorneys generally are not considered to be

state actors for purposes of § 1983. Cudejko v. Goldstein, 22 F. App'x 484, 485 (6th Cir. 2001)

(citing Polk County v. Dodson, 454 U.S. 312, 318 (1981)). Plaintiff has set forth no facts

warranting a departure from that general rule here. Similarly, any § 1983 claim intended against

the Spitz law firm also cannot succeed. Just like Vorys, Spitz is a private law firm not

considered to be a state actor. Again, Plaintiff has set forth no facts warranting a departure from

that general rule as to Spitz’s conduct. Accordingly, it is RECOMMENDED that Plaintiff’s §

1983 claims against Vorys and Spitz be DISMISSED for failure to state a claim.

Further, the EEOC Plaintiff sues here is a federal agency. As such, it acts under color of

federal law, not state law, and thus is not subject to suit under § 1983. Robinson v. EEOC, No.

17-2674-JPM-DKV, 2017 WL 4899141, at *3 (W.D. Tenn. Oct. 10, 2017), report and

recommendation adopted, No. 217CV02674JPMDKV, 2017 WL 4898846 (W.D. Tenn. Oct. 30,

2017) (citing D.C. v. Carter, 409 U.S. 418, 424–25 (1973) (stating that § 1983 does not reach

“actions of the Federal Government and its officers”)). Accordingly, it is RECOMMENDED

that Plaintiff’s claims against the EEOC be DISMISSED for failure to state a claim.

Finally, to the extent Plaintiff seeks to assert an independent claim against Spitz for

“unethical practices,” that claim also fails. The basis of the purported claim is Plaintiff’s

allegation that Spitz entered into a settlement without his consent. First, this claim, as Plaintiff

has alleged it, fails to set forth a cognizable legal theory. Moreover, to the extent Plaintiff’s

claim is construed more properly as a legal malpractice claim, such a claim “pertain[s] squarely

to state law and do[es] not arise under federal law of the United States Constitution.” Bland v.

Sawyers, No. 2:24-CV-4015, 2024 WL 4466250, at *3 (S.D. Ohio Oct. 10, 2024), report and

recommendation adopted, No. 2:24-CV-4015, 2024 WL 4987162 (S.D. Ohio Dec. 5, 2024)

(citing Gunn v. Minton, 568 U.S. 251, 253 (2013) (characterizing a legal malpractice claim as a

state-law claim)). Because dismissal of Plaintiff’s federal claims is recommended above, it is

also RECOMMENDED that, pursuant to 28 U.S.C. § 1367(c)(3), the Court decline to exercise

supplemental jurisdiction over any state law claim Plaintiff may have attempted to state here.

IV.

For the reasons set forth above, it is RECOMMENDED that Plaintiff’s federal claims be

DISMISSED in their entirety. To the extent that Plaintiff’s Complaint may be properly

construed as raising a state law legal malpractice claim, it is RECOMMENDED that any such

claim be DISMISSSED without prejudice.

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 waiver 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: April 23, 2025 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE