Randolph v. Bath & Body Works, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Devin Randolph,

Plaintiff, Case No. 2:25-cv-284

vV. Judge Michael H. Watson

Bath & Body Works, Inc., ef a/., Magistrate Judge Deavers

Defendants.

OPINION AND ORDER

Devin Randolph (‘Plaintiff’) proceeds without counsel and without the

prepayment of fees. ECF No. 5. Pursuant to 28 U.S.C. § 1915(e)(2), the

Magistrate Judge performed an initial screen of Plaintiff's Complaint and

ultimately issued a Report and Recommendation (“R&R”) recommending the

Court dismiss the same. ECF No. 7. Plaintiff objects. ECF No. 8. For the

following reasons, the Court OVERRULES Piaintiff's objections and ADOPTS IN

PART the R&R.

I. FACTS

A generous reading of Plaintiff's Complaint shows the following allegations.

Plaintiff worked at Defendant Bath & Body Works, Inc. (“Bath & Body Works”) for

five months, between September 2022 and February 2023. Compl., ECF No. 6,

at PAGEID # 95. During that time, a doctor diagnosed Plaintiff with tendinitis,

prescribed physical therapy, and imposed restrictions on Plaintiff. /d.; ECF No. 6-

1 at PAGEID # 124. Plaintiff requested a reasonable accommodation for his

Case No. 2:25-cv-284 Page 1 of 17

tendinitis, but Bath & Body Works terminated Plaintiff's employment without

providing an accommodation. Compl., ECF No. 6 at PAGEID ## 95-96.

Plaintiff thereafter filed a disability discrimination charge with Defendant

Equal Employment Opportunity Center (“EEOC”) and engaged Defendant Spitz,

The Employee’s Law Firm (“Spitz Law’) as counsel. /d. at PAGEID # 95.

Defendant Vorys, Sater, Seymour and Pease LLP (“Vorys”) represented Bath &

Body Works. /d. Spitz Law settled the EEOC charge without Plaintiff's consent.

Id. at PAGEID # 98. Plaintiff also complains that the EEOC process was not

transparent. /d. at PAGEID # 99.

il. PROCEDURAL HISTORY

Based on these allegations, Plaintiff sues Bath & Body Works under the

Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act, and

he sues each Defendant under 42 U.S.C. § 1983. Construed liberally, he also

sues Spitz Law for legal malpractice.

The R&R recommends dismissing all of Plaintiff's ADA claims for failure to

allege a disability. R&R 4—7, ECF No. 7. It recommends dismissing Plaintiff's

Title VII race discrimination claim for failure to allege any element of such a

claim. /d. at 7-8. It recommends dismissing Plaintiff's § 1983 claims for failure to

sue a person acting under color of state law. /d. at 8. Finally, having

recommended dismissal of Plaintiff's federal claims, the R&R recommends

declining to exercise jurisdiction over his state-law malpractice claim. /d. at 9.

Plaintiff timely objected. Obj., ECF No. 8.

Case No. 2:25-cv-284 Page 2 of 17

lll. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court reviews de

novo those portions of the R&R to which Plaintiff properly objected. The Court

“may accept, reject, or modify the recommended disposition; receive further

evidence; or return the matter to the magistrate judge with instructions.”

IV. ANALYSIS

On de novo review, the Court OVERRULES Plaintiff's objections but

permits his retaliation claim to proceed.

A. Vorys

The R&R concludes that Plaintiff fails to allege any conduct by Vorys that

could serve as the basis of a claim against it. R&R 8, ECF No. 7. Plaintiff fails to

address this conclusion in his objections and therefore forfeited his right to de

novo review. In the alternative, the conclusion is correct on de novo review.

Plaintiff names Vorys in the heading of the Complaint, but the body of the

Compiaint alleges only that Vorys represented Bath & Body Works before the

EEOC and that Plaintiff's “constitutional rights were violated during the. . .

EEOC ... investigation, and that the process was tainted by unethical actions

taken by... [Vorys]....”). Compl. JJ 7,19, ECF No. 6.

The fact that Vorys represented Bath & Body Works does not make

Plaintiff's allegation that Vory’s “tainted” the EEOC proceeding plausible. Nor

does the Complaint contain any additional facts about Vorys. The Complaint

therefore fails to state a claim against Vorys under /qba/ and Twombly.

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Moreover, even liberally construed, the only claim Plaintiff asserts against

Vorys arises under 42 U.S.C. § 1983, and any § 1983 claim against Vorys fails

for the alternative reason below.

B. Section 1983

Plaintiff sues at least the EEOC under 42 U.S.C. § 1983 for violating his

constitutional procedural Due Process rights under the Fifth and Fourteenth

Amendments and, potentially, his First Amendment right to access the courts. In

an abundance of caution, the Court construes the Complaint as suing each

Defendant under § 1983 for violating Plaintiff's procedural Due Process rights

and his right to access the courts. See, e.g., Compl. J 12, ECF No. 6 (“Plaintiff

alleges that Bath & Body Works, the EEOC Cleveland Branch, and Spitz Law

Firm acted in a manner that violated Plaintiff's Constitutional rights .. . .”); id. at

PAGEID # 98 (“The First Amendment guarantees freedom to petition the

government for a redress of grievances, and the failure of the EEOC to provide

transparency about the status of my case obstructs my ability to fully exercise

this right.”).

The R&R concludes Plaintiff's § 1983 claims fail because he sues only

private parties and a federal agency, neither of which is subject to suit under

§ 1983. R&R at 8-9, ECF No. 7. Plaintiff fails to address this conclusion in his

objections and therefore forfeited his right to de novo review. In the alternative,

the Court accepts this aspect of the R&R on the merits.

Section 1983 states:

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Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbus,

subjects or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress ....

Suits under § 1983 may be brought only against persons acting under

color of state law. Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994) (“To

prove a claim under 42 U.S.C. §1983, a plaintiff must establish: (1) that he was

deprived of a right secured by the Constitution or laws of the United States, and

(2) that he was subjected to or caused to be subjected to this deprivation by a

person acting under color of state law.” (citation omitted) (emphasis added)).

Defendants here are two private law firms (Spitz Law and Vorys), a federal

agency (EEOC), and a private company (Bath & Body Works). No Defendant

acted under color of state law, and Plaintiff therefore cannot sue them under

§ 1983. E.g., Franklin v. Henderson, 15 F. App’x 205, 207 (6th Cir. 2001) (“The

federal government and its officials are not subject to suit under 42 U.S.C.

§ 1983.” (citation omitted));1 Cudejko v. Goldstein, 22 F. App’x 484, 485 (6th Cir.

2001) (“Private attorneys are not considered to be state actors for purposes of

§ 1983.” (citation omitted)); Brotherton v. Cleveland, 173 F.3d 552, 567 (6th Cir.

1 Even if the Court construed the Complaint as asserting a Bivens claim against the

EEOC, the claim would still fail because the EEOC is entitled to sovereign immunity.

Borkins v. United States, No. 98-1668, 1999 WL 777538, at *1 (6th Cir. Sept. 16, 1999)

(“Plaintiffs cannot bring Bivens suits against the United States . . . or its agencies.”

(citations omitted)).

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1999) (“A § 1983 plaintiff may not sue purely private parties.” (citations omitted)).

Accordingly, Plaintiff's § 1983 claims against each Defendant are DISMISSED

WITH PREJUDICE, and all of Plaintiff's claims against the EEOC? and Vorys are

DISMISSED WITH PREJUDICE.

C. ADA

Plaintiff sues Bath & Body works under the ADA. The ADA prohibits

discrimination in employment: “[nJo covered entity shall discriminate 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. It also prohibits retaliation. 42 U.S.C.

§ 12203.

2 Any claim against the EEOC other than a § 1983 claim would likewise fail. “Congress

has not authorized, either expressly or impliedly, a cause of action [under Title Vil]

against the EEOC for the EEOC’s alleged negligence or other malfeasance in

processing an employment discrimination charge.” Smith v. Casellas, 119 F.3d 33, 34

(D.C. Cir. 1997) (citations omitted); see also, e.g., Haddad v. E.E.0.C., 111 F. App’x 413,

415 (6th Cir. 2004) (“Title Vil does not provide either an express or implied cause of

action against the EEOC to challenge its investigation and processing of a charge.”

(citations omitted)); Reed v. E.E.0.C., No. 96-1275, 1996 WL 636171, at *1 (6th Cir.

Oct. 30, 1996) (affirming that neither Title Vil nor the ADA provide a cause of action

against the EEOC for its handling of a discrimination charge); Robinson v. EEOC, No.

24-cv-02947-MSN-tmp, 2024 WL 5483574, at *3 (W.D. Tenn. Dec. 18, 2024) (“[T]his

court cannot review the EEOC’s declining to prosecute Robinson’s discrimination

complaint because this is not a ‘final agency action’ reviewable by courts.” (citations

omitted)), report and recommendation adopted by 2025 WL 898079 (W.D. Tenn. Mar.

24, 2025). Accordingly, the Court dismisses any claim Plaintiff asserts against the

EEOC under the Administrative Procedure Act, the ADA, or Title VII. See Compl., ECF

No. 6 at PAGEID # 99.

Case No. 2:25-cv-284 Page 6 of 17

Plaintiff alleges Bath & Body works violated the ADA by: (1) failing to

engage in the iterative process; (2) failing to accommodate his disability;

(3) retaliating against him after he requested an accommodation; and

(4) terminating him because of his disability. Compl. Jf] 11-15, ECF No. 6.

Theories (1), (2), and (4) allege disability discrimination, and theory (3) alleges

retaliation.

Plaintiff need not plead each element of a prima facia ADA claim to survive

the initial screen. Fedder v. CEMS of Ohio, Inc., No. 24-3028, 2024 WL

5319224, at *4 (6th Cir. Nov. 6, 2024) (“But McDonnell Douglas did not establish

a pleading standard for employment-discrimination plaintiffs. Consequently, a

plaintiff is not required to plead a prima facie case of discrimination to avoid

dismissal at the pleading stage.” (citations omitted)). Rather, Plaintiff need only

satisfy Rule 8(a)’s standard requirements. /d.

For his discrimination claim, that requires Plaintiff to “demonstrate that [Jhe

is disabled within the meaning of the Americans with Disabilities Act, and that

such impairment substantially limits one or more major life activities.” Cf

Bedford v. Michigan, 722 F. App’x 515, 518 (6th Cir. 2018); 29 C.F.R. § 1630.2(g)

(defining “disability” as “[a] physical or mental impairment that substantially limits

one or more of the major life activities of such individual”).

Prior to 2008, the Sixth Circuit had “indicated that temporary injuries do not

qualify as a disability under the ADA.” Lovreta v. Delta Glob. Servs., No. 2:19-cv-

02469-JTF-jay, 2019 WL 8016714, at *4 (W.D. Tenn. Nov. 5, 2019) (citation

Case No. 2:25-cv-284 Page 7 of 17

omitted). But Congress enacted the ADA Amendments Act of 2008 “to broaden

the ADA’s definition of ‘disability.” Roan v. United Parcel Serv., No. 3:17-cv-

01178, 2019 WL 2171488, at *3 (M.D. Tenn. May 20, 2019); report and

recommendation adopted by 2020 WL 91503. The Court must therefore analyze

Plaintiff's Complaint under the current, broader standard when determining

whether he adequately alleged he is disabled under the ADA.

Lifting is a major life activity. 29 C.F.R. § 1630.2(i)(1)(i). And “[a]n

impairment is a disability within the meaning of [the regulation] if it substantially

limits the ability of an individual to perform a major life activity as compared to

most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). Further,

“{t]he effects of an impairment lasting or expected to last fewer than six months

can be substantially limiting within the meaning of this section.” 29 C.F.R.

§ 1630.2(j)(1)(ix).

Here, Plaintiff alleges he suffers from tendinitis and that his doctor

prescribed a month of physical therapy. E.g., Compl., ECF No. 6 at PAGEID

### 95, 98, 101, 137, 150. The letter attached to the Complaint, though, mentions

neither tendinitis nor physical therapy. Rather, it shows Plaintiff's doctor issued a

“Return to School/Work” letter stating Plaintiff's absence (presumably from work)

was due to a doctor’s appointment and ordering “no lifting for 4 weeks” and “[s]it

down breaks every 5 minutes for 4 weeks.” Compl., ECF No. 6-1 at PAGEID

#127. Yet, the letter does not expressly contradict Plaintiff's factual allegations

that he suffers from tendinitis or that the doctor also prescribed physical therapy,

Case No. 2:25-cv-284 Page 8 of 17

so the Court accepts those allegations as true for purposes of this initial screen.

The Court does not take as true, however, Plaintiff's allegation that the condition

would last “the rest of his life,” Compl., ECF No. 6-1 at PAGEID # 136, where the

exhibit expressly includes restrictions for only four weeks. Accordingly, Plaintiff

adequately alleges that he suffered from tendinitis and was prohibited from

lifting/required frequent sit-down breaks for four weeks. Whether these

allegations, if true, adequately allege Plaintiff was disabled under the ADA is a

close call.

As the Magistrate Judge correctly concluded, the revisions to the

regulations did not render toothless the requirement that an individual be

disabled to bring a claim under the ADA. 29 C.F.R. § 1630.2(j)(1)(ii)

(“Nonetheless, not every impairment will constitute a disability within the meaning

of this section.”). “Non-severe impairments that last only a short period of time

are not necessarily covered by the ADA.” Roan, 2019 WL 2171488, at *4; see

also Lovreta, 2019 WL 8016714, at * 4 (“Whether Lovreta has set forth sufficient

facts to plausible infer that she is disabled under the ADA, is a closer question.”),

report and recommendation adopted by 2020 WL 91503; Gleason v. Food City

654, No. 3:13-—CV—712—PLR-HBG, 2015 WL 1815686, at *5 (E.D. Tenn. Apr. 22,

2015) (“Generally, short term, temporary restrictions are not ‘substantially limiting’

and do not render a person disabled under the ADA.” (citations omitted)); cf.

Cook v. Warren Screw Prods., Inc., No. 24-1192, 2025 WL 933637, at *4 (6th Cir.

Mar. 27, 2025) (noting that, although an impairment “need not be permanent or

Case No. 2:25-cv-284 Page 9 of 17

long-term,” “not every impairment will constitute a disability” (internal quotation

marks and citations omitted)). The R&R may indeed be correct that Plaintiff

failed to allege his tendinitis qualifies as a disability, even under the lenient

definition.

The Court need not decide that issue, though, because Plaintiff fails to

allege that he is a “qualified” individual for purposes of his discrimination claim.

See 42 U.S.C. § 12112(a). “The term ‘qualified,’ with respect to an individual with

a disability, means that the individual satisfies the requisite skill, experience,

education and other job-related requirements of the employment position such

individual holds or desires and, with or without reasonable accommodation, can

perform the essential functions of such position.” 29 C.F.R. § 1630.2(m).

“Essential functions” are “the fundamental job duties of the employment position

the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1).

Here, Plaintiff fails to identify his employment position,? let alone allege any

of the fundamental job duties of the position. He also fails to allege what

reasonable accommodation he requested or that he could perform the essential

functions of the job with said reasonable accommodation. And, given the exhibit

to the Complaint states Plaintiff would be prohibited from lifting and required to sit

every five minutes, it is not at all obvious from a plain reading of the Complaint

3 The EEOC charge says Plaintiff worked in “Logistics.” Compl., ECF No. 6-1 at

PAGEID # 115.

Case No. 2:25-cv-284 Page 10 of 17

what accommodation Bath & Body Works could make to permit Plaintiff to

perform the essential job functions.

Because the Complaint fails to allege Plaintiff is a “qualified individual with

a disability,” he fails to state an ADA discrimination claim against Bath & Body

Works, and his ADA claim is DISMISSED WITHOUT PREJUDICE to re-filing with

additional facts. Anderson v. ProCopy Tech., Inc., 23 F. Supp. 3d 880, 889 (S.D.

Ohio 2014) (“If a claimant cannot show that he can perform the essential

functions of a given position with or without an accommodation, he is not a

‘qualified individual with a disability’ within the meaning of 42 U.S.C. § 12111(8).”

(citation omitted)).

However, the R&R also recommends dismissing Plaintiff's ADA retaliation

claim for failure to allege a disability. Plaintiff need not be either disabled or a

qualified individual to state a claim for retaliation. Barrett v. Lucent Tech., Inc., 36

F. App’x 835, 840 (6th Cir. 2002) (“A plaintiff need not actually be disabled to

assert a claim of disability retaliation. The person, however, must have a

reasonable and good faith belief that the opposed act or practice is unlawful

under the ADA.” (citation omitted)), cf. Bryson v. Regis Corp., 498 F.3d 561, 577

(6th Cir. 2007) (“A plaintiff may prevail on a disability-retaliation claim even if the

underlying claim of disability fails.” (internal quotation marks and citation

omitted)). Because the materials attached to Plaintiff's Complaint allege that he

“was told not only would his contract continue but that he would not get cut or his

contract removed for the entire month of January and February because of his

Case No. 2:25-cv-284 Page 11 of 17

achievements],]” and yet he was terminated shortly after making a request for

accommodation while lower performing employees were not, the Court declines

to dismiss the retaliation claim at this juncture. Compl., ECF No. 6 at PAGEID

# 100, ECF No. 6-1 at PAGEID # 131-33.

D. ‘Title VII

Plaintiff also sues Bath & Body Works for race discrimination under Title

VII.

The Complaint alleges, “Defendant engaged in racial discrimination by

denying Plaintiff opportunities for promotion and advancement despite his strong

work performance and the support of his managers[,]” and “Plaintiff's race

contributed to the denial of his right to apply for corporate positions within the

company, further contributing to a hostile work environment.” Compl., ECF No. 6

at PAGEID # 100; see also id. at PAGEID # 102 (“[R]acial discrimination played a

significant role in the denial of Plaintiff's advancement opportunities within Bath &

Body Works.”). Elsewhere, it states, “Plaintiff also experiences discriminatory

treatment based on his race and disability, contributing to a hostile work

environment.” /d. at PAGEID # 101. Plaintiff alleges a letter of recommendation

written on his behalf was not considered “due to both his disability and racial

discrimination” and that he “has witnesses who can attest to the racial issues he

faced within the company.” /d.

Each of the race-discrimination allegations, though, are entirely conclusory.

The Complaint lacks any facts to make plausible Plaintiff's allegation that any

Case No. 2:25-cv-284 Page 12 of 17

adverse action was based on Plaintiff's race.* And, although the Complaint

repeats the phrase “hostile work environment,” it nowhere alleges facts making

plausible the existence of a severe and pervasive hostile environment. The

exhibits supporting the Complaint are somewhat more detailed than the

Complaint itself, but they still consist of only vague allegations, such as Bath &

Body Works historically making “false” and “one-sided” allegations against

African American or Hispanic men and men of color “appear[ing]” to be

underrepresented in leadership roles in the company. Compl., ECF No. 6-1 at

PAGEID ## 113, 114, 157. So, even the allegations in the exhibits accompanying

the Complaint fail to make plausible any allegation that an adverse action was

taken against Plaintiff because of his race or that Plaintiff suffered a severe and

pervasive hostile work environment. Thus, Plaintiff fails to state a Title VIl race

discrimination claim. See Qiu v. Bd. of Edu. of Bowling Green Independent

Schs., KY, No. 24-5368, 2024 WL 5510330, at *2 (6th Cir. Dec. 23, 2024) (“[S]he

alleges no facts supporting this conclusory allegation, such as who the Board

ultimately hired for the position or any details about the application process. Her

broad and conclusory allegations of discrimination cannot be the basis of a

4 The Complaint does not even identify Plaintiff's race. The Court may consider exhibits

attached to Plaintiff's Complaint, however, e.g., Kinney v. McDonough, No. 21-1414,

2022 WL 223633, at *5 (6th Cir. Jan. 26, 2022), and a review of those documents

suggests Plaintiff may fall into a protected class, see, e.g., Compl., ECF No. 6-1 at

PAGEID # 113 (“It seems there may be a pattern of false accusations and narratives

being directed toward African-American men and other men of color within the

company.”); id. at PAGEID # 156 (“This is Bath and Body Works, LLC’s way of trying to

paint Mr. Devin Randolph has [sic] an incompetent person or person of color negatively

....). Even in the exhibits, though, Plaintiff fails to affirmatively state his race.

Case No. 2:25-cv-284 Page 13 of 17

complaint, and she failed to state allegations that plausibly give rise to the

inference that the Board discriminated against her.” (cleaned up)); Kinney, 2022

WL 223633, at *6—7 (“The complaint does not state Kinney’s race or sex and the

amended complaint does not reference the exhibit attached to the motion to

dismiss that references Kinney’s race. Because the amended complaint does

not properly allege that Kinney is a member of a protected class, her claim fails.”

(citation omitted)); Ogbonna-McGruder v. Austin Peay State Univ., 91 F.4th 833,

843 (6th Cir. 2024) (dismissing race discrimination claim because the complaint

did not adequately allege racial animus and instead was conclusory). The Court

adopts the R&R in this regard and DISMISSES WITHOUT PREJUDICE Plaintiff's

Title VII claim against Bath & Body Works for failure to state a claim.

E. Legal Malpractice

Finally, Plaintiff sues Spitz Law for malpractice. Malpractice is a state-law

claim, and there is no diversity jurisdiction in this case. Accordingly, this Court

has jurisdiction over the claim, if at all, only to the extent the Court exercises

supplemental jurisdiction under 28 U.S.C. § 1367.

Pursuant to 28 U.S.C. 1367(a), federal courts exercising federal question

jurisdiction over some claims may exercise supplemental jurisdiction “over all

other claims that are so related to claims in the action within such original

jurisdiction that they form part of the same case or controversy under Article III of

the United States Constitution.” “Claims form part of the same case or

controversy when they derive from a common nucleus of operative fact such that

Case No. 2:25-cv-284 Page 14 of 17

a plaintiff would ordinarily be expected to try them all in one judicial proceeding.”

Basista Holdings, LLC v. Ellsworth Twp., 710 F. App’x 688, 694 (6th Cir. 2017)

(internal quotation marks and citation omitted).

Whether Bath & Body Works fired Plaintiff in retaliation for him requesting

an accommodation for his disability and whether Plaintiff's lawyers subsequently

settled his disability discrimination charge without his consent concern different

operative facts. See Raymer v. Western and Southern Life Ins., Co., No. 5:13-

cv-42, 2013 WL 4875029, at *3 (E.D. Ky. Sept. 11, 2013) (no common nucleus of

operative fact between the underlying employment dispute against the former

employer and the legal malpractice claim against the former law firm for its

handling of case against said former employer). Accordingly, the Court

DISMISSES WITHOUT PREJUDICE Plaintiffs malpractice claim against Spitz

Law for lack of jurisdiction.

F. Right to Sue Letter

Because some claims are dismissed without prejudice, the Court notes

that Plaintiff may sue Bath & Body Works under the ADA and Title VII only if the

EEOC issued him a right-to-sue letter. E.E.O.C. v. Frank’s Nursery & Crafts, Inc.,

177 F.3d 448, 456 (6th Cir. 1999) (“An individual may not file suit under Title VII if

she does not possess a ‘right to sue’ letter from the EEOC.” (citation omitted));

Waggoner v. Carlex Glass Am., LLC, 682 F. App’x 412, 416 (6th Cir. 2017)

(“Before suing an employer, an ADA plaintiff must file a charge with the EEOC

and receive a right-to-sue letter.” (citation omitted)).

Case No. 2:25-cv-284 Page 15 of 17

Although the Complaint references such a letter, e.g., Compl., ECF No. 6

at PAGEID # 97; see also ECF No. 6-1 at PAGEID # 108, Plaintiff failed to attach

it to his Complaint. Plaintiff attaches a printout of a December 25, 2024, email

from the EEOC, but the subject-line of that email reads, “EEOC Charge 532-

2024-00749 has been Closed,” and the body of the email states that the parties

to the charge reached a “Settlement Agreement.” ECF No. 6-1 at PAGEID # 106;

see also Compl., ECF No. 6 at PAGEID # 99 (“Spitz Law Firm engaged in

misconduct by entering into a settlement without Plaintiff's consent.”). Nowhere

does that EEOC email contain “right-to-sue” language. ECF No. 6-1 at PAGEID

# 106.

If Plaintiff's attorneys settled his EEOC charge, Plaintiff might be unable to

sue on the charge in this Court. Cf, Balas v. Huntington Ingalls Indus., Inc., 711

F.3d 401, 407 (1st Cir. 2013) (“If the EEOC cannot reach a voluntary settlement

with the employer, the agency may file a lawsuit or issue a Notice-of-Right-to-Sue

to the employee.” (citations omitted)); Franceschi v. U.S. Dept. of Veterans

Affairs, 514 F.3d 81, 85 (ist Cir. 2008) (“The employee may sue in federal court

only if the EEOC dismisses the administrative charge, or if it does not bring civil

suit or enter into a conciliation agreement within 180 days of the filing of the

administrative charge.” (citing 42 U.S.C. 2000e-5(f)(1))); Dalessandro v. Monk,

864 F.2d 6, 8 (2d Cir. 1988) (“Once a plaintiff settles a claim and withdraws it

from the EEOC, he may not then sue on the same claim in federal court.”).

Nonetheless, the Complaint (and its exhibits) refers to a right-to-sue letter, and

Case No. 2:25-cv-284 Page 16 of 17

the requirement is a condition precedent that can be waived. Cf. Dickerson v.

Assoc. Home Equity, 13 F. App’x 323, 324 (6th Cir. 2001) (“Because the right-to-

sue letter is a condition precedent to filing suit, rather than a jurisdictional

requirement, the requirement of obtaining a right-to-sue letter may be waived by

the parties or the court.” (internal quotation marks and citation omitted)). The

Court does not waive the condition precedent by this Opinion and Order, but the

possibility of Bath & Body Works’ waiver, and the reference to a right-to-sue letter

in the exhibits counsel against dismissing Plaintiff's ADA and Title VII claims at

this preliminary screening stage for failure to attach a right-to-sue letter.

V. CONCLUSION

For the above reasons, Plaintiff's § 1983 claims against each Defendant

are DISMISSED WITH PREJUDICE. Plaintiff's ADA discrimination and Title VII

claims against Bath & Body Works and his legal malpractice claim against Spitz

Law are DISMISSED WITHOUT PREJUDICE. Any other claims against the

EEOC are DISMISSED WITH PREJUDICE. Plaintiff's ADA retaliation claim

against Bath & Body Works may proceed past this initial screening stage.

IT IS SO ORDERED.

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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