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Parker v. Joseph Construction Co.

March 26, 2008

LESTER P. PARKER, III, PLAINTIFF,
v.
JOSEPH CONSTRUCTION COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas W. Phillips United States District Judge

(Phillips/Shirley)

MEMORANDUM AND ORDER

Plaintiff filed this pro se action on May 2, 2007, alleging discrimination based on his race and sex in violation of Title VII of the Civil Rights Act of 1964. This matter is now before the court on defendant Joseph Construction Company's motion to dismiss [Doc. 12], plaintiff's motion for summary judgment [Doc. 26], plaintiff's request for entry of default [Doc. 27], and defendant Joseph Construction Company's motion for sanctions [Doc. 37].

I. BACKGROUND

The facts as follows are taken from the complaint and plaintiff's attachment thereto of his allegations before the Equal Employment Opportunity Commission ("EEOC"). In July 2006, plaintiff alleges he was the victim of racial and sexual harassment. Plaintiff alleges that defendant Wimpy Loveday, a fellow employee, made lewd sexual gestures and remarks toward him. Plaintiff further alleges that defendant Kenny Massengill*fn1 , his acting supervisor, used racial slurs and cursed him whenever he instructed plaintiff to do a job. Finally, plaintiff alleges a particular incident in which defendants Loveday and Massengill each participated in a particularly lewd incident, in which plaintiff alleges a piece of rebar was thrust into his buttocks. Plaintiff alleges that defendants Loveday and Massengill merely laughed at this incident, after which plaintiff, either injured, embarrassed, or both, "lost time" and went home.

Plaintiff alleges that July 16, 2006 was his final day of work. It is unclear from the pleadings whether plaintiff chose to end his employment or whether Joseph Construction Company terminated him. In any event, plaintiff further alleges that defendants Massengill and Loveday "came to [his] neighborhood looking for [him] after they were aware [he] had taken enough of the bigotry and sexual discrimination." [Doc. 3 at 2].

Having exhausted his administrative remedies, plaintiff applied for leave to file suit in this court in forma pauperis, which this court granted. [Docs. 1 and 2]. After filing this action, defendant Joseph Construction Company filed a motion to dismiss [Doc. 12]. Plaintiff has apparently had some difficulties serving defendants Massengill and Loveday, and this court has already denied a motion for entry of default [Doc. 15], as well as extended plaintiff's time to serve defendants Massengill and Loveday [Doc. 19]. Plaintiff then filed a motion for summary judgment [Doc. 26] and a renewed request for entry of default [Doc. 27], in response to which the court requested the Honorable C. Clifford Shirley, United States Magistrate Judge, to determine whether defendants Massengill and Loveday had been properly served. As Judge Shirley determined, to date, plaintiff has failed to serve properly these defendants. Defendant Joseph Construction Company subsequently moved this court to impose sanctions on plaintiff [Doc. 37].

Currently pending before this court are defendant Joseph Construction Company's motion to dismiss, plaintiff's motion for summary judgment, plaintiff's (renewed) request for entry of default, and defendant Joseph Construction Company's motion for sanctions.

II. ANALYSIS

A. Motion to Dismiss

When considering a motion to dismiss under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted," Fed. R. Civ. Pro. 12(b)(6), a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." DIRECTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The court, however, "need not accept as true legal conclusions or unwarranted factual inferences." Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). Defendant's motion may only be granted if, after assuming all allegations are true, plaintiff fails "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).

In its sparse motion to dismiss, defendant Joseph Construction Company ("Joseph Construction"), without further elaboration, argues that plaintiff's complaint should be dismissed because it "does not establish any facts or claims against Joseph Construction which could be viewed, even when presented in the light most favorable to the Plaintiff, as a violation of applicable law. In fact, Plaintiff's Complaint does not allege any facts or claims against Joseph Construction." [Doc. 12 at 1].

At this stage in the proceedings, however, the court has insufficient information to determine whether there has been a violation of Title VII. Moreover, defendant's motion fails to assist the court to make any meaningful determination regarding whether plaintiff has failed to state a claim upon which relief can be granted. Finally, pro se pleadings are liberally construed, e.g., Owens v. Keeling, 461 F.3d 763, 775 (6th Cir. 2006); Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005), and this court therefore reviews the complaint and attachments thereto more leniently than it might for a represented party.

Presented with the facts as plaintiff alleges, which the court must accept as true, and lacking any meaningful input from defendant as to why these allegations fail to "raise a right to relief above the speculative level," Twombly, 127 S.Ct. at 1965, this court cannot dismiss plaintiff's complaint at this stage in the proceedings. Accordingly, defendant Joseph Construction's motion to dismiss [Doc. 12] is denied, subject to renewal upon a properly substantiated motion to dismiss or motion for summary judgment. The court further notes that given the undeveloped record in this case, a motion for a more definite statement under Rule 12(e) of the Federal Rules of Civil Procedure would have been more appropriate at this stage, not a motion to dismiss. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ยง 1356 (3d ed. 2004) ("If the complaint is ...


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