United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION FOR PARTIAL SUA SPONTE DISMISSAL
DIANE K. VESCOVO, Chief Magistrate Judge.
On December 15, 2014, the plaintiff, Niekeyea Newton ("Newton"), filed a pro se complaint against the defendants, Select Staffing and ESI Companies, Inc. ("ESI"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). (Compl., ECF No. 1.) Accompanying the complaint was a motion seeking leave to proceed in forma pauperis, (ECF No. 2), which the court granted on December 9, 2014, (ECF No. 4). 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. (Admin. Order 2013-05, Apr. 29, 2013.) For the reasons that follow, it is recommended that both Newton's Title VII claims against Select Staffing be dismissed for failure to state a claim and that Newton's Title VII gender discrimination claim against ESI be dismissed for failure to state a claim but that process issues for Newton's retaliation claim against ESI.
I. PROPOSED FINDINGS OF FACT
Newton filed her complaint on a court-supplied form styled "Complaint under Title VII of the Civil Rights Act of 1964." In the complaint, Newton alleges that the defendants discriminated against her because she did not "want to exchange sex for employment." (Compl. ¶ 9, ECF No. 1.) She did not check any of the boxes for a protected class under Title VII. When asked to describe the circumstances under which the defendants discriminated against her, Newton only states: "sexual harassment."
The complaint states that Newton filed charges against the defendants with the Equal Employment Opportunity Commission ("EEOC") on February 24, 2014, and that the EEOC issued a Notice of Right to Sue which was received by her on September 25, 2014. ( Id. ¶¶ 7, 8.) Newton has attached to her complaint two Charges of Discrimination she filed with the EECO, one against Select Staffing and once against EST, but she has not attached to her complaint the right-to-sue notice from the EEOC. ( See Charge of Discrimination, ECF No. 1-1.) In both Charges of Discrimination Newton checked the sex discrimination and retaliation boxes, and described the circumstances as follows:
On or about September 2013, I completed several employment applications with the above employer for placement. I attempted to obtain employment in October 2013 and February 2014. However, I was not referred to ESI or any other location for employment. Rodney Jefferson with ESI informed me that he had pulled my application. After I refused to have sex with him for employment, I was denied employment opportunities. He requested for me to have sex with him at least four times. I have a recorded conversation of him asking me for sex.
I believe I have been discriminated against because of my sex (female) and in retaliation for refusing sexual advances in violation of Title VII of the Civil Rights Act of 1964, as amended.
(Charge of Discrimination 1, 2, ECF 1-1.)
II. PROPOSED CONCLUSIONS OF LAW
A. 28 U.S.C. § 1915(e)(2) Screening
Pursuant to Local Rule 4.1(a), service will not issue in a pro se case where the pro se plaintiff has been granted leave to proceed in forma pauperis until the complaint has been screened under 28 U.S.C. § 1915(e)(2). The clerk is authorized to issue summonses to pro se litigants only after that review is complete and an order of the court issues.
This report and recommendation will constitute the court's screening. The court is required to screen in forma pauperis complaints and to 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 ...