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Newton v. Select Staffing & Esi Companies, Inc.

United States District Court, W.D. Tennessee, Western Division

January 15, 2015



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.


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.)[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.)[2]


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 be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2).

B. Standard of Review for Failure to State a Claim

In assessing whether the complaint in this case states a claim on which relief may be granted, the court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). "A complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir. 2009)(quoting Iqbal, 556 U.S. at 678). The court "construes the complaint in a light most favorable to [the] plaintiff" and "accepts all factual allegations as true" to determine whether they plausibly suggest an entitlement to relief. HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012). However, "pleadings that... are no more than conclusions[] are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 ("Rule 8(a)(2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice' of the nature of the claim, but also grounds' on which the claim rests."). The Supreme Court's decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002), makes clear that Title VII plaintiffs are not required to plead the elements of a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). All that is required is that the complaint comply with "Rule 8(a)'s simplified pleading standard." Swierkiewicz, 534 U.S. at 513.

" Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed." Williams, 631 F.3d at 383 (internal quotation marks omitted). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F.App'x 608, 613 (6th Cir. 2011)("[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading.")(internal quotation marks omitted); Payne v. Sec'y of Treas., 73 F.App'x 836, 837 (6th Cir. 2003)(affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2) and stating, "[n]either this court nor the district court is required to create Payne's claim for her"); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004)("District judges have no obligation to act as counsel or paralegal to pro se litigants."); Young Bok Song v. Gipson, 423 F.App'x 506, 510 (6th Cir. 2011)("[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.").

C. Newton's Title VII Gender Discrimination Claim

Newton alleges in her Charge of Discrimination that she was denied employment opportunities because of her sex. (Charge of Discrimination, ECF No. 1-1.) The essential elements of a Title VII gender-discrimination claim, in the case of a person's nonselection for a job, are: 1) that the plaintiff is a member of a protected class; (2) that she applied for, and did not receive, a job; (3) that she was qualified for the job; and (4) that a similarly situated individuals of opposite gender received the job. Seay v. Tenn. Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003)(citations omitted).

Newton's complaint fails under the third and fourth prong of the prima facie case. As to the third prong, Newton does not allege any facts to show what job she applied for and whether she was qualified for the job to which she applied. As to the fourth prong, Newton does not allege that a similarly situated male received the job or any facts to infer that she suffered an adverse employment action because of her gender.

Further, there are no factual allegations that Select Staffing played any role in the decision to not hire Newton. Taking Newton's allegations as true, it appears that Rodney Jefferson - an ESI employee - denied Newton employment because she refused to have sex with him. (Charge of Employment, ECF No. 1-1.) To the extent that Newton alleges that Select Staffing failed to refer her for employment because of her gender, her complaint fails to plead any facts sufficient for the court to infer such discrimination. See 42 U.S.C.A. § 2000e-2(b)(stating that employment agencies may not refuse to refer for employment any individual because of his race, color, religion, sex, or national origin).

Because Newton has failed to plead facts sufficient for the court to infer the essential elements of a gender discrimination claim against either defendant, this court recommends that Newton's sex discrimination claim be dismissed against both defendants for failure to state a claim upon which relief can be granted.

D. Newton's Title VII Retaliation Claim

In her Charge of Discrimination, Newton alleges that she was denied employment opportunities by Rodney Jefferson, an ESI employee, "in retaliation for refusing sexual advances." (Charge of Discrimination, ECF No. 1-1.) To establish a prima facie case of retaliation, Newton must show:

(1) she engaged in activity protected under Title VII; (2) the defendant knew that she engaged in the protected activity, (3) the defendant subsequently took an adverse, retaliatory action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisory, and (4) the protected activity and the adverse action were causally connected.

Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 736 (6th Cir. 2006)(citations omitted). There are two types of "protected activity" for purposes of a Title VII retaliation claim: (1) "oppos[ing] any practice made an unlawful employment practice" by Title VII, and (2) making a charge, testifying, assisting, or participating in an "investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2000e-3(a).

Newman has not alleged any facts suggesting that Select Staffing was involved in any Title VII retaliatory action. Newman's allegations on this claim are aimed towards ESI. Therefore, the court recommends that any purported claim against Select Staffing be dismissed for failure to state a claim.

As to the remaining retaliation claim against ESI, there are no allegations in the complaint that Newman made a charge, participated in a hearing or investigation of discrimination Title VII. Rather, Newman retaliation claim on the argument that Newman is based on allegations that she engaged in a protected activity by opposing a practice made unlawful by Title VII.

It is undisputed that reporting or participating in an investigation of sexual harassment is a protected activity under Title VII. See Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 736 (6th Cir. 2006). It is less clear, however, whether declining sexual advances by a prospective employer constitutes "opposing" an unlawful practice. Courts are divided on whether or not refusal to submit to a supervisor's sexual advances constitutes "protected activity." See Gauny v. Potter, No. CA 4:06-504-TLW-TER, 2008 WL 4413193, at *11 (D.S.C. Sept. 23, 2008)(listing district court cases that have held that rejecting a sexual advance is protected activity and cases that have held that it does not amount to protected activity).

The Sixth Circuit has stated that the "opposition clause protects not only the filing of formal discrimination charges with the EEOC, but also complaints to management and less formal protests of discriminatory employment practices." Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014)(citations omitted); see also Wells v. Securitas Sec. Servs. USA, Inc., No. 07-15500, 2009 WL 818005, at *4 (E.D. Mich. March 27, 2009)("[O]pposition need not rise to the level of a formal complaint in order to receive statutory protection." (internal quotation marks and citation omitted)). The term "oppose" carries its ordinary meaning, which is to resist, antagonize, to contend against, to confront, or withstand. Laster, 746 F.3d at 730 (citations omitted).

Construing the complaint liberally and accepting all factual allegations as true, the court finds that Newman's allegations are sufficient for the court to infer the essential elements of a retaliation claim. In the instant case, Newman alleges that Jefferson, an ESI employee, requested that Newman have sex with him on four occasions, all of which she denied. (Charge of Discrimination, ECF No. 1-1.) Newman's act of declining the sexual advances could amount to an expression of opposition of the unlawful employment practice of sexual harassment. As to the causation prong, Newman alleges that as a result of her refusal of Jefferson's sexual advancements she was denied an employment opportunity. A causal link between the protected activity and the adverse employment action "can be shown by either of two methods: (1) through direct evidence; or (2) through knowledge coupled with a closeness in time that creates an inference of causation." Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000)(citation omitted). The court finds at this stage that the close temporal proximity coupled with Newman's allegation that she possesses a recorded conversation of Jefferson asking her for sex sufficiently allege the element of causation.


For the foregoing reasons, it is recommended that Newton's Title VII claims against Select Staffing be dismissed and that Newton's Title VII gender discrimination claim against ESI be dismissed for failure to state a claim.

It is further recommended that the Clerk be directed to issue process for ESI Companies, Inc. and to deliver that process to the marshal for service; that service be made on ESI Companies, Inc. pursuant to Rule 4(h)(1) of the Federal Rules of Civil Procedure; and that all costs of service be advanced by the United States.[3]

It is further recommended that Newton be ordered to serve a copy of every document filed in this case on the attorney for ESI Companies, Inc., make a certificate of service on every document filed, familiarize herself with the Federal Rules of Civil Procedure and this court's local rules, [4] promptly notify the Clerk of any change of address or extended absence, and be warned that failure to comply with these requirements, or any other order of the court, may result in the dismissal of her case without further notice.

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