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Herring v. City of Memphis

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

July 17, 2017

JANICE F. HERRING, Plaintiff,
v.
CITY OF MEMPHIS, Defendant.

          ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

          SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is the Chief Magistrate Judge's Report and Recommendation, filed April 20, 2017, recommending that the Court grant in part and deny in part Defendant City of Memphis's Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 14). (ECF No. 18.) Pro se Plaintiff Janice F. Herring filed a Complaint against Defendant City of Memphis (the “City”) on December 21, 2016, alleging employment discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (“ADEA”). (Compl., ECF No. 1.) In her Amended Complaint, filed February 14, 2017, Plaintiff alleged claims for “age discrimination, harassment, intimidation and last but not least retaliation, ” in addition to a claim that the City violated the Equal Pay Act (“EPA”). (Am. Compl. ¶¶ 1, 10, ECF No. 13.)

         On February 23, 2017, the City filed a Motion to Dismiss Plaintiff's Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. (ECF No. 14.) Plaintiff responded with a document entitled “Janice Herring Views and Response to City of Memphis Allegations, ” which the Chief Magistrate Judge and the Court interpret as a response to the Motion to Dismiss. (ECF No. 17.) Now before the Court is the Chief Magistrate Judge's Report and Recommendation (“R&R”), recommending that the City's Motion to Dismiss be granted in part and denied in part. (ECF No. 18.) Following the entry of the R&R, Plaintiff filed a document entitled, “Request to Proceed with Claim & Additional Amended Complaint, ” which the Court interprets as an objection to the R&R. (ECF No. 19.) The City did not file any objections or a response to Plaintiff's objection.

         For the reasons discussed below, the Court ADOPTS the R&R in its entirety. In reviewing Plaintiff's objection, it appears that she attempts to again amend her Complaint in the objection to add an additional claim, which is not the proper procedure. Plaintiff has not shown that she is entitled to file an Amended Complaint, nor has she requested leave to do so.[1]

         STATEMENT OF THE CASE

         I. Factual Allegations[2]

         Plaintiff, who is 55 years old, applied for a General Clerk B position with the City. (Am. Compl. ¶ 2, ECF No. 13; ECF No. 13-1.) Plaintiff was hired as a General Clerk B with the Parks & Neighborhoods/Neighborhood Watch Division and given a tentative start date of July 27, 2015, with a starting bi-weekly salary of $949.65. (ECF No. 13-1 at PageID 49-50.) The job offer included a six-month probationary period. (Id. at PageID 51.) Plaintiff understood that she would be working normal business hours and would not be required to use a vehicle. (Am. Compl. ¶ 4, ECF No. 13.) However, upon starting with the City on August 10, 2015, she was placed in a position of Organizer, a category 2 position, but with a General Clerk B Category 1 salary. (Id.) Plaintiff claims that, in the new position, she was informed that she would have to work flexible hours, including evenings, and that she would be required to drive to attend meetings and site visits around the city. Plaintiff further alleges that the original position she was offered was filled by a young man named Matt. (Id. at ¶ 8.)

         On August 19, 2015, Plaintiff states that she met with Dr. LaSonya Hall, Deputy Director of the Neighborhood Watch Division, to express her concerns that she did not own a vehicle and would not have applied for the position she was ultimately placed in, in addition to concerns regarding working irregular hours due to her care of an elderly uncle who suffered from Alzheimer's disease. (Id. at ¶ 4.) Further, Plaintiff expressed concern that she had not received any training for her position. (Id.) In response, Plaintiff alleges that Dr. Hall stated that “her 17 year old daughter could take notes and use an e-mail.” (Id.) Plaintiff also states that Dr. Hall offered her a “pool car, ” to enable her to drive, which she declined. (Id. at ¶ 6.)

         Plaintiff alleges that she met with Dr. Hall again on September 9, 2015, to discuss her concerns, during which Dr. Hall informed her that she should take a “week's severance” and be placed back on the City's job placement system to get another position with the City. (Id. at ¶ 6.) The following day, on September 10, 2015, Plaintiff was terminated from her position as a General Clerk B in the Neighborhood Watch Program effective September 18, 2015, for “failure to meet performance expectations.” (ECF No. 13-1 at 57.) Plaintiff was replaced by Karlescia Brookins, who was 26 years of age and had been acting as Plaintiff's supervisor, although she had been employed by an organization other than the City at the time. (EEOC Charge 8-10, ECF No. 13-4.) Plaintiff submitted a charge with the Equal Employment Opportunity Commission (“EEOC”) on November 4, 2015, alleging age discrimination under the ADEA. (Id.)

         II. Procedural Posture

         Plaintiff filed this pro se Complaint on December 21, 2016, alleging that her former employer, the City, discriminated against her on the basis of her age, in violation of the ADEA. (ECF No. 1.) On February 14, 2017, Plaintiff filed an Amended Complaint, alleging additional facts related to the age discrimination claims, and adding claims that the City violated the EPA retaliated against her, harassed her and allowed a hostile work environment. (ECF No. 13.) The City filed a Motion to Dismiss (ECF No. 14), arguing that Plaintiff's Amended Complaint fails to plead any facts or statutes that confer subject matter jurisdiction on the Court. On April 20, 2017, the Chief Magistrate Judge issued an R&R, recommending that Defendant's Motion to Dismiss be granted in part and denied in part. (ECF No. 18.) Plaintiff filed a timely objection on May 2, 2017 (ECF No. 19), to which Defendant did not respond. The City filed no objections.

         Although Plaintiff's filing lacks specific objections, the Court construes her submission as lodging two general objections to the Chief Magistrate Judge's findings. First, Plaintiff objects to the finding that she did not suffer any adverse employment action because she received the same rate of pay when placed in the category 2 Organizer position rather than the General Clerk B for which she was hired. Next, Plaintiff appears to object to the finding that she failed to exhaust her administrative remedies as to her retaliation claim. It does not appear that Plaintiff has objected to any other findings of fact or law by the Chief Magistrate Judge.

         ANALYSIS

         I. Stand ...


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