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Courts v. Correct Care Solutions, LLC

United States District Court, M.D. Tennessee, Nashville Division

May 23, 2018

PATRICIA COURTS, Plaintiff,
v.
CORRECT CARE SOLUTIONS, LLC, et al., Defendants.

          Trauger, Judge

          REPORT AND RECOMMENDATION

          Joe B. Brown, United States Magistrate Judge

         The undersigned RECOMMENDS for the reasons stated below that: 1) Correct Care Solutions' (CCS) motion to dismiss (Doc. 18) be DENIED IN PART AND GRANTED IN PART; 2) CCS's motion to dismiss BE DENIED WITH RESPECT TO PLAINTIFF'S CLAIMS OF RETALIATION for reporting a co-worker's offensive statements, discussed below at ¶ II.C.2(b)[1] at p. 17; 3) CCS's motion to dismiss BE GRANTED WITH RESPECT TO THE REMAINDER OF PLAINTIFF'S CLAIMS for the reasons explained herein; and 4) CCS's motion to ascertain the status of its motion to dismiss (Doc. 26) be TERMINATED AS MOOT.

         I. BACKGROUND

         Plaintiff, proceeding pro se and in forma pauperis, brought this action on June 15, 2017 alleging violations of the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. § 621, et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.. (Doc. 1) Plaintiff named CCS as a defendant as well as, Jorge Dominicis, Jerry Boyle and Kevin Jordan (Jordan), CEO, Chairman of the Board and Senior Vice President of CCS respectively. Plaintiff attached to her complaint a copy of the Charge of Discrimination (the Charge) that she filed with the Equal Employment Opportunity Commission (EEOC) on May 18, 2017 and the Dismissal and Notice of Rights (right to sue letter) that the EEOC issued on May 24, 2017. (Doc. 1, pp. 6-7 of 31)[1] The Charge alleged discrimination based on race, retaliation, and age. (Doc. 1, p. 6 of 31)

         The complaint was dismissed as to Dominicis, Boyle and Jordan on June 26, 2017 pursuant to initial review under 28 U.S.C. § 1915(e)(2) leaving CCS as the sole defendant. (Doc. 4, p. 2) This action was referred to the undersigned concurrently to “enter a scheduling order for the management of the case, to dispose of or recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)1)(A) and (B), and to conduct further proceedings, if necessary, under Rule 72(b), Fed.R.Civ.P., and the Local Rules of Court.” (Doc. 4, p. 2)

         On July 28, 2017, CCS filed a motion to dismiss for failure to state a claim or, in the alternative, for a more definitive statement. (Docs. 7-8) Plaintiff filed a response on August 1, 2017 (Doc. 9), following which CCS replied on August 7, 2017 (Doc. 12). The undersigned held a telephone conference with the parties on October 5, 2017. (Doc. 15) The undersigned wrote the following in his October 12, 2017 order pertaining to that telephone conference:

[T]he Magistrate Judge will allow the Plaintiff 21 days from entry of this order to file an amended complaint if she chooses to do so. In the event the Plaintiff does file an amended complaint, the Magistrate Judge will terminate the present motion to dismiss or to file a more definite statement (Docket Entry 7) as moot, without prejudice to being refiled in response to the amended complaint. . . .

(Doc. 16, p. 1)(bold in the original)

         Plaintiff filed a motion to amend her complaint on October 20, 2017, attaching a copy of the proposed amended complaint to her motion. (Doc. 17) Thereafter, CCS filed a motion to dismiss on November 3, 2017 (Docs. 18-19), to which plaintiff responded on November 8, 2017 (Doc. 20), and CCS replied on November 13, 2017 (Doc. 23). In the interim, the undersigned entered an order on November 9, 2017 in which he granted plaintiff's motion to amend, instructed the Clerk to file the proposed amended complaint attached to plaintiff's October 20th motion to amend, and terminated CCS's July 28th motion to dismiss as moot. (Doc. 21, p. 1) CCS's November 3, 2017 motion to dismiss (Doc. 18) is now properly before the court.

         II. ANALYSIS

         A. Standard of Review

         In assessing a motion to dismiss under Rule 12(b)(6), the court construes the complaint in the light most favorable to the plaintiff, accepts the plaintiff's factual allegations as true, and determines whether the complaint “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(internal quotation marks and citation omitted). A complaint must provide “more than labels and conclusions . . . a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). The courts are not required to accept as true legal conclusions couched as factual allegations. Bell Atl. Corp., 550 U.S. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level. . . .” Bell Atl. Corp., 550 U.S. at 555. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Ashcroft, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2))(internal citation omitted).

         B. Exhaustion of Administrative Remedies

         CCS argues initially that this action should be dismissed because plaintiff failed to exhaust her administrative remedies in the EEOC. (Doc. 19, ¶ II, pp. 2-7) CCS asserts two specific arguments to that end: 1) plaintiff provided no factual allegations pertaining to age discrimination in the Charge; 2) plaintiff does not allege in the Charge that she was passed over for a promotion. (Doc. 19, ¶ II.A-B, pp. 3-7)

         Exhaustion of administrative remedies is a condition precedent to Title VII and ADEA claims. See Zipes v. TWA, 455 U.S. 385, 392-98 (1982); Hill v. Nicholson, 383 Fed.Appx. 503, 508 (6th Cir. 2010). Even though the requirement is not jurisdictional, the Sixth Circuit requires that adjudication of cases alleging discrimination be “limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.” EEOC v. R.G. & F.R. Harris Funeral Homes, Inc., 884 F.3d 560, 597 (6th Cir. 2018)(citations omitted).

         Turning to CCS's first argument, plaintiff checked the box in the Charge corresponding to “Age.” Plaintiff also asserted the following in the “PARTICULARS” section of the Charge: “I am . . . in the protected age group, ” and “I have been discriminated against . . . in violation of the Age Discrimination in Employment Act of 1967 . . . .” (Doc. 22, p. 16 of 17) The right to sue letter shows that the EEOC considered “the Age Discrimination in Employment Act” in dismissing her complaint. (Doc. 22, p. 15 of 17)(bold in the original) Based on the foregoing, the undersigned concludes that plaintiff exhausted her ADEA claim in the EEOC or, at the very least, an ADEA claim could reasonably be expected to grow out of the Charge. Consequently, CCS's motion to dismiss plaintiff's ADEA claim for failure to exhaust should be denied.

         As for CCS's second argument, i.e., failure to promote, plaintiff checked the box in the Charge corresponding to “Retaliation.” (Doc. 22, p. 16 of 17) Plaintiff also asserted in the “PARTICULARS” section of the Charge that she is an “African American, ” that she complained about harassment, that her job duties were changed, that she received an evaluation that stated her “production was down, ” and that she “was discharged for walking out of [a] meeting” to discuss a “poor relationship” with a co-worker. (Doc. 22, p. 16 of 17) The right to sue letter shows that the EEOC considered “Title VII” in dismissing her complaint. (Doc. 22, p. 15 of 17)

         A plain reading of the Charge reveals that plaintiff made no reference any failure-to promote claim. (Doc. 22, ¶ 36, p. 9) The question becomes, would plaintiff's failure-to-promote claim reasonably be expected grow out of the Charge?

         The Sixth Circuit has held that, “‘where the facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim.'” Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004)(quoting Weigel v. Baptist Hosp. of East Tennessee, 302 F.3d 367, 380 (6th Cir. 2002)). Plaintiff's failure-to-promote claim would not reasonably be expected to grow from the facts alleged in the Charge, because there is nothing in the Charge that would have led the EEOC in that direction during its investigation. For these reasons, plaintiff's failure-to-promote claim is not properly before the court. Consequently, CCS's motion to dismiss plaintiff's failure-to-promote claim for failure to exhaust should be granted.

         The undersigned pauses here to address an additional exhaustion issue that arises from what appear to be vague gender or sex claims in the amended complaint (Doc. 22, ¶¶ 27, 34, pp. 5, 8), addressed below at ¶ II.C.2(a)[1], pp. 12-13. Plaintiff describes the protected class to which she belongs as follows in the amended complaint: “Plaintiff is in a protected class (Black, female, age 48 and a month away from age 49 at [the] time of termination) based on race, age, gender, and so on, as determined by the Equal Opportunity Commission (EEOC).” (Doc. 22, ¶ 8, p. 2)(bold added) The words “female” and “gender” in bold support the notion that plaintiff is asserting gender or sex claims.

         A plain reading of the Charge shows that plaintiff did not check the box in the Charge labeled “SEX” to signal she was raising a gender or sex discrimination claim. (Doc. 22, p. 16 of 17) Moreover, the “PARTICULARS” section of the Charge is silent as to gender and sex. Plaintiff asserts only that “I believe . . . I have been discriminated against because of my race (African American) . . . and my age . . . .” (Doc. 22, p. 16 of 17)(bold added) There also is nothing in the right to sue letter that suggests the EEOC considered gender or sex in reviewing her complaint. (Doc. 22, p. 15 of 17) Finally, there is nothing in the Charge or right to sue letter that would lead one to believe that a gender or sex claim likely would grow from the facts alleged in the Charge. In short, to the extent plaintiff is asserting gender and sex claims in her amended complaint, those claims should be dismissed because plaintiff did not exhaust them in the EEOC prior to raising them in this action. 28 U.S.C. § 1915(e)(2)(B)(ii).

         C. CCS's ARGUMENTS ON THE MERITS

         The undersigned turns next to the merits of CCS's arguments, with respect to which CCS wrote the following in a footnote:

. . . . Plaintiff's claims under the ADEA should be dismissed for failure to exhaust her administrative remedies. In the event the Court believes Plaintiff has satisfied her administrative burden, and because the analysis is similar to that under Title VII, CCS will address Plaintiff's deficient claims of discrimination and retaliation under both Title VII and ADEA together.

(Doc. 19, p. 9 n. 4)(bold added) Notwithstanding CCS's approach, the undersigned will address plaintiff's ADEA and Title VII claims separately for clarity of analysis.

         1. Plaintiff's ADEA Claim

         Plaintiff alleges that CCS discriminated against her because of her age. (Doc. 22, ¶ IV, pp. 12-13) The crux of CCS's argument in its motion to dismiss is that plaintiff has failed to state a plausible ...


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