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Towns v. Memphis/Shelby County Health Department

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

June 4, 2018

ROY A. TOWNS, Plaintiff,
v.
MEMPHIS/SHELBY COUNTY HEALTH DEPARTMENT, Defendant.

          ORDER

          SAMUEL H. MAYS, JR., UNITED STATES DISTRICT JUDGE.

         Before the Court is the Magistrate Judge's Report and Recommendation, dated April 25, 2018 (the “Report”). (ECF No. 26.) The Report recommends that:

(1) [Defendant Memphis/Shelby County Health Department's] first motion to dismiss (ECF No. 18) be dismissed as moot; (2) [Plaintiff Roy A. Towns's] Amended Complaint (ECF No. 19) be deemed the operative complaint; (3) [Defendant's] Partial Motion to Dismiss Amended Complaint for Lack of Subject Matter Jurisdiction (ECF No. 21) be granted; and (4) paragraphs 9(yy) through 9 (1111) of the Amended Complaint be dismissed.

(Id. at 717.) Neither party has objected to the Report.

         For the following reasons, the Report is ADOPTED. Defendant's Motion to Dismiss is DENIED AS MOOT, and Defendant's Partial Motion to Dismiss Amended Complaint is GRANTED. The allegations in paragraphs 9(yy) through 9(1111) of the Amended Complaint are DISMISSED.

         I. Background

         On August 25, 2017, Plaintiff filed a pro se Complaint alleging gender discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 200e-17 (“Title VII”). (ECF No. 1.)

         Also on August 25, 2017, Plaintiff applied to proceed in forma pauperis. (ECF No. 2.) On September 18, 2017, the Court granted Plaintiff's motion to proceed in forma pauperis. (ECF No. 7.)

         On December 18, 2017, Defendant filed a Motion to Dismiss. (ECF No. 18; see also ECF No. 18-1.) The Motion to Dismiss argues that the Court should dismiss several of the allegations in Plaintiff's Complaint for lack of subject matter jurisdiction. (ECF No. 18-1 at 359-61.)

         On January 5, 2018, Plaintiff filed an Amended Complaint. (ECF No. 19.) The Amended Complaint alleges race discrimination, gender discrimination, and retaliation in violation of Title VII. (Id. at 364.) The Amended Complaint alleges that between July 1, 2012, and October 27, 2015, Plaintiff, an environmentalist employed by Defendant, experienced discrimination and retaliation when “a female employee was given [Plaintiff's] zone, ” “Plaintiff was transferred to a new zone . . . and he had to learn a new zone, ” “Plaintiff was harassed when [he was] told that [he] had a turn-around time of two hours to submit re- ports, ” “Plaintiff was issued reprimands, ” “Plaintiff was later accused of insubordination, ” “Plaintiff was denied sick leave, ” “Plaintiff's department's quota increased, ” and “Plaintiff was followed by Defendant (Mays, Manager) and asked about work.” (Id. at 366-68.) Those allegations are included in an Equal Employment Opportunity Commission (“EEOC”) Charge of Discrimination and Right to Sue Notice that is attached to Plaintiff's Amended Complaint. (ECF Nos. 19-1, 19-2.)

         The Amended Complaint also alleges discrimination and retaliation related to a Charge of Discrimination filed by Plaintiff on December 11, 2015. (ECF No. 19 at 369.) The allegations in paragraph 9(yy) through paragraph 9(1111) of the Amended Complaint refer to a “charge of Discrimination [filed] with the EEOC [in] December 2015” complaining of “verbal sexual discrimination and harassment [by] 2 female Managers in July 2009.” (Id. at 270.) The allegations in those paragraphs are not described in the EEOC Charge attached to the Amended Complaint.

         On January 16, 2018, Defendant filed its Partial Motion to Dismiss Amended Complaint. (ECF No. 21; see also ECF No. 21-1.) The Partial Motion to Dismiss argues that “the Court lacks subject matter jurisdiction over the allegations set out in Paragraphs 9(yy-1111) of the Amended Complaint.” (ECF No. 21-1 at 695.) Plaintiff responded on February 12, 2018. (ECF No. 22.) Defendant replied on February 16, 2018. (ECF No. 23.)

         On April 25, 2018, United States Magistrate Judge Tu M. Pham entered the Report. (ECF No. 26.) The Report reasons that, because the EEOC Charge attached to the Amended Complaint does not make “any reference to the other allegations that [Plaintiff] lists in paragraphs 9 (yy) through 9 (1111) of the Amended Complaint, ” those allegations “must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).” (Id. at 716-17.)

         II. ...


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