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Craig v. Tennessee Department of Children's Services

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

June 19, 2018

TANIKA SHUNTA CRAIG, Plaintiff,
v.
TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES, Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO AMEND ORDER TO SERVE PROCESS

          CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant's Motion to Dismiss the Amended Complaint (Docket Entry “D.E.” #12) and Plaintiff's Motion to Amend Complaint (D.E. #15). The instant motions were referred to the United States Magistrate Judge for Report and Recommendation. (D.E. #4). For the reasons set forth herein, it is RECOMMENDED that Plaintiff's Motion to Amend Complaint be DENIED. It is further ORDERED that Plaintiff be permitted thirty days within which to effectuate proper service upon DCS.

         I. Introduction

         On July 21, 2017, Plaintiff Tanika Shunta Craig filed a pro se Complaint against Tennessee Department of Children's Services (“DCS”), Tipton County, and Mary Beth Duke (“Duke”) alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Plaintiff attached a Dismissal and Notice of Rights issued by the Equal Employment Opportunity Commission (“EEOC”) in Charge 490-2016-00463 on May 17, 2017. (Compl. at Exh. 1).

         On September 7, 2017, Plaintiff filed a pro se Amended Complaint against DCS, which also alleged violations of Title VII. Specifically, Plaintiff alleges that she sought employment at DCS in Tipton County, Tennessee at that the department failed to hire her, terminated her employment, and provided unequal terms of employment to her. (Am. Compl. ¶¶ 5, 6).[1] She alleges that these acts occurred from November 2014 through her termination date of February 10, 2015 and constituted discrimination on the basis of race and color. (Am. Compl. ¶¶ 7, 10). As factual support for her claims, she alleges that her employment was terminated by Duke, West Tennessee Regional Investigations Director at DCS, who is Caucasian. (Am. Compl. ¶ 10). She alleges that the termination occurred during her final panel assessment at which she was told that she did “not answer any of the questions wrong” but that she would not be a “good fit for the Department.” (Id.) She alleges that she had already been employed by DCS in Shelby County, Tennessee from 2005 until 2010 in a “similar position” with the “same job description of a Child Protective Services Investigator.” (Id.) She also alleges that her immediate supervisor, Latoya Ward, told her that she did not do anything wrong or answer anything incorrectly. (Id.) She also alleges that she had completed her core training, which required driving back and forth to Nashville, and that her instructor, Todd Love, advised that she passed “with flying colors.” (Id.)

         Plaintiff further alleges that, despite her past experience with DCS in Shelby County and strong performance in Tipton County and in training, she was discriminated against in the Tipton County office by Duke and Stephen Shoffer (“Shoffer”), who was also Caucasian. (Id.) She alleges that Shoffer made “slurred comments, ” referred to himself as a “modern day George Zimmerman, ” stated that his “grandfather hated blacks.” (Id.) She alleges that she was trained by Shoffer despite her position of Investigator 3 being higher than his position of Investigator 2. (Id.) She alleges that Duke made her give up her office to accommodate Shoffer and that she was placed in a “very much smaller” office in another building. (Id.) She also alleges that Shoffer spoke to a DCS employee in Lauderdale County who was Caucasian and was recently hired by DCS and “told her to ask [Duke] if she could be placed in Tipton County . . . where all the White folks were” so that Plaintiff “could go be in Lauderdale County where all the black folks were.” (Id.) Plaintiff alleges that she was “humiliated the entire time” she worked in Tipton County and felt that Stoffer jeopardized her job by lying about her to Duke. (Id.) She alleges that she had been told by an employee that another African American employee had been terminated and that it seemed that Duke and Shoffer “constantly ran off anyone who was not Caucasian.” (Id.)

         On October 3, 2017, DCS filed its Motion to Dismiss the Amended Complaint (“Motion to Dismiss”) pursuant to Rules 12(b)(1) and 12(b)(5) of the Federal Rules of Civil Procedure. DCS asserts that it has not been properly served with process in accordance with Rule 4(j) of the Federal Rules of Civil Procedure. In the alternative, DCS includes Plaintiff's EEOC Charge of Discrimination and argues that it failed to allege discrimination on the basis of color, discrimination based on a failure to hire, or discrimination in the unequal terms and conditions of employment. (Def.'s Mot. to Dismiss, Exh. 1). Thus, Defendant argues that Plaintiff may not pursue these claims in this Court.

         On December 6, 2017, Plaintiff filed a Motion for Permission to Amend the Complaint (“Motion to Amend”). (D.E. #15). Plaintiff alleges that, since she filed her Initial Complaint, “new facts about the Defendant's conduct have emerged” and justice requires that she be permitted the amendment. As an exhibit, Plaintiff attaches her Proposed Second Amended Complaint, which again names Duke as a Defendant and, for the first time, also names Shoffer as a Defendant. (Pl.'s Mot to Amend, Exh. 1). She alleges discrimination based only upon termination of her employment. (Id. ¶ 6). She also includes the majority of the factual allegations as contained in her Amended Complaint. (Id. at PageID 49).[2]

         Also on December 6, 2017, this Court issued an Order to Show Cause to Plaintiff requiring her to respond to Defendant's Motion to Dismiss by December 20, 2017. (D.E. #14). On December 16, 2017, Plaintiff responded to this Court's Order to Show Cause and Defendant's Motion to Dismiss (“Plaintiff's Response”). The style of Plaintiff's Response listed the “State of Tennessee Attorney General Office and Reporter” as the Defendant. Plaintiff's Response further stated that she attempted to serve Defendant by sending certified mail to the “Tennessee Department of Children Services' Attorney General's office.” (Resp. to Mot. to Dismiss at 1). She stated that it was her understanding that this was the correct address but that, since the Order to Show Cause, she has “reissued and reserved.” (Id.) As Exhibit A to her Response, Plaintiff attaches a United States Postal Service certified mail receipt addressed to “Office of the Attorney General, P.O. Box 20207, Nashville, TN, 37202-0207.” (Id. at 3).

         On March 1, 2018, DCS filed a Reply in Support of its Motion to Dismiss and a Response in Opposition to Plaintiff's Motion to Amend. (D.E. #21). DCS asserts that its Motion to Dismiss should be granted because Plaintiff has failed to cure service of her Amended Complaint. DCS further opposes Plaintiff's Motion to Amend and asserts that the proposed amendments are futile because they add no new allegations and fail to state claims against the proposed new Defendants Duke and Shoffer. DCS argues that, despite Plaintiff's claims that the Proposed Second Amended Complaint contained “new facts about the Defendant's conduct [that] have emerged to justify amendment, Plaintiff fails to include any new factual allegations in the Proposed Second Amended Complaint. DCS argues that the Proposed Second Amended Complaint fails to indicate whether Duke and Shoffer are sued in the individual or official capacities or both; however, regardless, DCS asserts that the Proposed Second Amended Complaint fails to state a claim against Duke and Shoffer because there is no individual liability under Title VII. DCS also argues that Plaintiff's attempt to “unilaterally change[]” the Defendant to the Office of the Attorney General must fail because she has no claim against it and, even if she did, that she failed to exhaust her administrative remedies and establish the jurisdiction of this Court by means of an EEOC issued Dismissal and Notice of Rights as to it.

         II. Proposed Analysis

         A. Plaintiff's Motion to Amend

         The Court will first consider Plaintiff's Motion to Amend, as it will determine the operative pleading in this case. This request is governed by Rule 15(a)(2). Although leave to amend should be freely granted, Fed.R.Civ.P. 15(a), such leave should not be granted in cases of “undue delay, undue prejudice to the opposing party, bad faith, dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, or futility.” Foman v. Davis, 371 U.S. 178 (1962).

         Here, Plaintiff's basis for seeking leave to amend is based upon the alleged discovery of new factual information; however, Plaintiff's Proposed Second Amended Complaint does not contain any new factual allegations. Instead, it contains verbatim the same allegations as the Amended Complaint.[3] The only actual proposed amendment that varies from the Amended Complaint is to add Duke and Shoffer as Defendants. Although Plaintiff does not specify whether she seeks to add them as defendants in their individual or official capacities, either amendment would be futile. There is no individual liability under Title VII such that a supervisor or co-worker may be held personally liable because they do not meet the definition of an “employer.” Wathen v. General Elec. Co., 115 F.3d 400, 404 (6th Cir. 1997). Further, a Title VII suit against supervisor in his or her official capacity is treated as suit against employer itself. Jennifer Maudlin v. Inside Out Inc., No. ...


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