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Cleaborn v. Shelby County Board of Education

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

January 2, 2019

TREENA NICOLE CLEABORN, Plaintiff,
v.
SHELBY COUNTY BOARD OF EDUCATION, ANNIECE GENTRY, CHANTAY BRANCH, CECILIA BARNES, GREGORY GLENN, ANTHONY KRONE, and LATERICA ROSE, Defendants.

          REPORT AND RECOMMENDATION ON THE DEFENDANTS' PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT

          DIANE K. VESCOVO, CHIEF UNITED STATES MAGISTRATE JUDGE

         On August 8, 2018, the plaintiff, Treena Nicole Cleaborn filed suit in the Circuit Court of Tennessee for the Thirtieth Judicial District in Memphis against the Shelby County Board of Education (“the Board”) and Principal Anniece Gentry (“Principal Gentry”) claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through 2000e-17. (Compl. ECF No. 1-2.) Specifically, Cleaborn complained of discrimination on the basis of color, claiming that the Board and Principal Gentry subjected her to retaliation, harassment, intimidation, humiliation, and belittlement. (Id. at 3.) The Board and Principal Gentry removed this case to the District Court for the Western District of Tennessee on August 31, 2018. (ECF No. 1.)

         Subsequently, Cleaborn amended her complaint to include additional defendants and claims. (Am. Compl., ECF No. 12.) The amended complaint consists of 24 type-written pages with 102 pages of exhibits attached. (Id.) The amended complaint added five employees of the Board as defendants: Chantay Branch, Labor and Employee Director; Cecilia Barnes, Labor and Employee Manager; Gregory Glenn, Labor and Employee Advisor; Anthony Krone, Risk Management Manager; and LaTerica Rose, Risk Management. It also added five additional claims under federal law: (1) conspiracy against rights, 18 U.S.C. § 241; (2) deprivation of rights under color of law, 18 U.S.C. § 242; (3) indirect violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) by way of retaliation, 18 U.S.C. § 1513(e); (4) violations of the Civil Rights Act, 42 U.S.C. § 1983; and (5) conspiracy to violate Cleaborn's rights, 42 U.S.C. § 1985(3); as well as three Tennessee state law claims: (1) violations of the Tennessee Human Rights Act (“THRA”), T.C.A. § 4-21-101, et seq.; (2) violations of the Tennessee Healthy Workplace Act, T.C.A. § 50-1-501, et seq.; and (3) gross negligence, asserted only against the Board. (Id. at 7.)

         Before the court is the October 10, 2018 motion of all the defendants[1] to dismiss the following claims in Cleaborn's amended complaint: (1) the Tennessee Healthy Workplace Act, T.C.A. § 50-1-501, et seq., (Mot. to Dismiss 6-8, ECF No. 14); (2) 18 U.S.C. § 241, (id.); (3) 18 U.S.C. § 242, (id.); (4) the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1513(e), (id. at 8-11); (5) 42 U.S.C. § 1983, (id. at 13-14); (6) 42 U.S.C. § 1985(3), (id. at 11-12); and (7) Cleaborn's state-law tort claims, (id. at 14-16).[2] Cleaborn filed a response in opposition to the defendants' motion to dismiss for failure to state a claim, (ECF No. 15), the defendants filed a reply (ECF No. 37), and Cleaborn filed a response to the defendants' reply, (ECF No. 41).[3]

         On October 30, 2018, this case was referred to the United States Magistrate Judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate. (ECF No. 18.) For the reasons that follow, it is recommended that the defendants' partial motion to dismiss be granted.

         I. PROPOSED FINDINGS OF FACT

         Cleaborn was employed by the Board during the 2017-2018 school year as a fifth-grade teacher at Dunbar Elementary School. (Am. Compl. 9, 16, 17, 21; ECF No. 12.) Cleaborn claims that Anniece Gentry, Principal of Dunbar Elementary; Chantay Branch, Labor and Employee Director; Cecilia Barnes, Labor and Employee Manager; Gregory Glenn, Labor and Employee Advisor; Anthony Krone, Risk Management Manager; and LaTerica Rose, Risk Management, harassed, intimidated, humiliated, belittled, and retaliated against her because of the color of her skin. (See Am. Compl. 1-4, ECF No. 12.) The majority of Cleaborn's 24-page amended complaint details a perceived pattern of harassment and retaliation against Cleaborn, allegedly spearheaded by Principal Gentry, that Cleaborn claims created a hostile and intimidating work environment. (See Am. Compl., ECF No. 12.)

         Cleaborn asserts that the harassment and intimidation began on September 1, 2017, when Principal Gentry removed items displayed outside of Cleaborn's classroom and put them on her desk with a note stating that the items did not meet expectations. (Id. at 8; Exh. C, ECF No. 12-1.) On September 26, 2017, Principal Gentry allegedly emailed Cleaborn to notify her that her students' test scores were too low and, thus, that Cleaborn was not meeting expectations. (Id. at 9; Exh. D, ECF No. 12-1.) Cleaborn asserts that she was “distraught, irritated, tired of the harassment, and nit-picking, which had become a hostile work environment” by this point and emailed Principal Gentry requesting she “excess” Cleaborn from her position so that Principal Gentry could replace Cleaborn with someone who could meet Principal Gentry's high expectations. (Am. Compl. 9, ECF No. 12.)

         At some point in October 2017, Cleaborn suffered some type of injury, (Exh. F.1, ECF No. 12-1), and informed Principal Gentry that the doctor said she needed to “stay off [her] foot and keep it elevated.” (Exh. F.2, ECF No. 12.) Upon receiving Cleaborn's email and doctor note, Principal Gentry requested additional information regarding Cleaborn's medical restrictions. (Exh. F.2, ECF No. 12-1.) Cleaborn alleges that Principal Cleaborn knowingly requested this information while Cleaborn was off work on an approved vacation day in order to “make it appear that Ms. Cleaborn was not complying with [Principal Gentry's] request.” (Am. Compl. 9, ECF No. 12.)

         Thereafter, on November 6, 2017, Principal Gentry allegedly “came in [Cleaborn's] classroom and started yelling at her, ” (id. at 10), and then required Cleaborn to “walk down three flights of stairs on her hurt foot” against her medical restrictions, (id.; Exh. H, ECF No. 12-1). Cleaborn claims this was an act of retaliation because she previously reached out to Labor and Employee Relations about her grievances with Principal Gentry. (Am. Compl. 10, ECF No. 12.) Three days later, Cleaborn met with Principal Gentry, Barnes, and a union representative to discuss the November 6, 2017 incident. (Id.) During this meeting, Cleaborn requested to be removed from under Principal Gentry “because of how she had been treated and harassed, ” to which Barnes allegedly responded by telling Cleaborn she had not “proved herself as a teacher and started to verbally attack[] Cleaborn.” (Id. at 10-11.) Ultimately, this meeting led to Cleaborn's “demotion” from teaching fifth grade to teaching first grade. (Id. at 11.) Cleaborn claims, however, that she “was shown to have moved the 5th grade students more than any teacher had ever moved students.” (Id.)

         On November 21, 2017, Cleaborn received an email from Labor and Employee Relations that included a document outlining Principal Gentry's job expectations for Cleaborn. (Exh. N, ECF No. 12-1.) Cleaborn alleges Labor and Employee Relations demanded she sign the attached job-expectations form and “agree to allow Principal Gentry to monitor her every move.” (Am. Compl. 11, ECF No. 12.) Cleaborn asserts that Principal Gentry failed to require Ms. Eiland, a teacher also new to teaching first grade, to sign such a document because her skin tone was “darker” than Cleaborn's skin tone. (Id. at 12.) As the defendants note in their motion to dismiss, (Mot. to Dismiss 3, ECF No. 14), neither the email Cleaborn references nor the attached document dictated that Cleaborn was required to sign anything, (Exh. N, ECF No. 12-1).

         On December 5, 2017, Principal Gentry emailed Cleaborn informing her that she failed to meet the deadline to set up hallway bulletin boards. (Am. Compl. 12, ECF No. 12.; Exh. O, ECF No. 12-1.) Cleaborn alleges that Ms. Eiland was not required to set up a hallway board. (Am. Compl. 12, ECF No. 12.)

         On the evening of December 7, 2017, Cleaborn emailed Principal Gentry to inform her that she would be “a few hours late” the next day. (Exh. P, ECF No. 12-1.) In response, Principal Gentry asked Cleaborn to meet with her when she arrived to school. (Id.) Cleaborn alleges that during this meeting Principal Gentry told Cleaborn to leave her office because Cleaborn wanted to record their discussion, (Am. Compl. 13, ECF No. 12), and that a few hours later “Principal Gentry came into []Cleaborn's room yelling at her in front of her students, stomping her foot, and pointing the tip of the walkie-talkie in her face stating she was late for dismissal, ” (Id.).

         On December 11, 2017, Cleaborn informed Principal Gentry that she would be missing work because “her stomach was upset from the stress and harassment” and because “Labor and Employee Relations . . . [has done] nothing” regarding her complaints, “making the work environment more hostile and toxic.” (Id.) Three days later, Cleaborn received an email notifying her that she was required to attend a disciplinary hearing with the Department of Labor and Employee Relations on December 18, 2017 to address an allegation of insubordination. (Id.; see also Exh. T, ECF No. 12-1.) Cleaborn, Gregory Glenn, a labor relations advisor with the Department of Labor and Employee Relations, and a union representative attended the meeting. (Am. Compl. 13, ECF No. 12.)

         On January 3, 2018, Cleaborn claims that Principal Gentry refused to recognize and praise her work during a faculty meeting. (Id. at 14.) The next day, at another faculty meeting, Cleaborn alleges that she informed another teacher that she was being shunned by the teachers on her grade level. (Id.) Cleaborn surmises that this was the result of retaliatory actions taken by Principal Gentry.

         On January 5, 2018, the Department of Labor and Employee Relations notified Cleaborn that she was required to attend another disciplinary hearing on January 11, 2018 to address an allegation of insubordination. (Am. Compl. 15, ECF No. 12; see also Exh. W, ECF No. 12-1.) During the hearing, Cleaborn requested someone other than Principal Gentry perform her teacher observation, but Principal Gentry conducted the observation herself. (Am. Compl. 15-16, ECF No. 12; Exhs. Z.1 & Z.2, ECF No. 12-1.)

         Subsequently, on February 16, 2018, Cleaborn informed Glenn and Branch at the Department of Labor and Employee Relations that Principal Gentry humiliated and embarrassed her in front of other employees and that Principal Gentry did not humiliate Ms. Eiland. (Am. Compl. 16, ECF No. 12; Exh. CC, ECF No. 12-1.) Cleaborn claims that on February 22, 2018, she emailed Principal Gentry, Glenn, Branch, Barnes, and her union representatives to inform them that she would not be attending work on February 23, 2018 because she “was physically ill form [sic] the hostile and toxic work environment” and requested that a documented plan be put in place to end such harassment. (Id.; Exh. DD, ECF No. 12-1.) Cleaborn attached to her amended complaint a letter dated February 22, 2018 from the Department of Labor and Employee Relations explaining that, due to her insubordination and improper conduct, Cleaborn was suspended from work without pay on February 23, 2018. (Exh. EE, ECF No. 12-1.) Cleaborn asserts that this suspension was given to her in retaliation for her complaints about Principal Gentry. (Am. Compl. 16, ECF No. 12.)

         After this suspension, Cleaborn was transferred from her position at Dunbar Elementary to a new teaching position at Holmes Road Elementary, (id. at 17), and was told not to contact Principal Gentry anymore, (Exh. II, ECF No. 12-1). Cleaborn asserts that after this move, Branch continually retaliated against her. Specifically, Cleaborn claims that Branch's retaliatory behavior included forcing Cleaborn to submit to classroom observations at Holmes Road Elementary, sending Human Resources to inform Cleaborn that she was not guaranteed employment during the 2018-2019 school year because her grant funding was no longer available, and encouraging Human Resources to refuse to correct her salary, which Cleaborn alleges was $1, 000 lower than her quoted offer. (Am. Compl. 18, ECF No. 12; see also Exh. JJ, ECF No. 12-1.)

         At some point during her employment, Cleaborn suffered an unspecified on-the-job arm injury. (Am. Compl. 18, ECF No. 12.) Cleaborn claims that Krone and Rose, employees of the Risk Management Department, intentionally caused delay to Cleaborn's ability to receive medical treatment for this injury. (Id.) Specifically, Cleaborn claims that Rose repeatedly refused to approve her doctor's visit for three months, scheduled said appointment on the first day of school which “didn't make her look good professionally, ” and waited three weeks to fill a $3, 000 prescription to “intentionally [keep] her in physical pain.” (Id.) Cleaborn claims that this was intentional collusion by Krone and Rose to harm Cleaborn's reputation and cause her physical pain in retaliation for her complaints about Principal Gentry. (Id.)

         Finally, Cleaborn claims that during the summer of 2018, Principal Gentry deviated from standard procedure and cancelled Cleaborn's account access to her students' scores. (Id. at 19.) Cleaborn also asserts that the Board attempted to deny Cleaborn's unemployment benefits, a decision which was reversed at the Appeals Tribunal level. (Id.)

         Cleaborn claims that all the individually-named defendants' actions described above operated to “deprive her of her rights” and made each individual defendant an unfit agent, such that the Board should be liable for their actions.

         II. PROPOSED CONCLUSIONS OF LAW

         A. Standard of Review for Failure to State a Claim

         In assessing whether Cleaborn's complaint states a claim for which relief may be granted, the court applies the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009) and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). To survive Rule 12(b)(6) dismissal following Iqbal and Twombly, 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, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they 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.

         “Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted by lawyers,' and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir.2004)). 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). Further, the courts are not required to act as counsel for a pro se litigant; nor are they required to sort through the pleadings to create a claim on behalf of the plaintiff. Pliler v. Ford, 542 U.S. 225, 231 (2004)(“[D]istrict judges have no obligation to act as counsel or paralegal to pro se litigants.”); Brown v. Matauszak, 415 Fed.Appx. 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). Requiring the court “to ferret out the strongest cause of action on behalf of pro se litigants . . . would transform the courts from neutral arbiters of disputes into advocates for a particular party.” Young Bok Song v. Gipson, 423 Fed.Appx. 506, 510 (6th Cir. 2011). “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.” Id.

         B. Claims Based on Federal Criminal Statutes, 18 U.S.C. §§ 241 and 242

         Cleaborn asserts that the harassment, intimidation, humiliation, belittlement, and retaliation she suffered at the hands of the defendants violates 18 U.S.C. §§ 241 and 242. (Am. Compl. 7-8, 12, ECF No. 12.) In their motion to dismiss, the defendants argue §§ 241 and 242 are criminal statutes that do not contain a private cause of action; thus, Cleaborn fails to state a claim upon which relief can be granted. (Mot. to Dismiss 6-9, ECF No. 14.) In response, Cleaborn claims that she “referenced the criminal statutes because she wanted to make it clear how bad things were for her.” (Resp. to Mot. to Dismiss 3, ECF No. 22.) Cleaborn seemingly also argues that the “criminal offenses . . . . do provide for civil causes of action.” (Id. at 2.)

         Sections 241 and 242 of Title 18 provide for penalties of fines, imprisonment, or both, when two or more persons: (1) “conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any rights or privileges secured to him” or (2) act under color of law to “willfully subject[] any person . . . to the deprivation of any rights, privileges, or immunities ...


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