United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION ON THE DEFENDANTS'
PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT
K. VESCOVO, CHIEF UNITED STATES MAGISTRATE JUDGE
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.)
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.)
the court is the October 10, 2018 motion of all the
defendants 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). 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.
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.
PROPOSED FINDINGS OF FACT
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.)
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.)
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.)
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
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).
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.)
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.).
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.)
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.
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.)
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.)
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.
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.
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.
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
PROPOSED CONCLUSIONS OF LAW
Standard of Review for Failure to State a Claim
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.
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.
Claims Based on Federal Criminal Statutes, 18 U.S.C.
§§ 241 and 242
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.)
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