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Lovreta v. Delta Global Services

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

January 8, 2020

BARBARA LOVRETA, Plaintiff,
v.
DELTA GLOBAL SERVICES, Defendant.

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND PARTIALLY DISMISSING CASE

          JOHN T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff Barbara Lovreta's pro se Complaint against Defendant Delta Global Services (“Defendant”) filed on July 22, 2019. (ECF No. 1.) Plaintiff also filed a Motion seeking leave to proceed in forma pauperis (ECF No. 2.), which was granted on August 13, 2019. (ECF No. 7.) Plaintiff asserts that Defendant discriminated against and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“the ADEA”), and the Americans with Disabilities Act of 1990 (“the ADA”). The Magistrate Judge, upon screening Plaintiff's complaint, entered a Report and Recommendation on November 5, 2019 to PARTIALLY DISMISS all of Plaintiff's claims, except Plaintiff's failure to accommodate claim under the ADA. (ECF No. 9.) No objections were filed by Plaintiff. For the reasons below, the Court ADOPTS the Magistrate Judge's Report and Recommendation to PARTIALLY DISMISS Plaintiff's Complaint.

         FACTUAL HISTORY

         In the Report and Recommendation, the Magistrate Judge provides, and this Court adopts and incorporates, proposed findings of fact in this case. (ECF No. 9, 2-3.)

         LEGAL STANDARD

         Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts by permitting the assignment of certain district court duties to magistrates.” United States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may hear and determine any pretrial matter pending before the Court, except various dispositive motions. 28 U.S.C. § 636(b)(1)(A). Upon hearing a pending matter, “the magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact.” Fed.R.Civ.P. 72(b)(1); see also Baker v. Peterson, 67 Fed.Appx. 308, 310 (6th Cir. 2003). Any party who disagrees with a magistrate's proposed findings and recommendation may file written objections to the report and recommendation. Fed.R.Civ.P. 72(b)(2).

         The district court reviews a magistrate judge's proposed findings and recommendation. The standard of review that is applied depends on the nature of the matter considered by the magistrate judge. See Baker v. Peterson, 67 Fed.Appx. 308, 310 (6th Cir. 2003) (citations omitted) (“A district court normally applies a ‘clearly erroneous or contrary to law' standard of review for nondispositive preliminary measures. A district court must review dispositive motions under the de novo standard.”). Upon review of the evidence, the district court may accept, reject, or modify the proposed findings or recommendations of the magistrate judge. Brown v. Board of Educ., 47 F.Supp.3d 665, 674 (W.D. Tenn. 2014); see also 28 U.S.C. § 636(b)(1). The court “may also receive further evidence or recommit the matter to the [m]agistrate [j]udge with instructions.” Moses v. Gardner, No. 2:14-cv-2706-SHL-dkv, 2015 U.S. Dist. LEXIS 29701, at *3 (W.D. Tenn. Mar. 11, 2015). “Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2). “When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72(b) advisory committee notes.

         28 U.S.C. § 1915(e)(2) Screening

         Pursuant to Local Rule 4.1, service will not issue in a pro se case where the pro se plaintiff has been granted leave to proceed in forma pauperis until the complaint has been screened under 28 U.S.C. § 1915(e)(2)(B). LR 4.1(b). Specifically, courts are required to screen in forma pauperis complaints and dismiss any complaint, or portion thereof, if the allegation of poverty is untrue or if the action (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted, or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

         Standard of Review for Failure to State a Claim

         In assessing whether Plaintiff's Complaint states a claim upon which relief may be granted, the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010). “Accepting all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (alteration in original) (quoting Iqbal, 556 U.S. at 681). Additionally, although not free from basic pleading requirements, pro se pleadings are “held ‘to less stringent standards than formal pleadings drafted by lawyers,' and should therefore be liberally construed.” Curtin, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Even so, pro se litigants must adhere to the Federal Rules of Civil Procedure, and the Court cannot create a claim that has not been spelled out in a pleading. Falkner v. United States, No. 11-2982-STA-cgc, 2012 U.S. Dist. LEXIS 93372, at *16 (W.D. Tenn. July 6, 2012).

         ANALYSIS

         Plaintiff asserts that Defendant discriminated against and retaliated against her in violation of: Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“the ADEA”), and the Americans with Disabilities Act of 1990 (“the ADA”). At this stage in the proceeding, the analysis turns upon whether the plaintiff has provided sufficient factual content for the Court to be able to reasonably infer the alleged illegal discrimination occurred. Keys v. Humana, Inc., 684 F.3d 605, 609-10 (6th Cir. 2012). Plaintiff is not required to allege the prima facie elements of employment discrimination claims under the burden shifting standard set forth in McDonnel Douglas v. Green, 411 U.S. 792 (1973). Id.

         Title ...


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