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Worthy v. Selph

United States District Court, S.D. Georgia, Brunswick Division

July 9, 2018

ANTHONY G. WORTHY, Plaintiff,
v.
DYLAN SELPH; MIKE BLOCK; and WOODY FOLSOM AUTOMOTIVES, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         On May 2, 2018, Plaintiff filed this action, pro se, pursuant to the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., the Genetic Information Nondiscrimination Act of 2008 (“GINA”), 42 U.S.C. § 2000ff et seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12111 et seq., alleging employment discrimination and retaliation against him by Defendants. (Doc. 1.) Concurrent with his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis. (Doc. 2.) As set forth below, because it appears that Plaintiff has exhausted his administrative remedies, the Court GRANTS Plaintiff's Motion to Proceed in Forma Pauperis and ORDERS service of his Complaint. The Court DIRECTS the United States Marshal to serve Defendant Woody Folsom Automotives with a copy of Plaintiff's Complaint and this Order. However, I RECOMMEND that the Court DISMISS Plaintiff's claims against Defendants Selph and Block as well as Plaintiff's putative ADEA, GINA, and ADA claims for failure to state a claim.[1]

         PLAINTIFF'S ALLEGATIONS

         In his Complaint, Plaintiff states Defendants discriminated against him in violation of Title VII, the ADEA, the ADA, and GINA. (Doc. 1, pp. 4-5.) Plaintiff asserts he was subjected to homophobic and racial slurs and discriminatorily assigned hard manual labor. (Id. at p. 2.) Plaintiff alleges that Defendants forced him to sweep an entire car lot, rather than using a blower, which caused him to pass out and be hospitalized. (Id. at pp. 2, 8.) Defendants Block and Selph, also employees of Defendant Woody Folsom Automotives, harassed Plaintiff about his inability to pay his medical bills. When Plaintiff complained about the hostile work environment to a manager, Defendant Woody Folsom Automotives terminated Plaintiff's employment, stating “We've found out that you are filing charges, now you got something to file.” (Id. at pp. 8-9.)

         STANDARD OF REVIEW

         Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows an inability to pay the filing fee and also includes a statement of the nature of the action which shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii); Grayson v. Mayview State Hosp., 293 F.3d 103, 113 n.19 (3d Cir. 2002) (non-prisoner indigent plaintiffs are “clearly within the scope of § 1915(e)(2)”); Dutta-Roy v. Fain, No. 1:14-CV-280-TWT, 2014 WL 1795205, at *2 (N.D.Ga. May 5, 2014) (frivolity review of indigent non-prisoner plaintiff's complaint).

         When reviewing a complaint on an application to proceed in forma pauperis, the Court is guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed.R.Civ.P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without arguable merit either in law or fact.'” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

         Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Rundle, 393 Fed.Appx. 675, 678 (11th Cir. 2010). Under that standard, this Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

         In its analysis, the Court will abide by the long-standing principle that the pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys . . . .”) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”).

         DISCUSSION

         I. Plaintiff's Complaint

         Plaintiff sets forth facts that arguably state plausible wrongful termination, hostile work environment, and retaliation claims arising under Title VII. See Clark v. S. Broward Hosp. Dist., 601 Fed.Appx. 886, 891 (11th Cir. 2015) (To establish a prima facie disparate treatment claim a plaintiff must show that he: (1) is a member of a protected class; (2) was qualified for the job; (3) suffered an adverse employment action; and (4) was replaced by someone outside the protected class or that the employer treated similarly situated employees outside of his class more favorably. (citation omitted)); Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248-49 (11th Cir. 2014) (To establish a hostile work environment claim a plaintiff must prove that: (1) he is a member of a protected class; (2) he was subjected to racial harassment; (3) the harassment was based on his race; (4) the harassment was sufficiently severe or pervasive to alter the conditions of the his employment and create an abusive working environment; and (5) the employer is either directly or vicariously liable. (citation omitted)); Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013) (To state a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in statutorily protected activity; (2) he suffered materially adverse action; and (3) there was a causal connection between the protected activity and the adverse action. (citation omitted)).

         Plaintiff, however, fails to allege any facts that would implicate the ADEA, the ADA, or GINA. For example, other than checking a conclusory box, Plaintiff fails to include his age or assert that Defendants discriminated against him because of his age. (Doc. 1, pp. 2, 5, 8-9.) Likewise, Plaintiff fails to state any facts relating to discrimination under the ADA or GINA, to wit he does not discuss any disability or use of his genetic information. Accordingly, the Court should DISMISS all of Plaintiff's ADEA, ADA, and GINA claims for failure to state a claim upon which relief can be granted. See Anderson v. Fulton Cty. Gov't, 485 Fed.Appx. 394 (11th Cir. 2012) (dismissal proper where plaintiff failed to describe any specific allegations against defendant). Additionally, the Court should DISMISS all of Plaintiff's claims against Defendants Selph and Block because individual employees are not subject to liability under Title VII. Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006) (holding “relief under Title VII is available against only the employer and not against individual employees whose actions would constitute a violation of the Act”). Thus, Plaintiff's Title VII claims may only proceed against Defendant Woody Folsom Automotives.

         II. Initial Review of Exhaustion of ...


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